Delhi High Court

Mcd Etc. Etc. vs Pushpa Rani on 13 July, 2012

Author: A.K.Sikri

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              LPA No.935 OF 2011
                               LPA No.936 OF 2011
                               LPA No.937 OF 2011
                               LPA No.938 OF 2011

                                             Judgment Reserved on: 10.5.2012
%                                            Judgment pronounced on: 13.7.2012

LPA No.935 OF 2011

       MCD                                                  . . . APPELLANT
                              Through:       Ms. Mini Pushkarna, Advocate.

                                          VERSUS

       PUSHPA RANI                                          ...RESPONDENT

                              Through:       Mr. Anuj Aggarwal, Advocate.

LPA No.936 OF 2011


       MCD                                                  . . . APPELLANT
                              Through:       Ms. Mini Pushkarna, Advocate.

                                          VERSUS

       SANJAY KUMAR                                          ...RESPONDENT

                              Through:       Mr. Anuj Aggarwal, Advocate.

LPA No.937 OF 2011

       MCD                                                  . . . APPELLANT
                              Through:       Ms. Mini Pushkarna, Advocate.

                                          VERSUS

       SANJEEV KUMAR                                         ...RESPONDENT


                               Through:       Mr. Anuj Aggarwal, Advocate.

LPA No.938 OF 2011

       MCD                                                  . . . APPELLANT
                              Through:       Ms. Mini Pushkarna, Advocate.

                                          VERSUS

       RAMESH KUMAR                                         ...RESPONDENT

                              Through:       Mr. Anuj Aggarwal, Advocate.

CORAM :-

       HON'BLE THE ACTING CHIEF JUSTICE
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


A.K. SIKRI, ACTING CHIEF JUSTICE

1. The respondents in all these appeals were working on casual basis in

different capacities with MCD. They were all engaged on daily wages.

After some time, services of the two respondents were regularized as well.

They worked for few years in this capacity. However, thereafter, their

services were terminated on different dates sometime in January, 2007 and

February, 2007. The main reason for termination of their services, as per

the MCD was that they had entered the services on the basis of forged

appointment letters and were never recruited after any selection process

or by any competent authority even on casual basis. We may mention at

this stage that there were large scale of appointments with the MCD with

forged/bogus appointments letters and this racket was unearthed. In fact,

as would be noted in detail hereinafter, a Public Interest Litigation was

also filed in this Court wherein the Court had given directions to the MCD

to investigate into the matter and take departmental as well as criminal

action not only qua those officers who are responsible for such a scam but

also dismiss the services of those persons who were found to have entered

on the basis of fabricated appointment letters. The MCD did this exercise

and found that many such persons secured employment fraudulently on the

basis forged/fabricated documents. There services were also dispensed

with. These included the respondents herein as it was alleged that these

persons also submitted forged appointment letter and other documents to

enter the service. They raised industrial dispute under Section 10 (4A) of

the Industrial Disputes Act, 1947 (hereinafter referred to as „the ID Act‟).

Initially one single statement of claim was filed by all the four persons.

The MCD questioned the maintainability of such a dispute as according to

the MCD, only individual dispute could be raised as per the provisions of

Section 10 (4A) of the ID Act. The same was accordingly dismissed by

the Labour Court and four individual cases were filed. By the time, fresh

applications under Section 10 (4A) of the ID Act was filed, the period of

one year from the date of their termination had passed by. The MCD, in

these circumstances, took the objection that the claims were time barred as

they were filed beyond limitation period of one year. It was also submitted

on merits that they have secured appointment on the basis of fake letters

and, therefore, not entitled to any relief. The Labour Court passed the

awards in all the four cases holding that the claim was barred by time and,

therefore, the workmen were not entitled to any relief. Challenging that

order, these workmen preferred separate writ petitions (four in number).

The learned Single Judge has allowed these writ petitions vide common

judgment dated 27.7.2011, holding that the claims were not time barred

and further that since the MCD did not lead any evidence showing that

these workmen had produced fabricated appointment letters and, there

services were terminated without giving any show cause notice and

affording any opportunity to them to defend their cases and their

termination was bad in law. The learned Single Judge has, accordingly,

allowed the writ petitions, setting aside the order of the Labour Court and

directing reinstatement of these workmen without back wages. At the

same time, the opportunity is granted to the MCD to proceed against these

workman in accordance with law after issuing them show cause notice and

giving them chance to be heard. Challenging this order of the learned

Single Judge, present Intra-court appeal is preferred by the MCD, under

Clause 10 of the Letters Patents.

2. Before we proceed to consider the twin aspects which arose in these

appeals namely question of limitation in preferring the claim, under

Section 10 (4A) of the ID Act and validity of termination, we would state

the facts of each case, in brief, as noted by the learned Single Judge as

well.

3. Smt. Pushpa Rani, respondent in LPA 935/2011 was appointed as a

Nursery Aaya in the MCD on daily wage basis with effect from 1 st July,

1998. On similar grounds her services were terminated on 5 th August,

2000. She was re-engaged on 6th February, 2002 and her services were

again terminated with effect from 3rd February, 2007.

4. Shri Ramesh Kumar, respondent in LPA 938/2011 was appointed as

a School Attendant in the Municipal Corporation of Delhi with effect from

1st May, 1998 on daily wage basis. His services were regularized with

effect from 1st April, 2005 although it is the case of the petitioner that he

was entitled for regularization from the date of his initial appointment. It

is stated that his services were illegally terminated with effect from 25 th

January, 2007 on the basis of allegations that he had obtained employment

fraudulently on the basis of forged and fabricated documents.

