*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.3120/1993
% Date of decision: 5th April, 2010
MUNICIPAL CORPORATION OF DELHI ..... Petitioner
Through: Mr. Vikas Kumar for Mr. Arvind Nayar,
Advocates.
Versus
SHRI VIJAY SINGH & ORS. ..... Respondents
Through: Mr. Anuj Aggarwal, Advocate for R-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Yes
be allowed to see the judgment?
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner MCD impugns the ex parte award dated 20th May, 1987 of the Labour Court holding the termination by the petitioner MCD of the services of the respondent no.1 workman to be illegal and further directing the petitioner MCD to reinstate the respondent no.1 workman with full back wages and continuity of service. The petitioner MCD on 28th March, 1988 applied to the Labour Court for setting aside the ex parte award. The said application was also dismissed vide order dated 11th December, 1992. The Labour Court held that it was functus officio and not empowered to entertain the application. The said order is also challenged in this writ petition. This Court vide ex parte order dated 7th WP(C) No.3120/1993 Page 1 of 10 July, 1993, while issuing Rule in the petition, stayed the operation of the ex parte award. The said order has continued in force till now.
2. The claim of the respondent no.1 workman before the Labour Court was that he had been employed as a Beldar with the petitioner MCD since 1976; that his superior officers were annoyed with him because he was not obliging them by doing their personal works; that for this reason on 15th September, 1984 he was served with a letter of termination of his services under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. It was the case of the respondent no.1 workman that he was a permanent employee and thus the question of termination of his services considering him as a temporary employee and without holding any inquiry was bad.
3. The Labour Court, in the absence of any rebuttal by the petitioner MCD held that it appeared that the respondent no.1 workman was a permanent employee and his services could not be terminated under the Central Civil Services (Temporary Service) Rules, 1965. It was also found that the provisions of Section 25F of the Industrial Disputes Act, 1947 had not been complied with. Accordingly the award.
4. It is the case of the petitioner in the writ petition that as per the service book of the respondent no.1, he was appointed as a temporary Beldar on 9th February, 1984 vide A.O.(DOO) No.33 (Dist.) dated 7th February, 1984; that the respondent no.1 at the time of his appointment had given a declaration that in case the particulars declared by him were found to be incorrect, his services could be WP(C) No.3120/1993 Page 2 of 10 terminated without assigning any reason; that the police verification of the respondent no.1 showed that he had been arrested and convicted of offence under Section 160 of the Indian Penal Code and was punished with fine; that he had concealed the said fact at the time of securing appointment with the petitioner MCD and accordingly his services were terminated as aforesaid.
5. Though the averments aforesaid have been made in the memorandum of petition but the petitioner MCD has along with the petition neither filed any order of temporary appointment of the respondent no.1 nor any report of any police verification and not even the order of termination.
6. The respondent no.1 workman has filed a counter affidavit in which it is inter alia reiterated that he had been working with the petitioner MCD on daily wages since 1976. In support thereof a photocopy of a certificate of the year 1982 issued by the Executive Engineer of the MCD has been filed. It is further stated in the counter affidavit that the petitioner MCD had vide a memorandum dated 31st December, 1983 offered the post of Beldar (E&M) to the muster roll workers and in which memorandum the name of the respondent no.1 finds mention at serial No.13. A photocopy of the said memorandum has also been filed before this Court. It is further stated in the counter affidavit that the respondent no.1 had accepted the aforesaid offer and was vide office order no.130 dated 14th February, 1984 posted as Beldar. A photocopy of the said office order dated 14th February, 1984 has also been filed. The respondent no.1 has along with his counter affidavit also filed the photocopy of the order dated 15th September, 1984 of his termination WP(C) No.3120/1993 Page 3 of 10 in exercise of power under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.
7. The petitioner MCD has not filed any rejoinder to the aforesaid counter affidavit. It shows a total lack of interest on behalf of the petitioner MCD in contesting the case. Inspite of having been proceeded against ex parte before the Labour Court, no effort has been made to pursue the case properly at least before this Court. This Court has no option but to believe what has been stated in the counter affidavit.
