Central Administrative Tribunal - Delhi
Krishan Kumar vs Municipal Corporation Of Delhi, Govt. ... on 3 November, 2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.3079/2010
Tuesday, this the 3rd day of November 2015
Hon'ble Mr. A.K. Bhardwaj, Member (J)
Krishan Kumar
Group 'C', Aged 37 years
s/o Mr. Chet Ram
r/o 310, Masjit Moth
New Delhi-49
..Applicant
(Ms. Neelam Tiwary and Mr. Sachin Kumar, Advocates for
Mr. Rajiv Aggarwal, Advocate)
Versus
Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Delhi-6
..Respondent
(Mr. Praveen Swarup, Advocate and Mr. Amit Sinha, Advocate for
Mr. R N Singh, Advocate)
O R D E R (ORAL)
Initially the applicant filed O.A. No.1491/2009 before this Tribunal seeking his regularization from a date different from 02.06.2005, i.e., the date from which the respondent had already regularized his services. The said Original Application was disposed of with direction to the respondent to dispose of his representation as expeditiously as possible preferably within a period of four months from the date of receipt of certified copy. The Order dated 02.06.2005 passed by the Tribunal reads thus:-
"The applicant has indeed been regularized as would be made out from Annexure A-1 dated 02.06.2005 with effect from the said date. It is the case of the applicant that person junior to him, namely, Mr. Jyoti, who was appointed on same terms and conditions, has been regularized from an earlier date. His prayer is, thus, for anti- dating his regularization that may be prior to the date of regularization of Mr. Jyoti. For the aforesaid precise relief, applicant 2 made representation Annexure A-11 dated 31.05.2006 followed by reminder dated 18.12.2007 (Annexure A-12), and the Tribunal is given to understand that no decision has yet been taken thereon.
2. Without going into the merits of this case, at this stage, we direct the respondent to deal with the representations of the applicant, as mentioned above, and pass orders thereon in accordance with law as expeditiously as possible and preferably within a period of two months from the date of receipt of certified copy of this order.
3. In view of the above directions, present Original Application stands disposed of."
2. In implementation of the aforementioned Order, the respondent passed the order No.04.12.2009 (page 103 of the paper book) taking the view that Mr. Jyoti s/o Mr. Panchu Ram was engaged as daily wager on 09.08.1991 while the applicant herein was so engaged only on 01.04.1992. Again the applicant approached the Tribunal by way of Original Application No.3755/2009, which was decided in terms of the Order dated 05.01.2010 with the view that since the applicant had been initially engaged as daily wager on 26.02.1991, i.e., ahead of Mr. Jyoti, the order of respondent in rejecting his claim for antedating his regularization w.e.f. 01.04.1999 was faulty. Paragraphs 2 and 3 of the Order dated 05.01.2010 (pages 105 to 107 of the paper book) read thus:-
"2. The Learned Counsel submits that the applicant has since been regularized but is seeking antedating of the date of regularization. It is pointed out that such decision of the respondents is based on the correct information because as per their own documents copies annexed at Annexures A-8 and A-9 and A-10, it would be clear that the initial date of appointment of applicant on daily wages is 26.2.1991. Since the applicant was engaged before the date of engagement of Mr. Jyoti on daily wages the very basis on which his claim for regularization by antedating the same effective 01.04.1999 has been rejected by impugned order is faulty and the respondents need to consider the applicant's case properly as per the directions of the Tribunal in the earlier OA on the basis of the correct facts.3
3. In view of the above submissions, the matter is disposed of by asking the respondents to reconsider the case of the applicant in terms of the directions of the Tribunal in OA No.1491/2009 after reference to the original records in their possession particularly with regard to the facts mentioned in Annexure A-8, A-9 and A-10 to confirm the date of engagement of the applicant on daily wages and thereafter take a decision on his prayer by passing appropriate orders within a period of two months from the date of receipt of a certified copy of this order. They shall also give opportunity of hearing to Mr. Jyoti before passing the above orders. The OA is disposed of as above. No costs."
