Delhi High Court

Dulari Devi vs Mcd on 19 December, 2008

Author: S. Muralidhar

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                W.P.(C) No. 763 of 2008 & C.M. No.1484 of 2008

                                 Judgment reserved on: December 05, 2008
                                 Date of decision: 19th December, 2008


       DULARI DEVI                                         ..... Petitioner
                                         Through : Mr. R.K. Sharma, Advocate.

                        versus

       MUNICIPAL CORPORATION OF DELHI           ..... Respondent
                        Through Mr. Amit K. Paul, Advocate.


                                         WITH

                W.P.(C) No. 3153 of 2008 & C.M. No.6085 of 2008

       AVDESH SINGH                                              ..... Petitioner
                                         Through : Mr. R.K. Sharma, Advocate.

                        versus

       MUNICIPAL CORPORATION OF DELHI          ..... Respondent
                        Through Mr. Amit K. Paul, Advocate.


                                 AND
                W.P.(C) No. 3156 of 2008 & C.M. No.6090 of 2008

       AJAY KUMAR                                                ..... Petitioner
                                         Through : Mr. R.K. Sharma, Advocate.

                        versus

       MUNICIPAL CORPORATION OF DELHI         ..... Respondent
                        Through Mr. Amit K. Paul, Advocate.


        CORAM:
        HON'BLE DR. JUSTICE S. MURALIDHAR


 1. Whether Reporters of local papers may be

     allowed to see the judgment?                                     No

 2. To be referred to the Reporter or not?                           Yes

 3. Whether the judgment should be reported in
W.P.(C) Nos. 763 of 2008, 3153 of 2008 & 3156 of 2008               Page 1 of 10
      Digest?                                                Yes

                                         JUDGMENT

S. MURALIDHAR, J.

1. The facts in these three petitions are more or less similar and therefore

they are being disposed of by this common judgment.

2. Writ Petition (C) No.763 of 2008 is by Dulari Devi seeking a writ to

quash an order dated 19th September 2006 passed by the Respondent

Municipal Corporation of Delhi („MCD‟) relieving her from service at the

Leprosy Home (MCD), Tahirpur, Shahdara, Delhi. A further direction is

sought to treat the Petitioner on duty with effect from that date.

3. Writ Petition (C) No.3153 of 2008 is by Avdesh Singh seeking similar

relief in relation to an identical order dated 19 th September 2006 relieving

him from service at the Leprosy Home (MCD), Tahirpur, Shahdara, Delhi.

4. Writ Petition (C) No.3156 of 2008 is by Ajay Kumar seeking to

challenge an order dated 23rd September 2006 asking him to produce

proof of his appointment with the MCD prior to being posted at the

Leprosy Home, MCD, Shahdara.

5. Each of these Petitioners claims that they were "appointed" as daily

wagers in the Leprosy Home of the MCD at Tahir Pur, Shahdara.

However, none of the Petitioners says from which date they were so

appointed. In fact each of the writ petitions is more or less similarly

worded. In each of them it is stated that on 6 th February/ 8th March 2004 a

letter/order was given to the Petitioner by the Administrative Officer

(Health) whereby each of them was asked to join duty with the Medical

Officer In-Charge (MOIC) at the Leprosy Home, Tahir Pur, Shahdara.

6. Interestingly, in the order dated 6th February 2004 (copy of which is

annexed to the writ petition) Smt. Dulari Devi is described as Daily

Wager Ward Aya [under posting AO (H)] who is being "posted in the

Leprosy Home Tahirpur Shahdara, Delhi against the vacant post of Daily

Wager Ward Aya." In the case of Avdesh Singh the Office Order dated

8th March 2004 describes him as Daily Wager Ward Boy [Under Posting

AO (H)] and it further states that he is being "posted in MOIC/Leprosy

Home Tahir Pur Shahdara Delhi against the vacant post of Daily Wager."

