Delhi District Court
Sh. Vijay vs M/S Municipal Corporation Of Delhi on 23 March, 2011
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IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 229/07
Sh. Vijay
S/o Sh. Ram Singh
C/o Sh. Rakesh Kumar,
Chamber No. Y79, Civil Side
Tis Hazari
Delhi. ...... Workman
VERSUS
M/s Municipal Corporation of Delhi
Through its Commissioner
Town Hall
Chandni Chowk
Delhi. ...... Management
Date of Institution : 14.12.07
Judgment reserved : 09.03.11
Date of decision : 23.03.11
A W A R D
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F24(1686)/06/Lab./49954999 dated 6.12.07 referred the dispute for adjudication between the Management Municipal Corporation of ID No. 229/07 1/18 2 Delhi and its workman Sh. Vijay in the following terms of reference:
"Whether services of Sh. Vijay S/o Sh. Ram Singh have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. As per claim, the workman had been working with the management as School Attendant vide office order dated 21.09.98. He was directed to report at MCD Primary School, Hassan Pur, Delhi by the concerned officials at Head quarters. Thereafter he worked continuously with the management without any break on the last drawn wages of Rs. 2400/ per month. But ultimately his services were abruptly terminated by the management vide order dated 29.08.2000. He was disengaged by the concerned official w.e.f 6.09.2000. He was not paid any wages for the period 10.06.99 to 05.09.2000 by the management despite the fact that he continuously worked in this period. He duly completed 240 days of working in every year of his employment with the management. It is further stated that before his appointment due scrutiny and screening of his candidature was made by the management as per departmental rules and regulations. After he reported at this school, his joining report was sent back to the hdqrs/zonal office and after due verification and confirmation of his appointment the finance and account department of the management started releasing his salary month wise and ID No. 229/07 2/18 3 the same was paid to him through the Headmaster of the school where he was posted for working. After proper verification by the management, started releasing his wages accordingly after due sanction, budget allocation and verification and confirmation by the accounts department. It is further stated that thereafter on 29.08.2000, the claimant received an office order by which his services were abruptly terminated. Upon enquiries the management tol him that his services were terminated along with other persons since his appointment was bogus. Till then the claimant had completed more than 240 days in a year preceding from the date of his illegal termination. It is further stated that after his illegal termination many fresh hands were engaged from September, 2000 onwards as School Attendant being regular/permanent is still continuing. Even many of his juniors are still working with the management. It is further stated that most of the aggrieved person filed civil Writ petitions. Similarly situated class IV employees whose services were terminated along with the claimant were given back their jobs by the management and their rejoined the services of the management and are still working. It is further stated that the claimant was less than 28 years of age at the time of initial appointment and as such, possesses the requisite qualifications as per recruitment rules and eligibility criteria applicable on the management. It is further stated that the appointment of the claimant was proper, legal and valid and not bogus in any manner therefore termination of his service is illegal, unjust and viodabinitio on following grounds :
(1)that the termination of his service was without assigning any valid ID No. 229/07 3/18 4 reason.
(2)that the order of termination was given illegally and non employment was forced on him.
(3)that the job against which he was working is of a regular and permanent nature and that the post was duly sanctioned and is still continuing.
(4)that he is innocent and has not committed any misconduct during his service tenure with the management. No memo or charge sheet was ever been served upon him. He was never afforded any opportunity of being heard.
(5)that at the time of termination of his service, no notice was given and no service compensation has been either offered or paid to him. (6)that his name was struck off from the rolls of the management. (7)that at the time of termination of his service, no seniority list has been displayed by the management.
(8)that the management engaged fresh hands at his place after the illegal termination of his service.
(9)that the termination of service of the claimant was in violation of section 25D,F,G, H,N,T and U. It is further stated that the claimant is unemployed from the date of his illegal termination of service by the management. Claimant has also sent a legal demand notice in writing to the management through his counsel and the same was duly received by the management. But no reply was sent and ID No. 229/07 4/18 5 no corrective action was taken in this regard.
