Central Administrative Tribunal - Delhi
Smt. Saroj vs The Commissioner on 24 February, 2010
Central Administrative Tribunal Principal Bench OA No.2699/2009 New Delhi this the 24th day of February, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) 1. Smt. Saroj, W/o Sh. Bachan Singh, R/o RZ-20B/1C, Gali No.4, Main Sagar Pur, New Delhi-110046. 2. Smt. Kunta Devi, S/o Sh. Omvir, R/o D-73, Staff Quarter, Tihar Jail, New Delhi-110064. 3. Smt. Nirmala, W/o Shri Vinod Kumar, R/o H. No.118, Ward NO.2, Mehrauli, New Delhi. 4. Smt. Maya Devi, W/o Sh. Ram Kishan, R/o H. NO. D-1011, Shiv Vihar, J.J. Colony, Village Hastsal, Uttam Nagar, New Delhi-110059. 5. Smt. Sharda Devi, W/o Sh. Lal Bahadur, R/o T-34, Central Jail, Staff Quarters, Tihar Jail, New Delhi-110064. 6. Sh. Satish, S/o Harcharan Lal, C/o Sh. Arun Mishra, R/o D-1025, Shiv Vihar, J.J. Colony, Village Hastsal, Uttam Nagar, New Delhi-110059. 7. Shri Vijendra, S/o Shri Bhuleram, R/o H. No.808, D-Block, Gali No.6, Nathu Colony, Nathupura (Burari), New Delhi-110084. -Applicants (By Advocate Shri Gauri Shanker Sharma) -Versus- The Commissioner, Municipal Corporation of Delhi, Town Hall, Delhi-110006. -Respondent (By Advocate Shri R.K. Jain) O R D E R Honble Mr. Shanker Raju, Member (J):
At the outset, we may quote the observations of the Honble Supreme Court in D.M. Premkumari v. Divisional Commissioner, Mysore Division and others, 2009 (1) SCR 1094:
"The law is merciless", is a most frequently quoted saying. It has led people to mistakenly think that it is separated from feelings of righteousness. We have become used to the understanding that such emotions as indignation, sorrow and compassion should not exist in legal cases, especially not in judiciary. This, in our view, is a mis-understanding. Judiciary has a very strong sense of justice and it works to maintain social justice and fairness. We hasten to add, judiciary does not believe in misplaced sympathy
2. It is also trite that a fake appointment if proved, on cancellation, does not require following of principles of natural justice, as ruled by the Apex Court in Union of India & others v. M. Bhaskaran, 1996 (32) ATC 94 and State of Manipur and others v. Y. Token Singh and others, (2007) 5 SCC 65.
3. Applicants, who are regular substitute safaiwala, are aggrieved by an order passed on 18.5.2007 by the respondent-Commissioner, Municipal Corporation of Delhi (MCD), whereby invoking Section 95 (2) (b) of Delhi Municipal Corporation Act, 1959 as well as Regulation 9 (ii) of the D.M.C. Services (Control and Appeal) Regulations, 1959, pursuant upon registration of criminal case by CBI against the applicants under Section 420/467/468/120B IPC they have been dismissed from service on dispensing with the enquiry as not reasonably practicable. Also assailed is a common order passed in appeal on 30.5.2008 by the Lieutenant Governor, whereby the appeal preferred against the respective orders of dismissal by the applicants have been rejected.
4. Applicants, numbering 7, have been working, as contended, as substitute safaiwala since 1990 in Circle-40-A, Uttam Nagar, West Zone of respondents and were regularized in April 2001 by an order passed by one Shri R.K. Lakra, Sanitation Superintendent, West Zone on the vacant posts in Circle-20, Ashok Nagar. A case FIR No. RC-DUA 0063/2003 was registered at P.S. CBI/ACB/N.Delhi u/s 420/467/468/120B IPC and also u/s 13 (2) readwith Section 13 (i) (d) of Prevention of Corruption Act against Shri R.K. Lakra and Shri Jeet Ram, SG/Beldar. On completion of investigation the case is subjudice before the court of competent jurisdiction.
5. A letter had been written by the CBI to the respondent-MCD, informing that officials of CSE department on resorting to illegal means regularized various casual safai karamchari during the year 2001. It is further alleged that one Mr. R.K. Lakra and Mr. Jeet Ram in connivance with applicants falsely shown them to be working since 1988 in CSE department whereas they were neither on the pay roll of MCD nor worked as casual safai karamchari in any capacity have managed to get them regularized on the basis of false and forged documents, including seniority list. It is also stated in this letter that as per date of their engagement applicants had not even attained the minimum age of 18 years when they were allegedly employed on casual basis. It is stated that most of them are not performing their duties, yet salary is being credited into their account.