In the case of Ajay Kumar he is described the Office Order dated 6 th

February 2004 as Daily Wager Ward Boy PHC/Fatehpuri Beri Delhi. The

order further states that he is being "transferred and posted to

MOIC/Leprosy Home Tahir Pur Shahdara, Delhi with immediate effect."

The common factor in each of the above orders dated 6th February/8th

March 2004 is that there is a presumption that the Petitioner concerned

was already working in the MCD at the time of his or her posting to the

Leprosy Home, MCD, Tahir Pur, Shahdara, Delhi.

7. Each of the petitions then states that while the petitioners were

continuing to discharge their duties at the Leprosy Home, Tahirpur,

Shahdara, they were suddenly asked by the MCD, by identically worded

letters dated 19th September 2006, to produce any document or record as

proof of their employment in the MCD prior to their posting at the

Leprosy Home, Shahdara. Each of them replied on 21st September 2006

stating that this was their first employment. However they did not

produce any document to show that prior to their posting at the Leprosy

Home, Shahdara, they were employed in the MCD. Accordingly they

were not permitted to resume duty thereafter.

8. Aggrieved by this action, Smt. Dulari Devi filed the aforementioned

writ petition on 24th January 2008 the other two Petitioners filed their

respective writ petitions on 11th April 2008. It is not indicated in any of

these petitions why it took them over one year to approach this Court.

Significantly none of the documents enclosed with the petitions indicate

that any of the Petitioners was appointed in the MCD prior to being posted

in the Leprosy Home, Tahirpur, Shahdara.

9. In response to the notice issued in these petitions, the MCD has filed

its reply in each of the petitions giving the background. The case of the

MCD is that none of these Petitioners was in fact ever appointed in the

MCD. It appears that orders transferring them to the Leprosy Home,

Shahdara were issued without there being any appointment letter to begin

with. These facts came to light on or about 1 st May 2006 when it was

realized that several persons had managed to get employed in the MCD as

daily wagers on the basis of fake documents and bogus transfer orders. A

notice was issued on 5th April 2006 by the MCD asking each of the daily

wagers to produce details of their previous employment. On 12th June

2006 another notice was issued requiring all daily wagers at the Leprosy

Home, Tahir Pur to furnish their attendance certificate and details of

earlier employment in writing. It was stated in the notice that any delay in

the regularisation of their services would be the responsibility of the

employee concerned. When no such information was forthcoming, by

separate orders dated 19th September 2006 each of the Petitioners was

relieved from service.

10. It appears that in the meanwhile in regard to 127 others who had

managed to get appointment in MCD on the basis of fraudulent/fake

documents an Office Order No. ADC(H)/2006/3970 dated 1 st May 2006

was issued. This Order stated that the services of the employees "who had

managed to get appointment in MCD on the basis of fraudulent/fake

documents are hereby terminated." On the same date, i.e. 1st May 2006

another Office Order No. ADC(H)/2006/3972 was issued in respect of 47

others. The second Office Order stated that the said 47 employees were

suspected to have been engaged in getting employment on the basis of

fraudulent/fake documents and they were directed to produce the original

documents/records on or before 8th May 2006 failing which their services

would stand terminated.

11. Both notices were challenged by way of Writ Petition (C) Nos. 8379-

99 of 2006, 82685 of 2006 and 9576 of 2006 in this Court. By a judgment

dated 9th July 2007 a learned Single Judge held the termination of the

services of the said persons to be bad in law as no enquiry was held prior

to coming to the conclusion that these persons had obtained employment

in the MCD on the basis of fraudulent or fake documents. Reference was

made to Section 95(2) of the Delhi Municipal Corporation Act, 1957

(„DMC Act‟) which states that no such officer or other employee shall be

punished either by censure, reduction in rank, compulsory retirement,

removal or dismissal "unless he has been given a reasonable opportunity

of showing cause against the action proposed to be taken in regard to

him." The only exception to this requirement was that the officer

concerned who is empowered to remove the employee should be

"satisfied that for some reason to be recorded by that authority, it is not

reasonably practicable to give that person an opportunity of showing

cause." After going through the records and the notings in the file the

learned Single Judge concluded that no satisfaction had been reached by

the officer concerned that it was not reasonably practicable to follow the

procedure laid down in Regulation 8 and 8A of the relevant Regulations.

