Central Administrative Tribunal - Delhi
Azad Kumar vs Municipal Corporation Of Delhi on 25 October, 2011
Central Administrative Tribunal Principal Bench, New Delhi T.A.No.51/2010 With T.A.No.1429/2009 This the 25th day of October 2011 Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) TA 51/2010 1. Azad Kumar S/o Shri Ram Kishan R/o K-544, Manglapuri, New Delhi-110083. 2. Mukesh Rani W/o Shri Om Singh D/o Shri Ram Singh C/o Rajpal Bharti R/o Village Kichripur Delhi-110092. 3. Kamla Devi W/o Shri Moti Lal H.No.258, Block D-3 Nand Nagri, Delhi-92. 4. Bhuvnesh Chand S/o Dinesh Chand R/o C-62, Uttri Chajjupur, Gali No.3, Shahdara, Delhi-110094. 5. Raja Kaka S/o Shri Ramji Lal R/o D-1/271, Sultanpuri, Delhi-110086. 6. Rahi Sudden S/o S. Zabardeen R/o E-Block, Gali No.15, Amar Colony, Shahdara, Delhi-110032. 7. Vimlesh Rani W/o Ved Parkash H.No.60, Nehru Gali, Maujpur, Delhi-110053. 8. Ashok Kumar S/o Shri Sohan Pal 58/139, Krishna Nagar, Delhi-110051. 9. Simla Devi W/o Shri Joginder Singh H.No.D-2, Gali No.6, Shiv Vihar, Karawal Nagar, Delhi. 10. Pushpa Rani W/o Shri Vinod Kumar D-34A, Gali No.8, Jyoti Colony, Delhi. 11. Kushal Pal S/o Shri Sohan Pal 707, Tahirpur Sarai, Delhi. 12. Nirmala W/o Raj Kumar 128, Sector 9, Pocket-4, 4th Floor, LIG Flats, Narela, Delhi. 13. Smt. Bimla W/o Shri Anand Jagdamba Colony, Johripur, Delhi-110094. ..Petitioners (Mr. Pardeep Gupta, Mr. Parnav Gupta, Mr. Keshav K Chaudhary And Mr. Kunal Juneja, Advocates) Versus 1. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandni Chowk, Delhi. 2. The Director Primary Education, MCD Kashmere Gate, Delhi-6. 3. Assistant Commissioner (Edn.), Municipal Corporation of Delhi, Kashmere Gate, Delhi. 4. Assistant Education Officer (Cl.IV), Municipal Corporation of Delhi, Education Officer, Headquarter, Kashmere Gate, Delhi. ..Respondents (By Advocate: Mr. Rajender Khatter and Mr. K.M. Singh) TA 1429/2009 1. Azad Kumar S/o Shri Ram Kishan R/o K-544, Manglapuri, New Delhi-110083. 2. Mukesh Rani W/o Shri Om Singh D/o Shri Ram Singh C/o Rajpal Bharti R/o Village Kichripur Delhi-110092. 3. Kamla Devi W/o Shri Moti Lal H.No.258, Block D-3 Nand Nagri, Delhi-92. 4. Bhuvnesh Chand S/o Dinesh Chand R/o C-62, Uttri Chajjupur, Gali No.3, Shahdara, Delhi-110094. 5. Raja Kaka S/o Shri Ramji Lal R/o D-1/271, Sultanpuri, Delhi-110086. 6. Rahi Sudden S/o S. Zabardeen R/o E-Block, Gali No.15, Amar Colony, Shahdara, Delhi-110032. 7. Vimlesh Rani W/o Ved Parkash H.No.60, Nehru Gali, Maujpur, Delhi-110053. 8. Simla Devi W/o Shri Joginder Singh H.No.D-2, Gali No.6, Shiv Vihar, Karawal Nagar, Delhi. 9. Pushpa Rani W/o Shri Vinod Kumar D-34A, Gali No.8, Jyoti Colony, Delhi. 10. Nirmala W/o Raj Kumar 128, Sector 9, Pocket-4, 4th Floor, LIG Flats, Narela, Delhi. 11. Smt. Bimla W/o Shri Anand Jagdamba Colony, Johripur, Delhi-110094. 12. Ashok Kumar S/o Shri Sohan Pal 58/139, Krishna Nagar, Delhi-110051. 13. Kushal Pal S/o Shri Sohan Pal 707, Tahirpur Sarai, Delhi. ..Petitioners (Mr. Pardeep Gupta, Mr. Parnav Gupta, Mr. Keshav K Chaudhary And Mr. Kunal Juneja, Advocates) Versus 1. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandni Chowk, Delhi. 2. The Director Primary Education, MCD Kashmere Gate, Delhi-6. 3. Assistant Commissioner (Edn.), Municipal Corporation of Delhi, Kashmere Gate, Delhi. 4. Assistant Education Officer (Cl.IV), Municipal Corporation of Delhi, Education Officer, Headquarter, Kashmere Gate, Delhi. ..Respondents (By Advocate: Mr. Rajender Khatter and Mr. K.M. Singh) O R D E R
Mr. M L Chauhan:
By this common order, we propose to dispose of both the TAs (TA Nos.51/2010 and 1429/2009), as the common question of law and facts is involved.