5. Mr. Sanjay Kumar, the respondent in LPA 936/2011 was appointed

as a chowkidar in the MCD with effect from 11th January, 1999. His

services were regularized with effect from 14th February, 2002. On the

same ground his services were terminated on 31st January, 2007.

6. Mr. Sanjeev Kumar, respondent in LPA 937/2011 was appointed as

a school attendant in the MCD with effect from 29th May, 1998. On

similar grounds, his services were terminated on 5th August, 2000. He was

re-engaged on 5th February, 2002 and his services were again terminated

with effect from 2nd February, 2007.

Re: Limitation

7. The services of the four workmen were terminated w.e.f. 25.1.2007,

31.1.2007, 3.2.2007 and 2.2.2007. They filed single statement of claim

under Section 10(4A) of the ID Act on 1.8.2007. This was dismissed as

not maintainable vide order dated 22.10.2008 holding that under this

provision only an individual workman can raise an industrial dispute.

Thereafter, they filed individual claim on 8.12.2008 in which the Labour

Court rendered the award holding the claim to be time barred. It is clear

from the above that the Labour Court has taken the date of termination and

filing of the individual IDs. Definitely, these are filed beyond the period

of one year. However submission of the respondent workman was that

they had approached the Labour Court within one year by filing joint claim

under Section 10 (4A) of the ID Act and only mistake was that joint claim

was not maintainable. Therefore, when the second claim was filed , the

period when the joint claim was pending should be excluded for reckoning

the limitation which is accepted by the learned Single Judge. We are of the

view that the approach of the learned Single Judge is perfectly right.

8. Section 14 of the Limitation Act stipulates as under:

"14. Exclusion of time of proceeding bonafide in court without jurisdiction.

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908 ), the provisions of sub- section (1) shall apply in relation to a fresh suit instituted

on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.- For the purposes of this section,-

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."

9. No doubt, Limitation Act has no application to the proceedings

under the ID Act, however, the provision is based on public policy and the

principle laid down therein is to ensure that a person who was pursuing a

wrong remedy but in a bona fide manner should not be made to suffer on

that account. Therefore, when we have to examine the issue the limitation

of one year as prescribed under Section 10 (4A) of the ID Act, we are of

the opinion that the aforesaid principle enshrined in the aforesaid provision

should be made applicable otherwise it would lead not only to an absurd

result but manifest injustice to the bona fide litigants. We thus hold that

the claim of the respondent was within time.

Re: On Merits:

10. The question as to whether the respondents/workmen had joined the

services on the basis of forged document was a disputed question of fact.

We may record that some of the workmen, after termination of their

service had file the writ petitions. These writ petitions were dismissed on

this very ground namely whether they had joined the services on the basis

of forged documents or not was a disputed question of fact. No doubt,

inquiry regarding appointment on daily wages was conducted by the

Committee constituted by the MCD. It is also a matter of record that there

were 100 employees who had joined the services on the basis of forged

documents, however, these fact finding inquiries were conducted without

involving the respondents/workmen. In the mean time some of these

workmen had even been regularized. In these circumstances, the minimum

requirement of principle of natural justice was to issue them show cause

notice and give them hearing before taking action. Even if that was not

done when these respondents/workmen raised industrial dispute, it became

incumbent upon the MCD to lead evidence before the Labour Court

producing all those documents on the basis of which the MCD was

alleging that the respondents had secured the appointment on the basis of

forged documents. However, we are astonished to find that no evidence

was led by the MCD before the Labour Court. The workmen had

examined themselves and had even produced certain documents which

were exhibited. Thereafter, MCD was given opportunity to lead evidence.

For reasons unknown to this Court, which baffles us, the authorized

representative of the MCD made a statement that he did not want to lead

evidence on behalf of the MCD. Plethora of document are now produced

with an attempt to make out a case of forged documents. What precluded

the MCD to lead evidence of this nature before the Labour Court, is not

understood. When these documents were not placed record before the

Labour Court and no evidence was led, it is impermissible to look into

these documents in the writ petition or in the present LPAs.

11. We further find that the Labour Court has returned the findings

against the workmen on the ground that it was an "admitted fact" and need

no further deliberations. The entire discussion on this aspect is as

follows:-

"Whether the workman has joined the services of the management on 01.7.1998 and in which department?

Keeping in view the documentary evidence my inference is that the issue be decided against the workman on following grounds:-

(i) It is stated by the workman in the statement of claim as well as in the evidence by way of affidavit that he joined the management on 01.7.98. This fact is admitted by the management that the workman joined the management on 01.07.98.

However, he joined on the basis of forged and fabricated documents. So far as the fact is concerned, it is admitted fact and needs no further deliberations. Hence the workman joined the services on 01.07.98 with the averments of management that on the basis of forge and fabricated documents.

12. There is nothing to state as to whether the workman had admitted

this fact. This was the statement of the management MCD and MCD as

noticed above, has not led any evidence. It would become an admitted fact

only if the workman had also accepted the same. However, that is not the

correct position on record.

13. We have gone through the statement of claims filed by these

workmen. Apart from stating that their services were terminated illegally

and unjustified, without any notice or payment of compensation and in

violation of Section 25-GF, G and H of the ID Act, it was specifically

pleaded that they were innocent and did not commit any misconduct and in

any case no memo or chargesheet was served upon them or disciplinary

inquiry conducted against them. In the reply, the management has taken