3. Notice of claim was issued to management. AR for management appeared and filed WS wherein it is stated that claimant was not engaged as daily wager School Attendant by the management and in fact he obtained the engagement on the basis of forged engagement letter which was absolutely fake and contains the fake signatures of AEO Head Quarter. On the basis of office order dated 21.09.98 produced by the workman, the claimant fraudulently worked from 3.10.98 to 6.09.2000. It is further stated that when it came to the knowledge of the authorities that the claimant in connivance with some scrupulous persons has obtained the forged engagement letter, his engagement alongwith some other defaulting daily wagers was concealed by the order dated 7.08.2000 passed by the competent authority. Hence the claim is not maintainable and is liable to be dismissed. It is further stated that the screening committee was constituted to conduct and accordingly an enquiry was conducted by the committee and after investigating into the matter, the Screening Committee found that in 105 cases, the signatures of the competent authority on the engagement letters were forged one and were not of the concern DEO/AEO. The claimant had obtained the engagement on daily wages on the basis of forged documents with active connivance of one Sh. Rajdin and one Sh. Praveen Dubey. He further stated that the engagement of the claimant is void abinitio and as such there is no relationship of employer and employee between the management and the claimant. Since the engagement on daily wages of the claimant was found as ID No. 229/07 5/18 6 forged and fabricated one as such the claimant was disengaged vide office order dated 29.08.2000 after obtaining the orders of the competent authority dated 7.08.2000. It is further stated that the claimant has worked with the management on the basis of forged and fabricated appointment letter, as such the appointment of the claimant is abinitiovoid as such there is no legally established relationship of an employee and employer between the claimant and the management. It is submitted that the present claim suffers from latches. It is submitted that the claimant has alleged illegal termination on 6.09.2000 whereas the present claim has been filed in the year 2008 i.e after the lapse of 8 years as such also the claimant is not entitled for any relief.
In reply on merits, it is stated that the claimant was engaged by the management. In fact the claimant joined the employment of the management on daily wager on the basis of forged and fabricated appointment letter dated 21.09.98. It is further submitted that the claimant worked on the basis of said forged and fabricated engagement letter. It is further stated that after being terminated by the management the claimant must have secured the gainful employment elsewhere. Rest of the contents are denied.
3. Perusal of file shows that workman was given opportunity to file Rejoinder. However after affording several opportunities, workman did not file Replication. Hence, opportunity to file Replication was later on closed. ID No. 229/07 6/18
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4. On the strength of the pleadings of the parties, following issues were framed on 25.03.09:
1. Whether workman obtained employment on the basis of forged and fabricated documents?
2. As per terms of reference.
5. Parties led their evidence.
On behalf of workman, Workman Sh. Vijay examined himself. On behalf of management, Sh Krishna Sharma, Dy. Education Officer, examined as MW 1.
6. WW 1 in evidence by way of affidavit supported the averments made in the claim and exhibited documents as Ex. WW 1/1 to 8.
In cross examination of WW 1, he stated that he came to know about the vacancy through notice board of the management at Kashmere Gate. He thereafter filed an application for the said post with the management. He further stated that he had not placed on record the copy of the application. He stated voluntarily that he filed the application at Headquarter, Kashmere Gate. He thereafter received the letter for interview. He further stated that he did not remember the name of the committee conducted the interview. He further stated that he could not tell as to how many candidates were selected after the said interview. He further stated that he approached AEO, Najafgarh zone after receiving the appointment letter. He admitted that AEO, Najafgarh zone directed him to join at Hasanpur, MCD School. His ID No. 229/07 7/18 8 appointment letter was issued to him on 21.09.98. He admitted tht he worked as daily wager school attendant at Hassan Pur, MCD school w.e.f 3.10.98 to 30.06.98. He stated voluntarily that he worked till 5.09.2000. He further admitted that he had knowledge that a committee was formed to look into forged appointment with the management. He further stated that he was not called before the committee. He further stated that he knew that his name appeared in the list of the persons, who obtained forged appointment. Later on he denied the same. He further stated that he did not know that persons who were behind forged appointment, an FIR was registered against them. He suggested it wrong that he had not completed 240 days in a year with the management.
7. MW 1 Sh. Krishna Sharma in examination in chief supported the averments mentioned in the WS.
In cross examination, he stated that he was presently employed on the post of DEO since July, 2008. He further stated that he was a School Inspector in Najafgarh Zone during the year 19982000. He further stated that firstly the permission is given from the office and thereafter the person reports to the concerned Head Master. Thereafter the report is sent to Zonal office which allocates the sanction of budget for the salary of that person. Thereafter salary is released and to be paid through the zonal office to the concerned employee. The claimant was being paid his monthly salary as per the prevailing rate of the minimum wages. He further stated that as per record, the claimant started working w.e.f 3.10.98 and kept on working till ID No. 229/07 8/18 9 6.09.2000. Thereafter his services were terminated by the management since his first appointment letter was forged. He further stated that a screening committee was constituted to verify the genuineness of appointment letter. He admitted that no FIR was lodged against the claimant with regard to the allegations of forgery and fabrication of the appointment letter. He stated voluntarily that a general FIR was lodged in this regard in the name of mastermind Sh. Rajdin and Praveen Dubey. He stated that screening committee searched out 105 persons who secured forged and fabricated appointments. He further stated that he do not know whether claimant was issued Memo, show cause notice or charge sheet by the screening committee or not or that he was given any opportunity of being heard in compliance of principles of natural justice or not. He admitted that no complaint of any kind as well as with regard to allegations of his appointment being forged and fabricated was ever lodged against the claimant without the management. He admitted that firstly the Head Quarter engages the school attendant on daily wager basis, thereafter, his services are confirmed and regularised as per their policy in the regular pay scale on vacant sanctioned post. He further stated that every school of Education Deptt. of MCD has three regular sanctioned post i.e chowkidar, school attendant and safai Karamchari. The claimant has been working on regular sanctioned post at Primary school of MCD Education Department, Hassan Pur. He suggested it wrong that the appointment of the claimant is proper, legal and valid.
