Central Administrative Tribunal - Delhi
Shri Yogesh vs The Commissioner on 9 September, 2009
Central Administrative Tribunal Principal Bench OA No.2405/2009 New Delhi, this the 9th day of September, 2009 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Shri Yogesh, S/o Shri Mahender Singh Ex Regular Group D Chowkidar, Municipal Corporation of Delhi, Posted at Ghumenra Dispensary New Delhi. Applicant. (By Advocate : Sh. R. K. Shukla) versus 1. The Commissioner Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 2. The Administrative Officer (Health) Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. Respondents. : O R D E R : Honble Dr. Ramesh Chandra Panda, Member (A) :
Shri Yogesh, the Applicant herein, who was terminated by the order dated 30.4.2009 (Page 16) approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following directions to :-
(a) direct the respondents to produce the relevant records which give rise to assess that the appointment of the applicant was made on the basis of fraudulent appointment;
quash and set aside the impugned order (Annexure-A1) commanding the respondents to reinstate the applicant in service with full back wages and continuity of service alongwith all consequential benefits;
direct the respondents to pay the arrears of pay, as admissible under the law; and pass any other and further order which this Honble Tribunal may deem fit and proper be also passed in favour of the applicant and against the respondents.
2. It is the case of the Applicant that while working as Chowkidar on casual basis at Leprosy Home Tahirpur an order dated 29.11.2005 (Pages 17-18) was passed regularizing his services and posted at Ghumanhera Dispensary. It is stated that 127 Group-D employees services were terminated by the Municipal Corporation of Delhi (MCD for short), on the grounds of appointment/regularization in fraudulent manner and those terminated employees challenged the order of termination, by filing respective Writ Petitions in Honble High Court of Delhi (Writ Petition No.8379-99/2006, 8268-85/2006 and 9576/2006) upholding the decision of the Single Judge Bench of the Honble High Court of Delhi directed the MCD that the persons whose services had been terminated without holding any inquiry and without calling for show cause notice being illegal ab initio, such orders were remanded to the MCD. In case of the Applicant it is stated that a show cause notice was issued to him, against which, he has submitted his reply and thereafter his services were terminated by the Respondents vide order dated 30.04.2009. The Applicant has raised a question in the instant case that whether the Respondents had taken into consideration the relevant documents including the work performance of the Applicant while passing an order of regularization? Therefore, the decision taken by the Respondents for terminating the Applicants services is highly belated since the Applicant had already completed his two years probation and thereafter he has been terminated without holding a proper inquiry.
3. Shri R. K. Shukla, the learned Counsel for the Applicant, very extensively argued the case and contended that (a) without holding regular enquiry and departmental disciplinary proceedings, the Applicant could not have been terminated by the Respondents, (b) Respondents failed to appreciate the grounds raised by the Applicant in his reply to the show cause notice, (c) This being a termination stigmatic the normal disciplinary proceedings should have been followed to remove the Applicant and (d) it is stated that the Applicant was a permanent employee of MCD and not a temporary employee and, therefore, the Rules of MCD for permanent employee should have been applied before order of termination was issued.
4. It was further stated by Shri Shukla that if it was a case of illegal regularization of services of the Applicant, the MCD should have adopted CCS (CCA) Rules, 1965 treating the same as misconduct and issued detailed charge sheet and followed the normal disciplinary proceedings before passing any final order. In the present case, Shri Shukla contended that detailed departmental enquiry was not held but only after getting the reply of the Applicant to the show cause notice the termination order has been passed.
5. In support of his contentions, learned Counsel for the Applicant has relied on the judgment of Honble Supreme Court in the case of Telecom District Manager and Others versus Keshab Deb (2008) 8 SCC 402 decided on 6.5.2008. The main contention in this regard was that the appellant in the said case has committed a misconduct for which he was terminated from service. It was the observations of Honble Supreme Court that there should have been an opportunity accorded to the Appellant and regular departmental proceedings should have been initiated against him and the termination order being stigmatic in nature, the termination itself was considered as illegal. While allowing the appeal of the Appellant it was observed that the Courts should take into consideration the factors relevant that (a) whether the recruitment of the Respondent was ex facie illegal as prior thereto neither any advertisement was issued nor the employment exchange was notified in regard to the vacancy, (b) It did not appear that the respondent had even got himself registered with the local employment exchange. (c) He being a daily-rated casual employee did not have any right to continue in service. The Keshav Debs case (supra) is based on different facts and circumstances from the present OA. The present OA is of regularization of the Casual Chowkidar whose initial appointment has been in question on the grounds of fraud and, therefore, the Keshab Debs case (supra) is clearly distinguishable and the law laid in that judgment of Honble Supreme Court would not be applicable in the present OA.