In those circumstances it was held that termination of the services of those

127 employees without resorting to the procedure prescribed under Act

and the Regulation was not valid. However the learned Single Judge did

not deem it appropriate to direct reinstatement of the dismissed employees

with back wages. Instead it was directed that an enquiry should be held by

the MCD in these cases and completed within a period of six months and

if any of those Petitioners established their bonafides they would be at

liberty to claim the consequential benefits including back wages.

12. The aforementioned judgment of the learned Single Judge dated 9th

July 2007 in Writ Petition (C) Nos. 8379-99 of 2006, 8268-85 of 2006 and

9576 of 2006 was carried in appeal to this Court by the MCD way of LPA

Nos. 1156 of 2007 and 1184 of 2007. By a judgment dated 9 th October

2007 a Division Bench of this Court dismissed the appeals. A separate

but connected appeal being LPA No. 1156 of 2007 was filed by the MCD

as regards the same judgment dated 9th July 2007. There it was argued

that the Notice No. ADC(H)/2006/3972 dated 1st May 2006 should be

construed to be a show cause notice since seven days‟ time was given to

those 47 employees to produce documents to show that they were in fact

engaged in the MCD on the basis of original documents. The Division

Bench of this Court however dismissed the LPA No. 1156 of 2007

(Municipal Corporation of Delhi v. Amit Kumar) by an order dated 22nd

September 2008. This Court held that the case of Amit Kumar, the writ

petitioner in W.P. (C) No. 9576 of 2006 whose case stood covered by the

impugned order of the learned Single Judge cannot be treated any

differently from other Petitioners covered by that judgment.

13. Reverting to the present case it is clear from the facts narrated

hereinabove that they stand on a different footing. In the first place, a

separate show cause notice was issued to each of the petitioners by the

MCD after the judgment dated 9th July 2007 passed by the learned Single

Judge which in fact required the MCD to do so. Therefore there was no

question of non-compliance with the procedure of providing the

petitioners an opportunity to show cause. Secondly, the wording of the

notice is also different from the wording of either the Office Order

No.3970 dated 1st May 2006 which covered 127 persons or the Office

Order No. 3972 of 1st September May which covered 47 persons.

14. Mr. Amit K. Paul, learned counsel for the MCD has in fact correctly

pointed out that none of these Petitioners has been able to show that they

were ever employed in the MCD prior to their posting at the Leprosy

Home, Shahdara. What they have produced in the Court is only the order

either transferring them to or posting them at Leprosy Home, Shahdara.

In fact each of these orders presupposes that they were already employed

in the MCD when in fact they were not. Mr. Paul has categorically stated

that MCD records do not show that any of these petitioners was in fact

employed with the MCD. In that view of the matter there was no question

of having to comply with Section 95(2) DMC Act read with Regulations.

15. During the hearing of these matters on 17th October 2008 the Court

passed the following order:

"1. These cases will be treated as part heard matters.

2. In all three cases, the petitioners rely on similar orders dated 6th February 2004 issued by the Administrative Officer (Health), Municipal Corporation of Delhi ('MCD'), Shahdara, Delhi transferring them to the Leprosy Home Tahir Pur, Delhi.

3. It is the case of the MCD that each of these office orders were themselves fabricated orders because none of these persons were in fact initially appointed in the MCD. It is also the case of the MCD

that despite show cause notice being issued to each of these persons none of them has been able to produce the original appointment letter indicating that they were at all appointed in the MCD.

4. Learned counsel for the petitioners states that in each of these cases he must be given one opportunity to produce before the Court orders issued by the MCD initially appointing them to posts from which they were sought to be subsequently transferred to the Leprosy Home Tahir Pur, Delhi by separate orders.