6. On the basis of this CBI letter the following decision has been taken by the Commissioner, MCD:
Whereas from the above facts, it is crystal clear that the 7 Safai Karamcharies, named above, have never been in the employment of MCD and they were regularized on the basis of false and forged documents and they were paid salaries without performing duties.
In the facts and circumstances of the case, I observed that the further retention of above name 07 Safai Karamcharies in MCD is not in public interest. It is further observed that since the above said 7 Safai Karamcharies never worked in MCD, in any capacity, as such their regularization in MCD was itself bogus and fabricated, and the evidence on record is sufficient and clear enough for the purpose of taking action against them under Clause 9 (ii) of the Regulations. Considering the sensitiveness of the charge, the public interest and the material available on record, I hereby dispense with the inquiry against the above named persons, as the same is not reasonably practicable in the present state of circumstances.
Keeping in view the above facts, I am of the considered opinion that their continuation in municipal service is not in public interest and warrants their outright dismissal from municipal service in accordance with proviso to Section 95 (2) (b) read with Article 311 of the Constitution of India.
I, Ashok Kumar, Commissioner, Municipal Corporation of Delhi hereby order that Smt. Kanta Devi, Smt. Nirmala, Smt. Saroj, Smt. Sharda Dvi, Smt. Maya Devi, Shri Satish and Shri Vijendra be dismissed from service, which shall ordinarily be a disqualification for future employment.
7. Applicants preferred respective appeals against the order, which were turned down by a common order, without giving any reasons. This has led to the present OA.
8. Learned counsel of applicants states that the appeals have been preferred by the applicants pursuant upon the order of the High Court in LPA No.1064/2007 Saroj & others v. M.C.D. & others, whereby all the appeals have been turned down without application of mind and without recording reasons. It is stated that even without going into the possibility of holding of enquiry at the appellate stage, such a non-consideration is contrary to the decision of the Constitution Bench of the Apex Court in Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398.
9. Learned counsel would also contend that without affording an opportunity and show cause notice and despite the documents produced by the applicants have yet to be proved as forged, and their appointments as such, because criminal case is subjudice, even without the outcome of the criminal case and without holding an enquiry, where such forgery has been established, deprivation of reasonable opportunity is not only in violation of principles of natural justice but also contrary to Article 311 of the Constitution of India. It is stated that once an enquiry has been held against the permanent employees like applicants, i.e.,. R.K. Lakra and Jeet Ram and they were placed under suspension, reinstating these two employees and not dispensing with their services, an invidious discrimination has been meted out to the applicants being identically situated, which cannot be countenanced in the wake of Articles 14 and 16 of the Constitution of India. It is also stated that as a shortcut and to maintain their clean image before media and the public, no justifiable grounds existed to dispense with the enquiry, as the same was very much possible and practicable in the circumstances. Victimization and legal malafide is one of the grounds raised by the learned counsel of applicants.
10. On the other hand, learned counsel of respondents vehemently opposed the contentions and by relying upon the decision of the Apex Court in M. Bhaskaran and Y. Token Singh (supra), it is stated that applicants had not figured in the original seniority list issued by CSE department to have been working have not even attained the minimum age of 18 years, as such their appointments being void ab initio principles of natural justice need not be followed and rightly their services have been dispensed with in public interest, as the enquiry was not found reasonable practicable in the present state of circumstances.
11. We have carefully considered the rival contentions of the parties and perused the material on record.
12. As a Court in judicial review apart from the task entrusted to us to deliver justice we cannot be oblivious of our role as a citizen owing duty to the nation. We by our acts cannot promote corruption, malpractice but at the same time we can also not give premium to a wrong doer. However, the duty casts upon us is to ensure as a mandate that when an order is challenged before us its legality or illegality has to be examined and a finding is to be recorded on it. As a judicial officer and under the activism we cannot adjudicate a dispute and return our finding on sympathy, compassion or good conscience. This we have observed as the issue in question is an intricate issue of a clash between the discretion of the authorities and available right of the employee in consonance with the principles of natural justice, though at the outset we may record that municipal employees are not government employees with a protection under Articles 309 and 311 of the Constitution of India, as ruled by a three-Judge Bench of the Apex Court in UPSC v. Dr. Jamuna Kurup, (2008) 11 SCC 10. Even oblivious of Article 311 of the Constitution of India when services of an employee are dispensed with, this has to be preceded either by following due process of law laid down under rules or regulations or issue of a show cause notice, which would be in consonance with principles of natural justice, which are inflexible and cannot be put to a straightjacket formula, yet the basic component, i.e., audi alterm partem has to be observed as a pre-decisional hearing. Accordingly, on misconduct even when a municipal employees services are dispensed with, he is legally entitled to be afforded a reasonable opportunity of show cause against the action proposed under Section 95 (2) of the D.M.C. Act ibid. However, exceptions are there, which are contained in Section 95 (2) (d) whereby the authority empowered to remove or dismiss MCD employees on recording reasons can dispense with the enquiry or opportunity of showing cause, if it is not found reasonably practicable. As per Section 95 (2) ibid action by the authority is final though subjected to appeal under Section 95 (4) of the Act ibid. DMC Services Regulations under Regulation 6 describes dismissal as a major penalty though the pre-requisite condition precedent is to follow the procedure of enquiry under Regulation 8 of the Rules. However, Regulation-9, a non-obstante clause laying down as per procedure under Regulation 9 (ii) empowers an authority to dismiss an employee of MCD on recording reasons as to following of the procedure prescribed in Regulation as not reasonably practicable to dismiss an employee, without holding a proceeding under Regulation-8.
