Mukesh Kumar Bhardwaj vs Mcd
2011 Latest Caselaw 2536 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 11th May, 2011.

+                           W.P.(C) 203/2011

%        MUKESH KUMAR BHARDWAJ                   ..... Petitioner
                    Through: Mr. Anuj Aggarwal, Adv.

                                   Versus

         MCD                                                 ..... Respondent
                            Through:      Ms. Saroj Bidawat, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                     No
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns the award dated 22 nd September, 2011 on

the following reference:

"Whether the services of Sh. Mukesh Kumar Bhardwaj S/o Late Sh. Mahabir Singh Bhardwaj have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential

benefits in terms of existing laws/govt. Notification and to what other relief is he entitled and what directions are necessary in this respect?"

against the petitioner workman.

2. The petitioner in his claim petition before the Industrial Adjudicator in

pursuance to the reference aforesaid pleaded that, he joined the employment

of the respondent MCD with effect from 14 th October, 1997 as a Chowkidar;

that he was initially assigned the job in the Municipal Primary School,

Sangam Park-I, Civil Lines, Delhi and thereafter in Municipal Primary

School, Kamla Nagar, Civil Lines, Delhi from 1st January, 1998 and he

continued to work there till 15th July, 1999; that he was treated as a daily

rated/casual/muster roll worker and was being paid minimum wages; that his

services were terminated with effect from 17 th July, 1999 on the allegation

that he had forged and fabricated the signatures of the Appointing Authority.

It was the case of the petitioner that the work being taken from him was of a

regular and permanent nature and the respondent MCD was indulging in

unfair labour practice in depriving the petitioner of the status, salary and

privileges of a regular employee; that he was terminated without any charge

sheet or inquiry; that he had completed more than 240 days of continuous

employment prior to illegal termination and could not be thrown out of

employment in the manner done.

3. The respondent MCD in its written statement/reply before the

Industrial Adjudicator pleaded that the petitioner had succeeded to get

engagement as a daily wager Chowkidar in the respondent MCD on the

basis of forged and fabricated engagement letter of the Education

Department; that an Education Committee/Screening Committee was

constituted to examine the authenticity of the appointments of such daily

wage employees as it had come to the notice of the respondent MCD that

many such persons were working in MCD Schools on the basis of forged

and fabricated appointment letters by manipulating the records of respondent

MCD; that the petitioner was also found to be one such person and

accordingly his services were disengaged vide Officer Order dated 7th July,

1999. It was thus the case of the respondent MCD that the engagement of

the petitioner being ab initio void and the petitioner having never been

engaged or appointed by the respondent MCD, there was no employer-

employee relationship and the claim of the petitioner was misconceived. It

was further pleaded that the petitioner had suppressed the said facts.

4. The parties led their evidence before the Industrial Adjudicator. The

Industrial Adjudicator on the basis of record before him held:

(i) that though according to the petitioner also his services were

terminated on 15th July, 1999 but the dispute was raised after 8 years,

only in the year 2007 and hence the claim of the petitioner was bad for

laches and acquiesce.

(ii) that for any appointment in the Government Department there

are Rules and Regulations of appointment; that none of the procedure

had been adopted in the matter of appointment of the petitioner; that

the appointment of the petitioner was thus an irregular appointment

and such illegality could not be regularized.

(iii) that it stood proved that the engagement of the petitioner was

on the basis of a fake appointment letter of Rest Reliever post.

(iv) that even on the date of the alleged appointment, the petitioner

had crossed the age limit for appointment and there could have been

no appointment beyond the age limit.

The Industrial Adjudicator thus held that the question of termination

did not arise since the appointment was based on forged and fabricated

documents and also for the reason that the petitioner was not eligible for the

post since he was, on the date of the appointment claimed by him, over age.

5. The petitioner in the writ petition preferred before this Court also has

not given any explanation whatsoever for the delay from the date of

termination i.e. 15th July, 1999 till 12th November, 2005 when the petitioner

claims to have got issued a demand notice for the first time. Though the

petitioner has not given any date of applying to the Labour Commissioner

but it appears that the application in that regard was made only in the year

2006 or 2007 inasmuch as the reference of dispute to the Industrial

Adjudicator came to be made only on 26th June, 2007.

6. The plea of the petitioner is that the termination of employment of the

petitioner being for the reason of the petitioner having forged and fabricated

the documents, was stigmatic and no in house investigation/inquiry having

been conducted, was bad.

7. The writ petition came up first before this Court on 2 nd May, 2011

when also the counsel for the petitioner contended that the Industrial

Adjudicator ought to have decided the reference in favour of the petitioner

for the reason of the termination being without any inquiry whatsoever. It

was put to the counsel for the petitioner whether the forgery which the

Industrial Adjudicator had found, the petitioner to have committed, would

not vitiate the appointment itself, making the same nonest and resultantly

there being no need for termination. It was also put to the counsel that the

opportunity for leading evidence having been given before the Industrial

Adjudicator, whether the grievance of inquiry having not been conducted

prior to termination survived. The counsel for the petitioner had then sought

time to address on the matter.