8. The office order dated 14th February, 1984 (supra) relied upon by the respondent no.1 is an order of posting. It refers to the respondent no.1 having joined in terms of Office Order no.33 (Dist.) dated 7th February, 1984 i.e. the same order by which the petitioner MCD claims that the respondent no.1 was appointed on a temporary basis. The respondent no.1 has however shied away from filing the Office Order No.33 dated 7th February, 1984. The counsel for respondent no.1 after taking instructions informed that respondent no.1 is not in possession of the said order. Adverse inference had to be drawn against the respondent no.1 for the same. The conclusion is that the appointment of the respondent no.1 w.e.f. 7th February, 1984 was temporary, notwithstanding the fact that he had been working as a daily wager with the petitioner MCD since 1976.
9. Upon the same being put to the counsel for the respondent no.1, he contends that the respondent no.1 having worked with the petitioner MCD for over 240 days from 1976 till his appointment in 1984, he was in any case an WP(C) No.3120/1993 Page 4 of 10 employee whose services could not be terminated under Section 25F of the ID Act. It is contended that the provisions of the ID Act would prevail over the temporary appointment, if any, of the respondent no.1. However, I am unable to accept the said contention of the counsel for the respondent no.1. The dispute raised by the respondent no.1 was not of his having become an employee of the petitioner MCD for the reason of having remained a muster roll employee of the MCD from 1976 till 1984. The respondent no.1 willingly accepted the temporary employment on 7th February, 1984, thereby giving up rights, if any, which may have accrued to him prior thereto for the reason of having remained as a daily wage employee of the petitioner MCD from 1976. The rights of the respondent no.1 have to be adjudicated only on the basis of the temporary appointment accepted by him on 7th February, 1984.
10. The counsel for the respondent no.1 has next contended that even a temporary employee could not have been terminated without giving an opportunity. I find that though reason has been given in the petition for termination of employment of the respondent no.1 but in the order dated 15th September, 1984 of termination, no reason whatsoever has been given. It thus cannot be said that the termination of employment of the respondent no.1 was stigmatic.
11. Under Rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965, the services of a temporary Government servant, who has not been declared quasi permanent, can be terminated at any time by one month's notice in writing WP(C) No.3120/1993 Page 5 of 10 given either by the Government servant to the appointing authority or by the appointing authority to the Government servant.
12. In Parshotam Lal Dhingra Vs. Union of India AIR 1958 SC 36, it was held that if a right exists under the contract of employment or the service rules to terminate the service, the motive operating in the mind of the Government is wholly irrelevant. It was held that if the termination of service is founded on the right flowing from the contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. I find the best exposition on the CCS (Temporary Service) Rules in Champaklal Chimanlal Shah Vs. UOI AIR 1964 SC 1854, a judgment of five judge bench of the Supreme Court. The Supreme Court held that a Government servant is deemed to be in quasi permanent service if he has been in continuous government service for more than three years. However, one who has not become quasi-permanent can be removed under Rule 5 (supra). It was held that Rule 5 gives power to the government to terminate the services of a temporary government servant by giving him one month's notice or pay in lieu thereof. The said rule was held to be not hit by Article 16 of the Constitution of India and was also not held to be discriminatory. It was further held that Article 311 of the Constitution provides protection only where discharge is by way of punishment and not otherwise. However, where discharge is under Rule 5 and is not stigmatic, Article 311 was held not to apply. To the same effect is another five judge bench judgment of the Supreme Court in A.G. Benjamin Vs. UOI 1967 (1) LLJ 720, where during the course of departmental proceedings, enquiry was dropped, dismissal simplicitor was permitted under Rule 5 and Article 311 was held not WP(C) No.3120/1993 Page 6 of 10 attracted. A two Judge Bench in Kanhialal Vs. District Judge AIR1983SC351 held that even a temporary employee is entitled to protection of Article 311(2) of the Constitution and no penal order could be passed against him without complying with the requirements of that Article. In Kanhialal the discharge was for the reason of negligence and carelessness. Here, as I have noticed above, the order of dismissal does not give any reason whatsoever and the reason has been stated merely in the writ petition to demonstrate that the order is not whimsical but backed by reason. The counter affidavit of the respondent no.1 makes a reference to Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress AIR 1991 SC
101. However that case was concerned with the rights of the permanent employees and not with the temporary employees. However Parshotam Lal Dhingra (supra), though mentioned in the said judgment was not dissented from. It was thus enquired from the counsel for respondent no.1 as to how the termination of respondent no.1, a temporary employee, in exercise of powers under the Central Civil Services (Temporary Service) Rules, 1965 could be held to be bad.