13. At the outset, we may have accepted the justification of the respondent and their legal stand presented before us, as when the appointment is on forged documents and is fake, the same is nullity in law, requires non-following of principles of natural justice. However, on close scrutiny of the decision in M. Bhaskaran (supra) we find that an enquiry was held to find out whether the documents had been forged and accordingly a finding has been recorded by the Apex Court as dicta.
14. In Y. Token Singh (supra) also the case was of cancellation of appointment whereas in the instant case appointment has been cancelled but a penalty of dismissal has been imposed upon applicants. As such, these decisions would have no application.
15. However, as a juxtaposition we may like to cite the decision of the Apex Court in R. Vishwanatha Pillai v. State of Kerala and others, 2004 SCC (L&S) 350, whereby a person who procured appointment on the basis of false certificate and as to following of principles of natural justice, the following observations have been made:
12. Article 311 provides that a member of a civil service of the Union or the State shall not be dismissed or removed by any authority subordinate to that by which he was appointed. That the employee shall not be dismissed or removed or reduced in rank except after an inquiry, in which he has been informed of the charges against him and a give a reasonable opportunity of being heard in respect of those charges. In exercise of the power conferred by sub-section (1) of Section 3 of the All India Services Act, 1951, the Central Government, in consultation with the Governments of the States concerned, framed the All India Services (Discipline and Appeal) Rules, 1969. These Rules lay down the detailed procedure as to the manner in which the action is required to be taken against a delinquent public servant. Relying upon the Article 311 and provisions of the Rules, it was contended by Shri Ranjit Kumar, learned senior counsel for the appellant, that the service of the appellant could not be terminated without following the procedure laid therein.
13. We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for the Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by the KIRTADS and the Scrutiny Committee constituted under the orders of this Court. Appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts we find that the safeguards provided in Article 311 of the Constitution that the Government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself stands complied with. Instead of departmental inquiry the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) The Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer having intimate knowledge in the verification and issuance of the social status certifies, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put-forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld upto this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority.
14. Rule 6 of the Rules provides the penalties major or minor which can be awarded to the delinquent officer on being found guilty of misconduct alleged against him. Rule 7(1) provides that where a member of the service has committed any act or omission, either before his appointment or subsequently, which renders him liable to any penalty specified in Rule 6, then, the penalty of dismissal, removal or compulsorily retirement shall not be imposed in the case of Central Government employee except by an order of the Central Government{Rule 7(2)}. In the present case, the order has been passed by the Central Government as the appellant was an IPS officer. The act or omission on the part of the appellant pertains to the period prior to his joining the service. There is no non-compliance of Rules 6 or 7 of the Rules.
15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
16. Having regard to the above, what discerns is that in a case where the very basis of forged documents has been established either by a caste committee or by a duly constituted committee then the requirement of holding an enquiry or giving an opportunity is an empty formality. In the instant case it is only on an anonymous complaint to the CBI that a case has been registered against the applicants and a chargesheet has been filed in the court of criminal jurisdiction where the issue is subjudice. It is not only logical but also rationale that it is only the enquiry and investigation by the CBI where the applicants have not been given participation that a case has been registered against them for false/forged documents. Unless the conclusion of the trial in the facts and circumstances that no opportunity has been afforded to the applicants and a finding of guilt holding the forgery as proved and the factum of getting appointment on forged documents, which is a charge, is recorded by the Court, it would be pre-determination of the issue, which the department in the wake of the fact that the criminal court cannot be overridden by a finding recorded on administrative side is not competent to hold even without an enquiry or reasonable opportunity to the applicants that their appointment was on forged documents. Pre-judging the issue cannot be sustained in law. In a three-Judge Bench decision the Apex Court in Vice-Chairman, Kendriya Vidyalaya Sangathan and another v. Girdharilal Yadav, 2005 SCC (L&S) 785 held that:
Holding of a departmental proceeding is the rule. The second proviso to Article 311 (2) of the Constitution of India provides for an exception. Existence of such an exception situation must be shown to exist on the basis of the relevant materials. In an appeal preferred by the delinquent from such an order it was obligation on the part of the disciplinary authority to produce all records to show that there were enough materials before the disciplinary authority to arrive at a positive and categorical finding that in the departmental proceeding the witness were not likely to depose. It was not done. Resultantly, the entire proceeding became vitiated in law.