3. To comply with the Order, the Municipal Corporation of Delhi (MCD) passed office order No.797DA-III/AC/CSE/HQs/2012 dated 26.08.2010 (pages 108 to 110 of the paper book) taking the view that the appointment of the applicant w.e.f. 26.02.1991 was as substitute Safai Karamchari and he was appointed as daily wager only w.e.f. 01.04.1992, i.e., after the date of such appointment of Mr. Jyoti, who was appointed as daily wager w.e.f. 09.08.1991. Having so recorded the facts, respondent viewed that there was no parity between the applicant herein and Mr. Jyoti. The office order reads thus:-
"No.797DA-III/AC/CSE/HQs/2012 Dated: 26.08.2010 Office Order In the light of the CAT order dated 05.10.2010 passed in the case titled as "Krishan Kumar Vs. K.S. Mehara in OA No.3755/2009, the claim for regularization of Sh. Krishan Kumar w.e.f. 01.04.1999 on the analogy of Sh. Jyoti S/o Sh. Panchu Ram, Safai Karamchari has been examined and found that Sh. Krishan Kr. Was engaged as substitute Safai Karamcharies w.e.f. 26.02.91 and converted to Daily Wager w.e.f. 01.04.92 and as per approved policy of MCD after converting Daily Wager along with other substitute other substitute Safai Karamchari of the period 01.04.90 to 31.03.1992 were regularized w.e.f. 07.06.2005 within immediate effect. As far as Sh. Jyoti is concerned, he was engaged as D/W S.K.s w.e.f. 09.08.1991 and was regularized w.e.f. 01.01.1999. Thus there was no parity between Sh. Krishan Kr & Sh. Jyoti. In the matter, Sh. Krishan Kr. was previously informed vide this office order No.4754/AC/DEMS/ HQ dated 04.12.2009 that his claim of the analogy of Jyoti cannot be acceded to. However, again on reconsideration of the case it reveals 4 that the decision communicated to Sh. Krishan Kumar on 09.12.2009 was as per the approved policy of MCD and still hold good.
In these circumstances, it is to be informed that your claim on the analogy of Sh. Jyoti S/o Sh. Panchu Ram, Safai Karamchari cannot be acceded to. However, if any change in the existing policy of MCD is approved, your case will also be concerned along with other fellow employees.
This issued with the approval of competent authority."
4. After the said office order, the applicant filed Original Application No.3079/2010, which was disposed of in terms of the Order dated 04.04.2011 with direction to the respondent to grant the benefit of regularization to the applicant from 01.04.1999. Paragraphs 3 to 5 of the Order read thus:-
"3. Learned counsel for the respondents draws my attention to Annexure R-1 filed to the counter-reply which pertains to an Office order dated 14.09.2004 in which the status of the applicant along with ten others was converted from 'substitute' SK to daily wage SK w.e.f. 01.04.1992. The other documents filed by the respondents flow from this Office Order. Admittedly, this is an order of September, 2004 giving a back dated status from 01.04.1992. Neither from the counter-reply nor from the impugned order does one find the basis how the applicant was treated as a 'substitute' SK until passing of this order. On the other hand, it is clear from the documents of the respondent organization filed by the applicant that his status all along had been described as daily rated SK. Therefore, the distinction which is being made between him and Sh. Jyoti is not borne out from the documents. Both were daily rated SKs and were entitled to be regularized from 01.04.1999 in terms of the policy of the respondent organization. The discriminatory treatment which is sought to be justified by the respondents on the ground that the status of the applicant and Sh. Jyoti were different at the time of their initial engagement is without any justifiable basis. The Office Order dated of 14.09.2004 does not say how the applicant was treated as a substitute SK when the documents now filed by the applicant prove otherwise.
4. In the circumstances, the claim of the applicant that he was engaged as a daily rated SK on 26.02.1991 and his status was no different from Sh. Jyoti who was engaged on 09.08.l991 in the same capacity is established on the basis overwhelming evidence filed by the applicant. Therefore, it is held that the direction dated 5 05.01.2010 passed in OA-3755/2009 has not been properly complied with. Accordingly, the Office Order dated 26.08.2010 is set aside.