13. The counsel for the respondent no.1then drew attention to A] Management of MCD Vs. Prem Chand Gupta 2000 ILLJ 533SC.
In this case also appointment was temporary and terminated within four months; however the workman was reappointed on a vacant post and continued so for about two years. In this fact scenario the Supreme Court held that since the workman had completed 240 days of continuous service immediately preceeding his ultimate termination, Section 25F would still apply. The termination without following procedure of Section 25F of ID Act was held bad. I must record that Champaklal Chimanlal Shah(supra) was not noticed in this judgment.
WP(C) No.3120/1993 Page 7 of 10However in the present case the respondent no.1 after his temporary employment had not completed 240 days of continuous service. Only if the period of service since1976 i.e. since prior to his temporary appointment is counted, can it be said that he had completed 240 days of continuous service. I have already hereinabove held that the said period is to be not counted. B] Mahabir Vs. D.K. Mittal Dy. Chief Mechanical Engineer N.E.
Railway MANU/BH/0171/1978 where Division Bench of Patna High Court held that in view of Section 25J of ID Act, notwithstanding Rules of service, provisions of ID Act viz. Section 25F have to be complied with.
C] Union of India Vs. Presiding Officer CGIT 1995 (71) F.L.R. 20 where the Madhya Pradesh High Court held that Rule 5 of CCS (Temporary Service) Rules 1965 is not inconsistent with Section 25F of ID Act and both can be made applicable and are supplementary to each other.
D] Delhi Cantonment Board Vs. CGIT 129(2006) DLT 610 where Division Bench of this Court held that in Industrial Law there is no distinction between a permanent and a temporary employee.
14. What follows from above is that even for temporary employees, including those governed by CCS(Temporary Service) Rules 1965, the provisions of Section 25F of ID Act are to be complied with. The contention of counsel for respondent no.1 is that they have not been complied with. However Section 25F comes into play only in case of workman who has been in continuous service for not less than one year or 240 days. The respondent no.1 was appointed as a temporary employee on 9th February, 1984 and was terminated on 15th September, 1984 and had not worked for one year or 240 days at the time of termination of his services. WP(C) No.3120/1993 Page 8 of 10 As aforesaid, his service prior to temporary appointment on 9th February, 1984 cannot be considered and was also not subject matter of investigation.
15. I may however notice that a Division Bench of Bombay High Court in Union of India Vs. The Presiding Officer, CGIT MANU/MH/1204/2004 has held that a reference under Section 10 of ID Act on a dispute emanating from termination of services under Rule 5 of CCS (Temporary Service) Rules, 1965 is required to be disposed of on the basis of said rules only framed under Article 309 of the Constitution and not with reference to Section 25F of the ID Act. Prem Chand Gupta (supra) was sought to be distinguished as relying on cases of corporation, company or undertaking of Central Government and not of Government itself and to whom the rules aforesaid applied.
16. Thus on the basis of documents of respondent no.1 himself, the award holding removal from employment of respondent no.1 to be bad cannot be sustained. The respondent no.1 is not found entitled to any relief.
17. A perusal of the order sheet of this Court shows that at one time the file of the Labour court was called for, perhaps to determine as to whether the notice of the Labour Court was served on the petitioner MCD or not. However the said file is untraceable and has not been received in this Court. This petition having already remained pending for the last about 17 years, need was not felt to await the file any further and in the circumstances the parties were heard.
18. Yet another fact which needs to be mentioned is that though the award was in favour of the respondent no.1 and operation thereof was stayed by this Court and which stay remained in operation for 17 years but the respondent no.1 has not WP(C) No.3120/1993 Page 9 of 10 applied under Section 17B of the ID Act. Obviously the respondent no.1 is gainfully employed elsewhere.
19. The petition is accordingly allowed. The award dated 20th May, 1987 is set aside and quashed. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) 5th April, 2010 pp WP(C) No.3120/1993 Page 10 of 10