8. The counsel for the petitioner has today handed over the list of

documents along with documents filed by the petitioner before the Industrial

Adjudicator. The same are taken on record. Attention is invited to the

Office Order dated 24th December, 1997 recording the number of working

days of the petitioner and the payment. The same however in my view

would be irrelevant. The question for consideration is that if initial

engagement is on the basis of forged and fabricated documents, whether the

respondent MCD was required to hold a departmental inquiry and even if it

was so required, evidence in this regard having been led before the Industrial

Adjudicator, whether the termination/disengagement can be now set aside

for the reason of inquiry having not been conducted.

9. The counsel for the petitioner has also invited attention to the

judgment of the Division Bench of this Court in Soran Singh Vs. UOI

MANU/DE/1560/2008; in that case the Railways had dispensed with the

workman upon detection by the Vigilance Branch of his employment on the

basis of bogus or forged casual labour card and without giving any

opportunity to the workman to furnish explanation. However, in that case

the Railways failed to adduce any evidence before the Industrial Adjudicator

also, of the service card of the workman in that case being fake or forged

and it was thus held that the termination was illegal. The said judgment is

thus not applicable to the facts in the present case where the Industrial

Adjudicator on the basis of the evidence led before him has returned a

finding of the appointment of the petitioner herein being on the basis of

fabricated documents. The said finding of the Industrial Adjudicator is a

finding of fact and not to be ordinarily disturbed in exercise of powers of

judicial review unless shown to be perverse or unreasonable or based on no

evidence whatsoever.

10. The counsel for the petitioner has also invited attention to the

judgment of the Apex Court in P.S.E.B. Vs. Leela Singh 2007 (113) FLR

221; in my view, the said judgment also would not apply. Though the

termination in that case also was on the allegation of forgery of documents

of appointment and without any departmental inquiry but the same came to

be challenged by way of a writ petition in the High Court and it was in the

said context that it was held that without inquiry and giving an opportunity,

action could not have been taken. In the present case as aforesaid, the

inquiry in this regard has been held before the Industrial Adjudicator and

who has returned a finding of fact of forgery and fabrication of documents

and over age against the petitioner.

11. Else, this Court in Shri Virender Singh Vs. The Presiding Officer

2006 (92) DRJ 647 held that appointment on the basis of fraud is no

appointment in the eyes of law. Reliance was placed on R. Vishwanatha

Pillai Vs. State of Kerala 2004 (2) SCC 105 laying down that the right to

salary and pension flows from a valid and legal appointment and if the

appointment is not legal and valid or has been obtained fraudulently and

rested on a false Caste Certificate, no such benefits can be awarded. It was

yet further held that a person who entered the service by producing a false

Caste Certificate and obtained appointment to the post meant for a

Scheduled Caste thus depriving the genuine Scheduled Caste of appointment

to that post does not deserve any sympathy or indulgence of the Court.

Reference was also made to Ram Saran Vs. I.G. of Police, CRPF AIR 2006

SC 3530 also laying down that no leniency can be shown to a person who

has obtained appointment on the basis of forged documents, otherwise it

shall amount to giving premium to a person who committed forgery.

Similarly, in Pramod Kumar Vs. U.P. Secondary Education Services

Commission AIR 2008 SC 1817 it was held that an appointment which is

contrary to the statute/statutory rules is void in law. Mention may also be

made of the recent judgment in State of Orissa Vs. Mamata Mohanty 2011

(2) SCALE 377 laying down generally that an order bad in its inception does

not get sanctified at a later stage and a subsequent action/development

cannot validate an action which was not lawful at its inception for the reason

that illegality strikes at the root of the order. It was further held that it would

be ironic to permit a person to rely upon a law in violation of which he has

obtained the benefits and if an order at the initial stage is bad in law then all

further proceedings consequent thereto will be nonest and have to be

necessarily set aside. A right in law exists only and only when it has a

lawful origin.

12. The counsel for the petitioner has next argued that the finding of the

Industrial Adjudicator is perverse. I have perused the evidence by way of

Examination-in-Chief and the Cross-Examination of the petitioner and of the

witnesses of the respondent MCD. In fact the said evidence reveals that a

proper inquiry was conducted qua 105 employees, detected by the Screening

Committee to have been appointed on the basis of forged documents and it

was on the basis thereof only that the action was taken. It is also borne out

that an FIR in this regard was also lodged and prosecution is underway.

13. The counsel for the petitioner has urged that the onus was on the

respondent MCD to prove forgery and fabrication and which has not been

done and thus the finding of the Industrial Adjudicator is perverse. In my

view, the onus of proving that the documents of appointment were genuine

and bona fide was on the petitioner, respondent MCD could not have been

called upon to prove in the negative. It was for the petitioner to prove that

the documents on the basis whereof he claimed appointment, were issued by

the competent officers of the respondent MCD and in the normal course of

the performance of their duties. Nothing of the sort has been proved by the

petitioner.

14. The delay of 8 years on the part of the petitioner in raising the dispute

is also in my opinion fatal to the case and sufficient for this Court to on this

ground alone refuse to exercise jurisdiction. The petitioner, when the matter

appears to have been hot, chose to lie low and is found to have raised the

dispute only by way of wager. It is settled position in law that the delay in

raising the dispute is sufficient for this Court to refuse to exercise discretion

in the matter.

15. There is no merit in the writ petition; the same is dismissed. No order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

MAY 11, 2011 bs (corrected and released on 18 th May, 2011)