Central Administrative Tribunal - Delhi
Jai Bhagwan vs South Delhi Municipal Corporation Of ... on 25 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.2292 of 2015
Orders reserved on : 19.09.2018
Orders pronounced on : 25.09.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Jai Bhagwan, worked as Safai Karamchari in MCD,
Age 44 years,
S/o Sh. Maan Singh,
R/o H.No.153, Village Bhalaswa,
Jahangirpuri Delhi-110033.
....Applicant
(By Advocate : Shri Rambir Chauhan)
VERSUS
1. South Delhi Municipal Corporation,
Through its Commissioner,
Dr. Ambedkar Stadium,
New Delhi.
2. S.D.M.C. Addl. Commissioner,
West Zone New Delhi-110002.
3. Sanitation Superintendent,
C.S.E., West Zone, M.C.D.,
Delhi.
4. Sanitory Inspector,
C.No.40, JJR Khayala,
New Delhi.
.....Respondents
(By Advocate : Shri R.K. Jain)
ORDER
By filing the instant OA, the applicant has sought the following reliefs:-
"The Office Order No.01-V/DC/DEMS/2006-06/3062 dated 8.2.2006 may be set-aside and the applicant be allowed joint his duty as per seniority list and pay all his back wags to the Applicant."2
2. Brief facts of the case as narrated by the applicant are that the applicant joined as Safai Karamchari on being Awazdar (Substitute) under the respondent no.3 on 2.1.1990 since then he had been working till 1.2.1998 on daily wages. 2.1 On 7.4.2003, the applicant received an Office Order dated 5.2.2003 from C.S.E. Department and after receiving the same, the applicant accepted the offer and submitted the acceptance at Sanitary Superintendent and on 8.4.2003, a letter was issued by respondents for medical checkup and the applicant submitted the medical certificate with his joining letter dated 2.5.2003 and on 6.5.2003, a report for joining vide Diary No.428/SS/WZ was submitted and thereafter another office order No.196/SS/WZ, the direction was given to the applicant to join his duty. Thereafter the applicant was not allowed to join his duty.
2.2 When the applicant was not allowed to join his duty, the applicant filed Writ Petition which was transferred to this Tribunal and registered as TA No.281/2009 which was disposed of by this Tribunal vide Order dated 21.7.2010 with the following observations:-
"We find on record that this TA filed by the applicants has sought a direction to the respondents to allow him to join duties and to give regularization. It transpires from the reply filed by the MCD that vide orders passed on 16.6.2003 and 8.2.2006 services of the applicant have been terminated and the appointment was cancelled.
2. Having not been assailed the aforementioned orders before us, which is a subsequent event after filing the CWP, with liberty to the applicant to challenge the aforesaid orders, for which limitation would not come in their way, this TA stands disposed of. No costs."3
Thereafter the applicant filed another OA 3805/2011 and this Tribunal vide Order dated 29.4.2015 allowed the applicant to withdraw the same with liberty to file a fresh OA within a period of one month from said date. Thereafter the applicant has filed the instant OA seeking the relief as quoted above.
3. Pursuant to notice issued to the respondents, they have filed their reply in which they stated that the applicant joined as leave vacancy/substitute Safai Karamchari and was not working as daily wager and hence, the applicant was not entitled for regularization as the substitute employees are not entitled for regularization. 3.1 They further stated that during verification, it was discovered that as many as 13 Safai Karamcharis had obtained regularization order by submitting fake and forged documents of muster roll and other ancillary documents. The applicant had submitted fake and forged muster roll and other such documents in support of claim of regularization. During scrutiny of documents, it was discovered that the applicant had never worked with the answering respondent and forged the muster roll and other record as the documents so submitted were fake and forged. Soon upon discovery of fake appointment, the respondents cancelled the appointment of 13 Safai Karamchari including the applicant. 3.2 The respondents further submitted that the impugned order has been issued after vigilance department had conducted the enquiry and the regularization of the applicant was cancelled on the basis of that inquiry.
43.3 They further submitted that the applicant has approached this Tribunal without making any representation against the impugned order dated 16.2.2006 and hence, the instant OA is not maintainable.
4. The applicant has not chosen to file any rejoinder.
5. During the course of the arguments, learned counsel for the applicant submitted that respondents have rejected the appointment of the applicant vide impugned order without affording any opportunity to show cause notice, which amounts to violation of principles of natural justice and therefore, the impugned order dated 16.2.2016 is liable to be quashed on this ground alone.
6. Counsel for the respondents submitted that initial appointment of the applicant was against leave vacancy/substitute Safai Karamchari and he was not a daily wager and he was not entitled to be considered for regularization as substitute employees are not entitled for regularization. However, he further submitted that during verification, it was discovered that as many as 13 Safai Karamcharis had obtained regularization order by submitting fake and forged documents of muster roll and other ancillary documents and the applicant had also submitted fake and forged muster roll and other such documents in support of claim of regularization. During scrutiny of documents, it was discovered that the applicant had never worked with the answering respondent and forged the muster roll and other record as the documents so submitted were fake and forged. Soon upon 5 discovery of fake appointment, the respondents cancelled the appointment of 13 Safai Karamchari including the applicant on the basis of inquiry conducted by the Vigilance Department in this regard. Counsel, therefore, submitted that there is no illegality in cancelling the appointment of the applicant, which he obtained on the basis of forced and fake documents.
7. Heard learned counsel for the parties and perused the material placed on record.
8. It is an admitted fact that applicant was initially appointed as Safai Karamchari on being Awazdar (Substitute) on 2.1.1990 and since then he had been working as such. From this admission of the applicant, it is quite clear that engagement of the applicant is not against any post but as a substitute safai karamchari. Counsel for the applicant has not produced any law or rules, which provide that substitute has a right to be considered for regularization. The respondents have refuted the claim of the applicant on the ground that he was obtained offer of appointment on the basis of fake and forged documents and on verification, the services of 13 such employees, including the applicant, were terminated as they had secured the appointment on the basis of fake and forged documents.
9. So far as contention of the applicant that no opportunity was given to the applicant before passing the impugned order is concerned, the respondents have categorically stated that the applicant has not represented against the impugned order before approaching this Tribunal and this Court also finds that the 6 applicant has not annexed any representation/application, therefore, this plea of the applicant is not acceptable as the said order was passed on 16.2.2006 and the applicant was agitating this matter before this Tribunal earlier also and now also in this OA which was filed in 2015 pursuant to liberty given to the applicant by this Tribunal vide Order dated 29.4.2015 passed in OA 3805/2011. It is cardinal principle of law that a plea, which has not earlier been raised before the competent authority, cannot be raised before the Court while challenging the order on the same very plea.
10. In the facts and circumstances of the present case, this Court finds no merit in the present OA and the same is accordingly dismissed. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/