17. In Indian Raiwlay Constructions Co. Ltd. v. Ajay Kumar, 2003 SCC (L&S) 528 on judicial review of discretionary power of dispensing with the enquiry with non-application of mind, the Apex Court in the context of a Railway case made the following observations:
12. It is fairly well settled that the power to dismiss an employee by dispensing with an enquiry is not be exercised so as to circumvent the prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the Court to substitute its view for that of the disciplinary authority as if the Court is sitting as an appellate authority over the disciplinary authority. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. What the High Court was required to do was to see whether there was any scope for judicial review of the disciplinary authority's order dispensing with enquiry. The focus was required to be on the impracticability or otherwise of holding the enquiry.
13. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. (See State of U.P. and others v. Renusagar Power Co. and others (AIR 1988 SC 1 737). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitraily or capriciously. These several principles can conveniently be grouped in two main categories : (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not. however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
14. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is 'illegality' the second 'irrationality, and the third 'procedural impropriety.' These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (1984 (3) All ER 935), (commonly known as CCSU case). If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See Commissioner of Income- tax v. Mahindra and Mahindra Ltd. (AIR 1984 SC 1182). The effect of several decisions on the question of jurisdiction have been summed up by Grahame Aldous and John Alder in their book "Applications for Judicial Review, Law and Practice" thus : "There is a general presumption against ousting the jurisdiction of the Courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradig, which the Courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government's claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the civil service this is doubtful. Lords Diplock, Seaman and Roskili appeared to agree that there is no general distinction between powers, based upon whether their scarce is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power, in that case national security. May prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney General's prerogative to decide whether to institute legal proceedings on behalf of the public interest." (Also see Padfield v. Minister of Agriculture, Fisheries and Food (LR (1968) AC 997)).
15. The Court will be slow to interfere in such matters relating to adminstrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
16. The famous case commonly known as "the Wednesbury's case" is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction.
17. Before summarizing the substance of the principles laid down therein as shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (KB at p. 229 : All ER p. 682). It reads as follows :
".........It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting 'unreasonably.' Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers the authority.......In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another." Lord Greene also observed (KB p. 230 : All ER p. 683) "........It must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable body can come to. It is not what the Court considers unreasonable........The effect of the legislation is not to set up the Court as an arbiter of the correctness of one view over another."
(Emphasis supplied)
18. Therefore, to arrive at a decision on "reasonableness" the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.
19. The principles of judicial review of administrative action were further summarised in 1985 by Lord Diplock in CCSU case as illegality, proceural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows :
".........Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality,' the second 'irrationality' and the third 'procedural impropriety.' That is not to say that further development on a case-by-case basis may not in course of time and further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community." Lord Diplock explained "irrationality" as follows :
"BY 'irrationality I mean what can by now be succinctly referred to as Wednesbury unreasonableness.' It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
20. In other words, to characterise a decision of the administrator as "Irrational" the Court has to hold, on material, that it is a decision "so outrageous"
as to be in total defiance of logic or moral standards. Adoption of "Proportionality" into administrative law was left for the future.
21. These principles have been noted in aforesaid terms in Union of India and another v. G. Ganayutham (1997 (7) SCC 463). In essence, the test is to see whether there is any infirmity in the decision-making process and not in the decision itself.
22. Neither learned single Judge nor the Division Bench has examined the question as to practicability or otherwise of holding the enquiry in the correct perspective. They have proceeded on the footing as if the order was malafide; even when there was no specific allegation of mala fides and without any specific person against whom mala Jides were alleged being impleaded in the proceedings. Except making a bald statement regarding alleged victimization and mala fides, no specific details were given.
23. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that malafide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (See S. Pratap Singh v. State of Punjab (1964 (4) SCR 733). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegation demands proof of a high order of credibility. As noted by this Court in R. P. Royappa v. State of Tamil Nadu and another (AIR 1974 SC 555), Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration.