6. The Respondent No.2, after considering the explanation of the Applicant found that there was nothing available for his initial engagement and he got himself posted to Ghumanhera Dispensary on the basis of a forged regularization and transfer order. The forged office order dated 29.11.2005 and the forged letter dated 7.12.2005 read as follows :-
5612/AO(H)/RCS/2005 Dated 29.11.2005 OFFICE ORDER
This service of Shri Yogesh S/o Sh. Mahender Singh Daily wages Chowkidar of Leprosy Home Tahir M.C.D. is hereby regularized w.e.f. 1.4.2004 in the pay scale of Rs.2550-55-2660-6-3200 plus usual allowances.
Consequent upon regularization he is posted at Ghumenhara Dispensary. He will draw his salary and joint against a vacant post of Chowkidar.
The appointment is subject to the following terms and conditions:-
The appointment is subject to the clearance of probation period of two years.
The appointment is subject to Medical fitness Medical Slip may be taken from the office of the under signed with 15 days.
It is subject to satisfactory report of police verification with regard to his character and antecedents.
The appointment can be terminated by either party one months salary or one months Notice in lieu thereof.
The incumbent will have to produce two copies each of certificate and testimonials along with original for verification.
He will have to furnish declaration as under:-
I unmarried/married and have only one living the marriage has been contracted with a person have no living spouse. He can be transferred to any Mpl. Institutions/Hospital within the jurisdiction of M.C.D. The appointment is subject to Rules and Regulations as applicable to Mpl. Employees from time to time. He will have to produce a character certificate from a Distt. Magistrate/Magistrate (1st Class) or any two Gazetted Officers/members of parliament/M.L.A. known to him for the last three years. If any declaration made or information furnished by him proved to the false or any material/information is found to have willfully suppressed, he shall be liable to removed from services and for such other action as the appointing authority may deem fit. This issues with the prior approval of Addl. Commissioner (Health) dated 12.4.05.
ADMN. OFFICER (HEALTH) Letter No.615/LHT/2005-2006 Dated 07.12.05
In Compliance is O.O.No. 5612/AO(H)/RCS/2005 dated 22/11/05, Sh. Yogesh S/o Sh. Mahender Singh, D/W (Chowkidar), regularized w.e.f. 01.04.2004 in Leprosy Home, Tahir Pur, Delhi. Sh. Yogesh (Chowkidar) is upon regularization transferred & posted Ghumenera Dispensary, Delhi with immediate effect. Sh. Yogesh (Chowkidar) relieved at Dated 07.12.05 (AN) & directed to report MOIC Ghumenera Dispensary, Delhi for further duties.
-sd-
Medical Officer Incharge Leprosy Hospital (M.C.D.) Tahirpur Shahdara, Delhi
7. The cases of fraudulent appointment in MCD were considered by the learned Single Judge of the Honble High Court of Delhi in WP(C) No.8379-99/2006, 8268-85/2006 and 9576/2006 and decided that by depriving the petitioner of an opportunity to explain their version and also to produce the relevant records in their possession and to establish their authenticity, the termination from service was found to be arbitrary and unjustified and such termination orders were set aside. The operative part of the judgment is extracted below :-
39. In view of the aforesaid facts and circumstances the impugned orders dated 1st May, 2006 terminating the services of the petitioners are hereby quashed. However, this does not preclude the respondent from holding an enquiry and considering the materials afresh before passing appropriate orders in respect of each of the petitioners, in accordance with law. Considering the gravity of the charges levelled by the respondent against the petitioners to the effect that their initial employment with the respondent was made on the basis of fake and fraudulent documents and that even their regularization letters were not issued by the competent authority, the court does not deem it appropriate to direct reinstatement of the petitioners with all consequential benefits, including back wages. While setting aside the impugned order and directing reinstatement of the petitioners, it is ordered that in case an enquiry is decided to be held by the MCD, then the entire exercise shall be undertaken and completed within a period of six months from the date of this order and in the even the petitioners ultimately succeed in establishing their bonafides, they shall be at liberty to claim all the consequential benefits, including backwages as may be permissible in accordance with law.
8. The Respondent MCD appealed against the above cited judgment which was considered by Honble High Court of Delhi in LPA No. 1176/2007 and LPA No.1184/2007. While upholding the judgment of learned Single Judge, the following judgment was passed on 9.10.2007 in both LPAs :-
11. We are of the considered opinion that the manner in which action is taken against the respondent by the appellant is outside and exceeds the parameters of Section 95(2) (b) of the Act. In that view of the matter and for the reasons stated hereinabove, we find no reason to take a different view than what is taken by the learned Single Judge. We may, however, hasten to add that we are not required to examine at this point how and what procedure should be followed by the appellant. Accordingly, while we do not interfere with the order passed by the learned Single Judge, we give liberty and leave it open to the appellant to proceed in the matter in accordance with law.