9. Final arguments heard.
ID No. 229/07 9/18
10 AR for workman stated that the workman had been working with the management since 21.09.98 as School Attendant. He worked continuously with the management without any break when he was directed to report at MCD primary School, Hassan Pur, Delhi. But ultimately his services were abruptly terminated by the management vide order dated 29.08.2000. He was disengaged by the concerned official w.e.f 6.09.2000. He was not paid any wages for the period 10.06.99 to 05.09.2000 by the management despite the fact that he continuously worked in this period. He further stated that termination of the workman is illegal as the termination of his service was without assigning any valid reason and the said order of termination was forced on him. He further stated that before terminating the workman No memo or charge sheet was ever been served upon him. Even he was never afforded any opportunity of being heard. He further stated that no notice was given and no service compensation has been either offered or paid to him.
On the other hand, AR for management stated that the claimant was not engaged as daily wager School Attendant by the management and in fact he obtained the engagement on the basis of forged engagement letter which was absolutely fake and contains the fake signatures of AEO Head Quarter. He further stated that the screening committee was constituted to conduct and accordingly an enquiry was conducted by the committee and after investigating into the matter, the Screening Committee found that in 105 cases, the signatures of the competent authority on the engagement letters were forged one and were not of the concern DEO/AEO. The claimant had ID No. 229/07 10/18 11 obtained the engagement on daily wages on the basis of forged documents with active connivance of one Sh. Rajdin and one Sh. Praveen Dubey. He further stated that the engagement of the claimant is void abinitio and as such there is no relationship of employer and employee between the management and the claimant. Since the engagement on daily wages of the claimant was found as forged and fabricated one as such the claimant was disengaged vide office order after obtaining the orders of the competent authority. He further stated that the claimant was alleged illegal termination on 6.09.2000 whereas the present claim has been filed in the year 2008 i.e after the lapse of 8 years.
10. I have seen the file, documentary evidence and my impression is that the reference is decided in negative i.e against the workman on following grounds :
(i) The first and foremost ground attacked by AR for management is that the date of termination is w.e.f 6.09.2000. The present statement of claim has been filed in the year 2008. So far as the dispute filed by the workman is concerned, limitation period of one year from the date of retrenchment/dismissal is prescribed. However, no limitation has been prescribed in the case of reference. Hence, the reference made by the Delhi Govt. does not suffer from latches or delay.
(ii) Government/Official appointment
ID No. 229/07 11/18
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(a) For any appointment in the Government Department there are
rules and regulations of the appointment. According to that rules, appointment can be made. Similarly the appointment is to be made to vacancy or post which is duly sanctioned by the competent authority. Once these conditions are fulfilled there is then procedure of advertisement, calling of applications, selections from the selection body and then formal appointment as approved by the competent authority.
(b) None of the procedure has been adopted in case of the workman. The workman could not show or prove that there was a sanctioned post, advertisement and there was a selection process and appointment by the Corporation. Claimant has failed to prove any document in nature of appointment letter, wages slip, PF contribution, ESI Contribution etc. which may show that he was employed by management.
(c) There is no reference regarding advertisement, calling applications and selection. If the workman is ordered to be reinstated or regularised, then on the face of it the illegality committed in the appointment would be justified which cannot be done by the court.
In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and ors, 2006 (2) SCALE 115, it is held that :
"A regular appointment to a post under the State or ID No. 229/07 12/18 13 Union cannot be made without issuing advertisement."
In A. Umarani Vs. Registrar, Cooperative Societies and ors., MANU/SC/0571/2004 it is held that :
"reinstatement and regularization cannot be mode of recruitment by any State and no regularization can be made where the services of an employee is ad hoc in nature."
