Delhi District Court
Smt. Geeta Devi Moga vs Municipal Corporation Of Delhi on 2 July, 2011
1
IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 31/08
Smt. Geeta Devi Moga
W/o Sh. Kanwar Singh Moga
C/o WZ130A, C24
Naraina Village
Delhi110028. ...... Workman
VERSUS
Municipal Corporation of Delhi
Through its Commissioner
Town Hall
Chandni Chowk
Delhi. ...... Management
Date of Institution : 06.02.08
Judgment reserved : 02.07.11
Date of decision : 02.07.11
A W A R D
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F24(2082)/06/Lab./249253 dated 17.01.08 referred the ID No. 31/08 1/18 2 dispute for adjudication between the Management Municipal Corporation of Delhi and its workman Smt. Geeta Devi Moga in the following terms of reference:
"Whether services of Smt. Geeta Devi Moga W/o Sh. Kanwar Singh Moga have been illegally and/or unjustifiably terminated by the management; and if yes, to what relief is she entitled?"
2. As per claim, the workman had been working with the management as School Attendant vide office order dated 18.09.98. She was directed to report to AEO, Karol Bagh Zone. The same was duly done by her and she was appointed in School situated at Harizan Basti, Karol Bagh, New Delhi. It is further stated that before her appointment due scrutiny and screening of her candidature was made by the management as per departmental rules and regulations. It is further stated that claimant joined MCD primary school, Harizan Basti, Karol Bagh zone after proper verification by the management, started releasing her wages accordingly after due sanction, budget allocation and verification by the accounts department. It is further stated that on 29.08.2000 she received an office order by which her services were abruptly terminated. Upon enquiries the management told her that her services were terminated along with many other persons because her appointment is bonus/illegal. Most aggrieved person filed civil writ petitions. Pursuant to the ID No. 31/08 2/18 3 filing of the said writ petitions to the Hon'ble High Court of Delhi, termination orders of most of the persons including similarly placed colleague of the claimant Smt. Pushpa Rani W/o Sh. Vinod Kumar were withdrawn by the management vide office order dated 31.10.02. Many other persons similarly situated rejoined the services of the management and are still working. It is further stated that School Mistress of the claimant assured her that as per the orders of the Hon'ble High Court, her termination order shall also be withdrawn by the management. It is further stated that on 11.04.02 the Hon'ble High Court of Delhi directed the management office to reverify the cases of the terminated persons but the same has not been done in the case of the claimant. It is further stated that the claimant's appointment is proper, legal and valid and not bonus in any manner therefore termination of her services is illegal, in valid, unjust, voidabinitio and as such nonexistent in the eyes of law for following amongst other reasons.
i. Termination of her services was without assigning any valid reasons whatsoever.
ii. The order of termination was given illegally and nonemployment was forced on her.
iii. the job against which she was working is of a regular and permanent and continuing nature and that post was duly sanctioned. iv. that the claimant is innocent and has not committed any misconduct ID No. 31/08 3/18 4 during her services tenure with the management. She always worked with honesty and utmost sincerity. No memo or charge sheet was ever been served upon her. She was never afforded any opportunity of being heard, despite the fact that termination is punitive and stigmatic in nature. The management did not resorted to any scientific proper and legal way to ascertain the genuineness of her appointment letter. In fact, she promptly submitted her appointment letter in original to the concerned authority through proper channel but her services were terminated without even calling her for verification, but her services were terminated without even calling her for explanation and to show that the appointment as well as the appointment letter is genuine.
v. that at the time of termination of her services, no notice was given and no service compensation has been either offered or paid to her. vi. that her name has been struck off from the rolls of the management. vii. that at the time of the termination of her services, no seniority list has been displayed by the management. Her juniors were retained and management even engaged fresh hands after the termination of her services.
viii. That the termination of services of the claimant was in violation of section 25D,F,G,h, N,T and U of ID Act.
ID No. 31/08 4/18
5 It is further stated that the claimant is unemployed from the date of illegal termination of her services by the management. It is further stated that subsequent to this the claimant served a legal notice to the management on 17.03.05 by hand and the same was duly received on the very same day but till date no reply was given and as such her demand was rejected.