9. The Respondent MCD, in the present case, issued a show cause notice dated 12.12.2008 (Page-94) and on receipt of the explanation/reply (Pages 96-98), examined the same. It was found by the MCD that the Applicant did not enclose any document relating to his initial engagement as daily wager in MCD and concluded that the Applicant was never engaged on daily wage basis by MCD and managed work in Ghumanhera Dispensary on the basis of forged regularization/transfer order. The fraudulent engagement of the Applicant was terminated vide MCD Office Order dated 30.04.2009 (Page-16). The said order reads as follows :-
OFFICE ORDER Sh. Yogesh S/o Sh. Mahender Singh, Chowkidar, was posted in Ghumanhera Dispensary against the vacant post of Chowkidar vide regularization office order No-5612/AO(H)/RCS/2005 dt. 29.11.2005 issued supposedly under the signature of the then Administrative Officer (H) wherein he has been shown working as daily wager in Leprosy Home Tahirpur, MCD.
Sh. Yogesh joined his duty in Ghumanhera Dispensary on the basis of above said regularization/posting order. The Audit Department vide letter dated 11.03.08 reported to Deputy Commissioner, Nazaf Garh Zone that during enquiry from the M.O.I/C Leprosy Home Shahdra it revealed that Sh. Yogesh S/o Sh. Mahender Singh had never worked in Leprosy Home, Shahdara on daily wages. The file of Sh. Yogesh was sent to MO I/C Leprosy Home Shahdara by the office of AO(H) for verification of his daily wages services and the MO I/C Leprosy Home, Shahdara has reported that as per record Sh. Yogesh S/o Sh. Mahender Singh, Daily wager, Chowkidar has not worked in Leprosy Home Tahirpur.
A show cause notice vide No-AO (H)/KAJ/Gf-779/08/1501 dt. 12.12.08 was issued to Sh. Yogesh with direction to submit the reply of the show cause notice along with the documents of initial engagement and proof of salary drawn or any other relevant document within a period of 07 days.
In response to above show cause notice he has submitted his reply but has not enclosed any documents related to his initial engagement as daily wager in MCD.
His documents available with the department were scrutinized by this office and it was found that there is nothing available for his initial engagement. This shows that he was never engaged on Daily Wage basis by the MCD; however, he managed to work in Ghumanhera Dispensary on the basis of forged regularization/transfer order as mentioned above.
In view of above, the fraudulent engagement of Sh. Yogesh S/o Sh. Mahender Singh, Chowkidar is hereby terminated with immediate effect.
This issues with the approval of Competent Authority.
-sd-
Administrative Officer (Health)-II
10. The facts of this case reveal that (i) the Applicant was stated to have been working as daily wage Chowkidar at Leprosy Home Tahirpur (ii) the Applicant was indicated to have been regularized and posted in the vacant post of Chowkidar at Ghumanhera Dispensary; (iii) the Audit Department, during the enquiry, detected vide their letter dated 11.3.2008 that the Applicant never worked in the Leprosy Home Tahirpur on daily wage; (iv) further verification confirmed the detection of the Audit Department of MCD; (v) the Applicant was issued a show cause notice dated 12.12.2008; (vi) he submitted his reply but did not enclose any document relating to his initial engagement as daily wager in MCD; (vii) it was found that the Applicant was engaged to work in Ghumanhera Dispensary on the basis of forged regularization/transfer order; and (viii) he was ultimately terminated with the approval of the Competent Authority.
11. We notice that this is the part of a scam and the coordinated Bench of this Tribunal where one of us (Honble Mrs. Meera Chhibber, Judicial Member) authored the order dated 19.8.2009 in TA No.97/2009 between Satish Chand Gupta versus Municipal Corporation of Delhi and Another, has very comprehensively dealt with the issues coming up before us in this OA. While relying on the judgments of Honble Supreme Court in the case of State of Bihar versus Upendra Narayan Singh and Others [2009-5-SCC-65]; (b) Directorate of Film Festivals versus Gaurav Ashwin Jain [2007-4-SCC-737]; and (c) State of Manipur and Others versus Y. Token Singh and Others [2007-3-Scale-319], this Tribunal decided Satish Chand Guptas case (supra) as follows :-
41. Ratio as laid down in above cases would apply to the present case also because here the regularization itself was bad in law, therefore, if it is withdrawn, it would not give any right to the petitioners. Moreover, it is for the petitioners to show what legal right they have. Since petitioners have not demonstrated violation of any legal right, we find no ground to interfere in this case. The TA is dismissed. No order as to costs.
12. We considered the issues raised by the Applicant in the present OA at the admission stage and heard the learned Counsel for the Applicant. We do not consider it necessary to issue notice to the Respondent, as we come to the considered conclusion that the present OA is fully covered by this Tribunals judgment in TA No.97/2009. In the result, the Original Application is dismissed in limine. No costs.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber)
Member (A) Member (J)
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