Municipal Corporation Of Delhi vs Shri Vijay Singh & Ors.
2010 Latest Caselaw 1753 Del

                *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

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

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

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

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

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

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.

However 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.

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

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