3. AR for management appeared and filed WS wherein it is stated that claimant was not engaged as daily wager Nursery Aya by the management and infact she obtained the engaged on the basis of a forged engagement on the basis of forged engagement letter dated 18.09.98, which was absolutely fake and contains the fake signatures of A. E.O Head Quarter, Hence, it is apparent that Geeta Devi Moga had obtained employment in the MCD by forged means. She has produced an office order dated 18.09.98 claiming signatures of Assistant Education Officer, Head Quarter and further the diary no. mentioned on the said forged letter was also a fictitious one. On the basis of the aforesaid office order, the claimant had fraudulently worked from 3.10.98 to 31.07. 2000. She was relieved vide office dated 29.08.2000. It is further submitted 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 along with the some other defaulting daily wages employees was concealed by the order dated 7.08.2000 passed by the competent authority. Hence, the claim is not ID No. 31/08 5/18 6 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 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 11.09.2000 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.
ID No. 31/08 6/18
7 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 03.10.98. 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.
4. On the strength of the pleadings of the parties, following issues were framed on 19.05.09 :
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 Smt. Geeta Devi Moga examined herself.
On behalf of management, Smt. Vijay Laxmi, Assistant Education Officer, examined as MW 1.
6. WW 1 in evidence by way of affidavit supported the averments made in ID No. 31/08 7/18 8 the claim and exhibited documents as Ex. WW 1/1 to 10 and marked as Mark A to C. In cross examination of WW 1, she stated that she had worked with the management as Nursery Aaya w.e.f 18.09.98 to 29.08.2000. She further stated that she was told by someone about the said post in MCD. She submitted an application for the said post. She further stated that her name was sponsored by Employment Exchange but she did not have any copy of the same. She further stated that no test was conducted. However, she was interviewed. She further stated that she could not tell the number of members of the interview board. She further stated she worked as Nursery Aaya. She admitted that an enquiry was conducted by the MCD regarding irregular appointment. She further admitted that she was terminated after report of Screening Committee.
7. MW 1 Sh. Smt. Vijay Laxmi in examination in chief supported the averments mentioned in the WS.
In cross examination, she suggested it wrong that the appointment letter of the workman is genuine. She voluntarily stated that the same is forged. She admitted that the household enquiry was being conducted against the workman along with other coworkers. She further stated that she could not say whether the said appointment letter was issued from Head Office or not. She further stated that the signatures of issuing officer on the ID No. 31/08 8/18 9 said appointment letter were forged. She further stated that no forensic examination was conducted regarding the forged signatures since the signatures were denied by the issuing officer on the said appointment letter. She admitted that no brake has been given to the workman during her service period except the maternity leave she had availed. She further admitted that the workman was getting her salary from the department where she was employed. She further stated that no individual preliminary enquiry was conducted against the workman before her dismissal. She stated voluntarily that a joint enquiry was conducted against 105 workmen regarding forged appointment. She further stated that she was not the member of Screening Committee. She further stated that no individual complaint was made against the workmen. She further stated that she had no verification report of the officer who denied his signatures on the appointment letter. She stated voluntarily that the verification report of the screening committee was there.
8. Final arguments heard.
AR for workman stated that the workman was appointed by the management as School Attendant vide office order dated 18.09.98. Thereafter on 29.08.2000 she received an office order by which her services were terminated. The reason of termination was told as "Appointment Illegal".
ID No. 31/08 9/18
10 On the other hand, AR for management stated that the claimant was not engaged as daily wager Nursery Aaya by the management and in fact she 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 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 dated 11.09.2000.
9. 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 ID No. 31/08 10/18 11 is that the date of termination is w.e.f 11.09.2000. The present statement of claim has been filed in the year 2008. Hence, the reference is bad for latches. So far as the dispute filed by the workman is concerned, limitation period of three years 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
(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 ID No. 31/08 11/18 12 may show that she 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 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 ID No. 31/08 12/18 13 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 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 ID No. 31/08 13/18 14 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.
(e) In the cross examination, workman had stated that her name was forwarded/sponsored by the Employment Exchange. However, she failed to place on record any such document. Hence, the workman failed to prove that she was sponsored by the Employment Exchange as stated by her.
Admittedly no test was conducted. The workman failed to state where interview took place. It is very strange that the workman has further admitted that his statement in the affidavit as well as in the claim is incorrect/false as she never worked as School Attendant with the management. When the workman herself stating in the statement of claim of joining as incorrect what can be done.
(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.
ID No. 31/08 14/18
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(a) In Krishan Yadav and anr. Vs. State of Haryana & ors. ( 1994) 4 SCC 165, it was held that where :
"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 ID No. 31/08 15/18 16 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 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 :ID No. 31/08 16/18
17 "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 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.
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.ID No. 31/08 17/18
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10. 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)
on 2nd July, 2011 Additional District & Session Judge
Presiding Officer labour Court XVI
Karkardooma Courts : Delhi.
ID No. 31/08 18/18