2. These TAs have a chequered history. The petitioners were initially engaged by the respondents in the year 1998 and are working as such since then. They filed writ petition before the High Court of Delhi, thereby praying that their services be regularized under the Municipal Corporation of Delhi (MCD) and they be paid the salary in regular grade as paid to the employees on regular rolls of the MCD. Since the petitioners were also apprehending their disengagement/termination, the challenge was also made before the High Court qua this aspect. The High Court, while disposing of the various writ petitions by a common order, including CW No.1675/2000, which was filed by the petitioners and other persons, did not grant the relief of regularization. However, regarding disengagement/ termination of the services of the petitioners on the basis of the forged appointment letters, the High Court held that being disputed questions of fact arise, ratio laid down in the case of Suresh Kumar & another v. MCD, 2001 (VII) A.D. Delhi 276 applies to this case also. Thus, in sum and substance, the issue of termination of the services of the petitioners on the ground that letter of appointment is forged was not decided on merits and the petitioners were relegated to alternative remedy where the party can lead the evidence and decide this issue. Accordingly, the petitioners in the present TAs filed civil suit, thereby, inter alia, seeking a decree of permanent injunction in favour of the plaintiffs and against the defendants not to terminate their services besides other declaratory reliefs regarding regularization of services and payment of wages, etc. The said civil suit was subsequently transferred to this Tribunal and registered as TA-51/2010. However, the said TA was earlier disposed of by this Tribunal vide order dated 16.7.2011 holding that since the petitioners had already approached the High Court for the same relief and the writ petitions were dismissed, the petitioners could not have filed another civil suit for claiming the same relief of regularization. In fact while claiming the relief in the civil suit, the petitioners have referred to the interim order passed by the High Court without realizing that once the writ petition is finally dismissed, no reliance can be placed on the interim order as the interim order merges into the final order. As far as their prayer against termination is concerned, this Tribunal observed that such relief is based on their apprehension, as no termination order has been passed. This Tribunal agreed with the contention of the respondents that no cause of action for the petitioners to approach the Court arises. Thus, it was held that the suit was not maintainable, as the same relief has already been rejected by the High Court.
3. It may be stated that the petitioners have also moved CM (M) 74/2008 in TA 1429/2009 in the High Court challenging the order dated 10.1.2008 whereby the interim stay granted by the Civil Judge was vacated by the Additional Distt. Judge, Tis Hazari, Delhi. This Tribunal also, vide the order dated 16.7.2011, agreed with the reasoning given by the Additional Distt. Judge while vacating the stay granted by the Civil Judge and TA-1429/2009 was dismissed by the Tribunal. It may be stated here that both these orders were challenged by the petitioners before the High Court by filing WP (C) 6013/2011 and vide the order dated 19.8.2011, the High Court of Delhi set aside the order of the Tribunal and directed to decide the lis on merits, as the High Court agreed with the contentions raised by the learned counsel for the petitioners therein that the suit was maintainable and the writ petition was not entertained on the ground that disputed questions on facts were involved. Accordingly, both these present TAs were restored and listed before this Tribunal.
4. We have heard the learned counsel for the parties and have gone through the material placed on record.
5. Since in cases of the petitioners, who were engaged on casual basis, the High Court of Delhi did not grant the relief regarding their regularization in the aforesaid writ petition, which was dismissed on 29.1.2004, learned counsel for petitioners submits that he is confining the aforesaid TAs to the limited question of terminating the services of the petitioners on the basis of forged and fake appointment letters and the challenge is being made qua this aspect only. As this question was not decided by the High Court in the aforesaid writ petition, the parties were relegated to alternative remedy as the questions on facts were involved, which can only be decided after leading the evidence by the parties.
6. Learned counsel for petitioners argued that there is nothing on record to suggest that the petitioners were given employment on the basis of fake and forged appointment letters. Further, even the fact finding inquiry held by the respondents did not conclusively proved that appointment letters issued to the petitioners are forged. In any case, no such reliance can be placed to this fact finding inquiry in which the petitioners are not associated with and further that the services of the petitioners could have been terminated after holding an inquiry and giving notice to the petitioners in which they should have been associated.