In State of U.P Vs. Niraj Awasthi and ors, 2006 (1) SCC 667, it was held by the lordship of Supreme Court that :
"there was no power in the State under Article 162 of the Constitution of India to make appointments and even if there was any such power, no appointment could be made in contravention of statutory rules."
(d) Irregular appointment is a back door entry, which is prohibited by the Constitution. The Supreme Court of India in Secretary State of Karnataka Vs. Uma Devi 2006(4) SCC 7 has clearly stated that :
"Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the ID No. 229/07 13/18 14 same would come to an end when it is discontinued. Similarly, a temporary employee could no claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wages worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules."
The same position was reiterated in Accounts Officer (A&I)Ors. Vs. K.V. Ramanna 2007 LLR 338, where their Lordships of Supreme Court following Uma Devi case (supra) held that:
"Even if the contract labourers or casual workers or ad hoc employees have worked for a long period they cannot be regularized dehors the rules for selection.
(iii) Irregular appointment The superior courts are against irregular method of appointment done in the public services i.e Services in govt. or semi government organisation.
(a) In Krishan Yadav and anr. Vs. State of Haryana & ors.
( 1994) 4 SCC 165, it was held that where :
ID No. 229/07 14/18
15 "the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors. Further......
the proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay."
(b) In Union of India & ors. Vs. O. Chakradhar (2002) 3 SCC 146, it was held that :
"the illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out the right from the wrong or vice versa."
(c) In Ashwani Kumar & ors. Vs. State of Bihar & ors., 1996 Supp. (10) SCR 120, it was held by their lordship of Supreme Court that :
"the confirmation of regularization can be done only in case of available vacancy which is also sanctioned."
(d) Following this Delhi High Court in Writ Petition bearing no. 11906/09 titled as Gauri Jha & ors. Vs. Hardayal Municipal Public Library & ors. and writ petition no. 11907 titled as Deepak Sharma & Ors. Vs. Hardayal Municipal Public Library & ors. challenging the order dated 11.09.09. Vide judgment dated 25.09.09 held that :
"the whole section of process is bad and the order of termination ID No. 229/07 15/18 16 by the management does not violate any principle of natural justice."
(e) In R.N Nanjundappa Vs. T.Thimmiah, 1972 AIR (SC) 1767 :
1972 (1) SCC 409 : 1972 SLR 94 : 1972 LIC 618 : 1972 (1) LLJ 565 : 1972 (2) SCR 799 wherein it was held by the lordship of Supreme Court that :
"if the appointment itself is in infraction of the rules or if it is violation of the provisions of the Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root of the appointment. Accordingly, where procedure is not followed, regularization cannot be made." (Paras 26,27,28)
(f) In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and ors, 2006 (2) SCALE 115, it is held that :
"A regular appointment to a post under the State or Union cannot be made without issuing advertisement."
(iv) Fake appointment AR for management has attacked the appointment of workman ID No. 229/07 16/18 17 as fake appointment. It is stated by AR for management that the appointment of the workman was the fake appointment in the MCD. It is further stated by AR for management that on the basis of fake appointment letter, the workman joined at Nagar Nigam Primary School, Palam Enclave Part II, New Delhi. An enquiry was conducted by the screening committee and after investigation selection screening committee found that in 105 cases signatures of the competent authority on the engagement letters were forged one and not of the concerned DEO/AEO. In the enquiry, it was found that the workman is one of those 105 persons in which engagement was gained on the basis of forge and fabricated engagements. The appointment on the basis of forge and fabricated appointment letter is more serious than the arbitrary and irregular appointment.
In Dulari Devi Vs. Municipal Corporation of Delhi, W.P (C) No. 763 of 2008, wherein lordship of our own High Court has held that :
"Under Delhi Municipal Corporation Act, 1957, Section 95 (2) where there is termination of services and petitioners never employed in MCD prior to their posting at Leprosy Home, Shahdara and each of them given separate show cause notice and they were unable to show that they were ever appointed in MCD, however, managed to obtain orders posting them at Leprosy home, on the basis that they were already employed in MCD, when in fact they were not. MCD fully justified in not permitting the petitioners to continue in services at leprosy Home beyond the period for which they were engaged and question of compliance of section 95 (2) of the DMC Act did not aside."ID No. 229/07 17/18
18 Accordingly, it is held that the question of termination does not arise since the appointment was based on forged and fabricated documents. Hence, workman is not entitled for any relief. Award is passed in negative.
11. Copies of award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.
Announced in the Open Court (DAYA PRAKASH)
rd
on 23 March, 2011 Additional District & Session Judge
Presiding Officer labour Court XVI
Karkardooma Courts : Delhi.
ID No. 229/07 18/18