5. In view of the foregoing discussions, the O.A. is allowed. The respondent authority is directed to grant the benefit of regularization to the applicant from 01.04.1999, the date Sh. Jyoti was given the benefit of regularization. No costs."
5. To seek review of the Order passed in Original Application No.3079/2010, the respondent filed Application No.182/2012, which was rejected in terms of the Order dated 17.09.2012. The Order was challenged by the respondent in Writ Petition (C) No.1455/2013 before the Hon'ble High Court of Delhi, which came to be dismissed in terms of the Order dated 05.03.2013. The Order passed by the Hon'ble High Court reads thus:-
"CM No.2755/2013 (Exemption) and CM No.2757/2013 (Delay) Allowed.CM No.2756/2013
Dismissed.WP(C) No.1455/2013
1. Vide impugned order dated April 04, 2011, relief has been granted by the Tribunal to the respondent Krishan Kumar, who successfully established that he was engaged as a daily wage safai karamchari on February 26, 1991 and one Jyoti was engaged as a daily wage safai karamchari subsequent to him on August 09, 1991 and that under a policy to regularize daily wage safai karamcharis, Jyoti was regularized prior to him. The Tribunal has accepted his claim that the policy in question entitled both i.e. the respondent and Jyoti to be regularized with effect from April 01, 1999. The direction given is to regularize respondent with effect from April 01, 1999 i.e. the date wherefrom Jyoti was given the benefit.
2. While responding to the Original Application filed by the respondent, in the preliminary submissions, the petitioner pleaded:-
The applicant has time and again been informed that he was engaged as Substitute Safai Karamchari on 26 February 1991 and later on was converted to Daily Wage Safai Karamchari w.e.f. 1 April 1992 whereas Jyoti was engaged as Daily Wager Safai Karamchari w.e.f. 9 August 1991 i.e. about 8 months before the conversion of the applicant from 6 substitute Safai Karamchari to Daily Wage Safai Karamchari.
3. We have repeatedly asked learned counsel for the petitioner as to what would be the difference between a 'Substitute Safai Karamchari' and a 'Daily Wage Safai Karamchari', for the reason even a Substitute Safai Karamchari receives wages for the number of days worked.
Learned counsel has no answer.
4. Thus, the difference between a 'Substitute Safai Karamchari' and a 'Daily Wage Safai Karamchari' is the same which we find between twiddle-dum and twiddle-dee.
5. The challenge is also to the order dated September 17, 2012 whereunder the Tribunal refused to review its order dated April 04, 2011.
6. In respect of the order dated September 17, 2012, learned counsel states that certain material facts later on surfaced. Counsel states that the facts bring out that the respondent managed to interpolate the Muster Rolls pertaining to one Smt.Krishna wife of Shri Dhare. He managed somehow or the other to change Smt.Krishna to Krishan Kumar and the name 'Dhare' to 'Chetram', and for which learned counsel seeks to rely upon photocopies of some Muster Rolls.
7. But we have asked learned counsel for the petitioner that on what documentary record the petitioner pleaded facts as noted above in the preliminary submissions of the reply filed to the Original Application filed by the respondent. The reason for the query is that the said reply could not be based on the Muster Rolls stated to have been interpolated and now relied upon by the petitioner. It is obvious that some other record was looked into by the petitioner which clearly recorded that the respondent was engaged as a Daily Wage Substitute Safai Karamchari on February 26, 1991. Learned counsel for the petitioner is unable to give any explanation as to how and with reference to which record, facts were pleaded, as noted above, in the preliminary submissions of the reply filed.
8. In the absence of any satisfactory reply and the issue being one of fact, as a Writ Court we decline to adjudicate a disputed question of fact and thus dismiss the writ petition in limine.
9. No costs.
CM No.2754/2013 Since the writ petition stands disposed of, instant application seeking ad-interim relief till disposal of the writ petition stands disposed of as infructuous."