7. On the contrary, learned counsel for respondents has placed reliance on the inquiry report and it was argued that when it came to the notice of the municipal authorities that a large number of persons were working in various schools in different zones on the basis of bogus, forged and fabricated documents and under the Delhi Municipal Corporation Act, it was the Commissioner, MCD who was the competent authority to effect appointment of class IV employees, a decision was taken to appoint a high powered committee to review the cases of all persons engaged as daily-wagers specially between the years 1995 to 1997. Accordingly a screening committee was constituted vide order dated 10.7.1997. The screening committee scrutinized the cases of persons engaged in the Education Department after 1996 and it transpired that 105 letters of appointment were forged and fabricated and in 64 cases appointments were effected pursuant to letters of appointment issued by the person not competent to do so. Thus, in September 2000 letters of disengagement were issued to these 105+64 daily-wage employees.
8. Regarding re-engagement of some persons out of the list of 64 persons, who were disengaged, as their letters of appointment were issued by a person not authorized to do so, it was argued that the labour union of Class IV employees took up their cause with the management. Since the letters were not forged and the only issue was regarding the competency of the person who issued the letters, settlement was arrived at that all those who agree not to claim back wages and withdraw court cases would be re-engaged. Thus, according to the respondents, on the face of such material, which has come on record, it was not necessary to hold an inquiry, as the petitioners were admittedly engaged on daily-wage basis.
9. Learned counsel for respondents has also placed reliance on the following decisions of the Apex Court:
R Vishwanatha Pillai v. State of Kerala & others, 2004 (2) SLJ Vol II page 1; Ram Pretti Yadav v. UP Board of High School & Intermediate Education & others, (2003) 8 SCC 311; and Union of India v. M.S. Bhaskaran, 1995 (Suppl) 4 SCC 100
10. Relying on the aforesaid judgments, learned counsel contended that it was not necessary to hold inquiry and where the appointment has been obtained on the basis of forged and fabricated documents, services can be terminated and their appointments are void abinitio.
11. We have given due consideration to the submissions made by the parties and perused the material placed on record.
12. We do not dispute with the general proposition of law and the main argument advanced by the learned counsel for the respondents that the services of the petitioners, who are daily wagers, can be terminated without holing the inquiry. However, keeping in view the peculiar facts and circumstances of these cases that the petitioners are still working on daily wage basis with the MCD and the fact that the petitioners were relegated by the High Court to avail alternate remedy, as question of termination of their services on account of forged documents cannot be decided in a writ petition, which requires leading of the evidence and determination of issue thereafter, we are of the considered view that the present TAs cannot be disposed of solely on the ground that petitioners being the daily wagers, their services can be dispensed with without holding an inquiry. Having come to the aforesaid conclusion, the further question, which requires our reconsideration, is whether in these proceedings the present TAs can be disposed of on the basis of material placed on record or the petitioners should be relegated to the alternative remedy to raise their grievances before the appropriate labour court where the issue of termination of service of the petitioners on the basis of fake and forged appointment letters can be decided after taking into consideration the evidence of both the parties. According to us, in order to do justice between the parties, it will be appropriate if the petitioners are relegated to the labour court to re-agitate the grievance regarding termination of their services on the basis of forged and fabricated appointment letters. Even the learned counsel for the petitioners, under instructions from the petitioners, who were present in the Court, agrees that the petitioners have no objection if the present paper books are transferred to the labour court to decide the issue regarding termination of services giving liberty to the parties to lead the evidence.
13. In view of what has been stated above, both the TAs are disposed of with a direction to the petitioners to raise the disputes under the Industrial Disputes Act 1947 and file statement of claims before the labour court, as was done by some of the employees, who are similarly situated, namely, Mr. Ramesh Kumar, Mr. Sanjeev Kumar, Mr. Sanjay Kumar and Ms. Pushpa Rani. In case such claims are raised by the petitioners within a period of one month from the date of receipt of a copy of this order, the labour court may deal with such petitions in accordance with law. However, the respondents are directed to maintain status quo, qua the petitioners, for a period of two months from today or till the appropriate order is passed by the labour court on the claim petitions, whichever is earlier. No costs.
14. Both the TAs stand disposed of in the aforestated terms.
Let a copy of this order be placed in each file.
( Mrs. Manjulika Gautam ) ( M L Chauhan ) Member (A) Member (J) /sunil/