18. A discerned reading of the aforesaid clearly establishes that nothing precludes in judicial review to know reasonableness of the reasons recorded by the authority dispensing with the enquiry. Irrationality and malafide are also the factors to be taken into consideration, as ruled by the Apex Court in Southern Railway Officers Association v. Union of India, (2009) 2 SCC (L&S) 552 that while exercising a special procedure for dispensing with the enquiry as not reasonably practicable, reasons recorded must be cogent and sufficient and the satisfaction arrived must be based on objectivity and should not be arbitrary.
19. The Apex Court in Prithpal Singh v. State of Punjab, (2006) 13 SCC 314 and in Tarsem Singh v. State of Ponjab, (2006) 13 SCC 581 had an occasion to consider the vires of an Act whereby the enquiry has been dispensed with, clearly ruled that a constitutional right conferred on a delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely to avoid holding of enquiry.
20. With the above backdrop of cited cases we must now examine the reasoning. In fact, what has been arrived at as satisfaction of holding of the enquiry as not reasonably practicable by the competent authority is based on some letter written by the CBI and on which it has been concluded that the applicants had never worked in MCD and their regularization was done on bogus and fabricated documents. It appears that when CBI had filed a case before the Court the FIR remained as an accusation only and this chargesheet would not be a Bible for proof of guilt of the applicants or their misconduct of getting appointments on forged and faked documents, unless trial court delivers the finding by convicting applicants or this fact could have come to the knowledge of the respondents by their own examination of facts, affording an opportunity to the applicants even resorting to an informal enquiry the same would have suffice to exercise this discretion. However, dispensing with the enquiry when it is not only reasonably practicable but also possible, as the entire material is with the CBI and had been apprised to the MCD, it appears that when the matter has been disclosed in the Press and the Media, as a tactic of face saving and to maintain clean image in the eye of public by resorting to dispensation of enquiry is nothing but a shortcut to dispense with the services of applicants and a clear act of the respondents whereby they have avoided holding of an enquiry when it was very much possible and practicable. Such an extraneous factor under the guise of public interest and sensivity of the charge is a sham but on lifting of the veil and examining the circumstances we are satisfied that the order is punitive and discretion has been exercised non-judiciously. As such, dispensation of enquiry under Section 95 (2) (b) of the Act and Regulation 9 (ii) of the Service Regulations is misuse of the authority, which as a quasi-judicial authority Commissioner especially when it dispenses with the services, without affording an opportunity cannot be sustained in law. The reasons are far from objectivity and even subjective satisfaction has not been arrived at. The reasons are unreasonable and hence the conduct of the respondent is unfair and vitiated by legal malafide.
21. Discrimination when invidious is violative of principles of equality enshrined under Article 14 of the Constitution of India. Mr. Lakra and Mr. Jeet Singh who are like applicants permanent employees of the MCD when are involved, though were placed under suspension along with applicants, were not only reinstated but also have been proceeded against in an enquiry under Regulation 8 of the Regulations of MCD, when enquiry is possible in their cases whereby the backdrop would be of their connivance to facilitate on fake and forged documents the alleged appointment on regular basis of applicants, which would involve common documents and materials, enquiry when possible and practicable in their cases, a contradictory stand in the case of applicants, amounts to an act of approbation and reprobation by the respondent, which as a god administration is antithesis to principle of fairness and offends Article 14 of the Constitution of India. Such a discrimination when is not justifiable by the respondent in their reply, vitiated the action of the respondents.
22. In appeal, as ruled by the Apex Court in Tulsi Ram Patel (supra) it is not the mechanical exercise and power which would result in consideration of appeal but a constitutional right by virtue of a decision of the Apex Court that holding of enquiry at the appellate stage shall also be considered by the appellate authority is a mandate. The Lieutenant Governor while dismissing the appeals no where took into consideration the justification put-forth by the applicants and their defence and a non-speaking order has been passed. We do not find in either MCD Act or Regulations thereof any provision which dispenses with the reasons to be recorded by the appellate authority in support of the order. Such a non-speaking order is not legally sustainable. Even applying the test of a common reasonable prudent man this order cannot be justified in law.
23. Resultantly, for the foregoing reasons, OA is allowed to the extent that impugned orders are set aside. Respondents are directed to forthwith reinstate applicants in service but under deemed suspension. They are at liberty, if so advised, to take up proceedings against applicants, in accordance with law, with a reasonable opportunity to them. In such an event on outcome law shall take its own course. The interregnum shall be decided as per the rules, instructions and law on the subject. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.