7
6. To put the facts of the case straight, I note that when in terms of the order dated 07.06.2011 he was placed under suspension, the applicant filed Original Application No.4278/2011 before this Tribunal, which was disposed of in terms of Order dated 01.12.2011 with direction to the respondent to decide the representation of the applicant. In the wake, the office order dated 10.02.2012 (page 121 of the paper book) was passed rejecting the representation. Finally, the respondent approached the Apex Court by way of Civil Appeal No.1649/2015. The Appeal was disposed of in terms of Order dated 06.02.2015, relevant excerpt of which reads thus:-
"The only question raised and at some length argued before us by learned counsel for the parties relates to the date of engagement of the respondent. It is evident from the rival contentions urged by the learned counsel for the parties that there is a serious dispute as to the actual date of engagement of the respondent apart from allegations of interpolations allegedly made by the respondent with the help of some other official of the Corporation. The fact that the matter is being investigated by the Vigilance Department of the Corporation separately only lends credence to the existence of the dispute. There is at the same time no denying the fact that the issue is being raised for the first time before us. But since the same goes to the root of the matter, we see no reason to shut out the same from consideration. The better course in our view is to remit the matter back to the Central Administrative Tribunal to give an opportunity to both the parties to place their respective versions before it so that the Tribunal after hearing both sides determines the question afresh in accordance with law.
In the result, we allow this appeal set aside the order passed by the High Court as also that passed by the Central Administrative Tribunal and remand the matter back to the Central Administrative Tribunal for a fresh determination in accordance with law. We make it clear that we have expressed no final opinion on the merits of the controversy. No costs."
7. As can be seen from the Order of Hon'ble Supreme Court, in the affidavit filed by the respondent, it had been espoused that the Muster Roll No.58360 and Voucher No.175/SK dated 02.04.1991 had been tampered so 8 as to show the first date of engagement of the respondent to be 26.02.1991 instead of 26.02.1993. In the wake, Mr. Praveen Swarup, learned counsel for respondent produced the Muster Roll as well as photocopy thereof to show that these were the particulars of कृ णा w/o धारे 187 हरदेव पुर न. द. which were fiddled and changed to Krishan Kumar s/o Sh. Chet Ram. On perusal of the original as well as photocopy, I find that one can make out with the naked eyes that at Sl. No.2 of the Muster Roll for the period from 26.02.1991 to 25.03.1991, it is the name of कृ णा w/o धारे which is changed to Krishan Kumar s/o Sh. Chet Ram. The bar after 'ण' is merged with 'क'. The word 'ध' is clearly overwritten and made 'च'. Besides there is also punching in the particulars of कृ णा. Apparently, 26.02.1991 was the date of appointment of कृ णा. To converse w/o in s/o the 'w' is overwritten with 's'. When the respondent could categorically establish that there is forgery and manipulation in the Muster Roll to convert the particulars of कृ णा to that of the applicant, the applicant could not produce any document to establish his appointment w.e.f. 26.02.1991. For easy reference, the scanned copy of the Muster Roll dated 26.02.1991 to 25.03.1991 is reproduced hereinbelow:-
910 11 12
8. The respondent could also produce the Muster Roll for the period 26.02.1993 to 25.03.1993 wherein the date of appointment of the applicant is shown as 26.02.1993. The scanned copy of the Muster Roll is reproduced hereinbelow:-13 14 15 16
9. When the aforementioned is the factual position, I failed to understand that how in affidavit dated 09.03.2011 Mr. T P Sharma, the deponent could admit that the applicant was appointed as substitute Safai Karamchari w.e.f. 26.02.1991. There is no doubt that not the applicant 17 alone but certain other officials of the Corporation were also involved in forging the documents.
10. In the wake, the Original Application is dismissed and a cost of `25,000/- (Rupees Twenty Five Thousand only) is imposed. The Commissioner, South DMC will identify the persons, who have contributed to forgery and will recover the amount of cost from them.
( A.K. Bhardwaj ) Member (J) November 3, 2015 /sunil/