fx IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: December 05, 2008 Date ofdecision: 19^*^December,2008 W.P.fC) No. 763 of 2008 & C.M. No.l484 of 2008 DULARJ DEVI Petitioner Through : Mr. R.K. Sharma, Advocate. versus MUNICIPAL CORPORATION OF DELHI Respondent Through Mr. Amit K. Paul, Advocate. ^ ' WITH V 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 ThoroughMr. 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 allow^edto see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in W.P.(C)Nos. 763 of 2008,3153 of2008 &3156 of2008 Page 1 of10 Signed By:RAM DATT Signing Date:04.07.2024 15:32 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified V ' I Digest? 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 19"^ 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 reliefinrelationto an identicalorderdated 19^ September2006 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 23''' 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 W.P.(C)Nos. 763 of 2008, 3153 of 2008 &3156 of2008 Page 2 of 10 f 'V -V appointed. In fact each of the writ petitions is more or less similarly worded. In eachofthem it is statedthaton 6'^ February/8^*^ March2004 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 6^^ February2004 (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 8'*^ March 2004 describeshim as Daily Wager Ward Boy [UnderPosting 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^^ 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 6*'' February/8^'' 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, W.P.(C)Nos. 763 of2008, 3153 of2008 &3156 of2008 Page 3 of 10 r Shahdara,they were suddenly asked by the MCD, by identicallyworded lettersdated 19'^ September2006, to produceany documentor record as proof of their employment in the MCD prior to their posting at the LeprosyHome, Shahdara. Each of them repliedon 21^^ September2006 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 24'^ January 2008 the other two Petitionersfiled their respectivewrit petitionson ll'^ April 2008. It is not indicatedin 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 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 W.P.(C) Nos. 763 of2008, 3153 of2008 & 3156 of2008 Page 4 of 10 r 4 ( ^ noticewas issuedon 5^*^ April 2006 by the MCD askingeach ofthe daily wagers to produce details of their previous employment. On 12^^ 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 19^'' September2006 each of the Petitionerswas 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 documentsan Office Order No. ADC(H)/2006/3970dated 1'^ 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 documentsare hereby terminated." On the same date, i.e. 1^^ May 2006 another Office Order No. ADC(H)/2006/3972was issued in respect of 47 others. The second Office Order stated that the said 47 employeeswere suspected to have been engaged in getting employment on the basis of fraudulent/fakedocumentsand they were directedto produce the original documents/recordson or before 8^'' May 2006 failingwhichtheir services would stand terminated. II. Both notices were challengedby way of Writ Petition (C) Nos. 8379- 99 of 2006, 82685 of 2006 and9576 of 2006 in this Court. By ajudgment W.P.(C)Nos. 763of2008, 3153of2008 &3156of2008 Page 5 of10 * dated 9^^ July 2007 a learned Single Judge held the terminationof 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 w- 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 appropriateto direct reinstatementof the dismissedemployees 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 consequentialbenefits including back wages. 17 W.P.(C)Nos. 763 of2008, 3153 of2008 &3156 of2008 Page 6 of 10 f Nr i V \i 12. The aforementionedjudgmentof the learned Single Judge dated 9^*^ 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 judgmentdated 9^"^ 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 judgmentdated 9^*" July 2007. There it was argued that the Notice No. ADC(H)/2006/3972dated 1'' 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 {MunicipalCorporationofDelhi v. AmitKumar) by an orderdated 22"'' 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 coveredby the impugned order of the learned Single Judge cannot be treated any differentlyfrom other Petitionerscoveredby that judgment. 13. Reverting to the present case it is clear from the facts narrated hereinabovethat they stand on a differentfooting. In the first place, a separate show cause notice was issued to each of the petitioners by the MCD afterthe judgmentdated 9"" July 2007 passedby the learnedSingle 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 opportunityto show cause. Secondly, the wording of the notice is also different from the wording of either the Office Order W.P.(C}Nos. 763 of 2008, 3153 of 2008 &3156 of2008 Page 7 of 10 •-Y No.3970 dated May 2006 which covered 127 persons or the Office OrderNo. 3972of 1®^ SeptemberMaywhichcovered47 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 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 6^^ 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 W.P.IQNos. 763of2008, 3153of2008 &3156of2008 Page 8 of10 ys> 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. 5. At the request of learned counsel for the petitioners,adjournedto 24"^ October,2008. 6. It is made clear that there will not he further adjournment in the matter." 4 ^ 16. Thereafterthe matterwas furtherheardon 24^*^ October,7^^ November and 5'*^ December2008. Atnone ofthesehearingswas the counselfor the Petitioners able to produce any document to show that any of the petitioners was employed with the MCD prior to their being posted at Leprosy Home, Tahir Pur, Shahdara. The orders that they have produced . with the writ petition are premised on the basis that they were already employed with the MCD prior to such posting. Since this factual basis itself has not been substantiated by the Petitioners, they cannot be granted any relief as prayed for. The question of applying the procedure under Section 95 (2) DMC Act before removing them from service therefore cannot arise. In any event each of them was given a separate show cause W.P.(C)Nos. 763 of2008, 3153 of2008 & 3156 of2008 Page 9 of 10 al notice in reply to which they were unable to show that they were ever appointed in the MCD. 17. In the above circumstances, the inevitable conclusion is that none of the Petitioners was employed with the MCD prior to their posting at the Leprosy Home, Tahirpur, Shahdara. They appear to have managed to obtain orders posting them at the Leprosy Home, Tahir Pur on the basis ^ thattheywere alreadyemployedin the MCD, when in facttheywere not. The MCD was therefore fully justified in not permitting the petitioners to continuein serviceat the LeprosyHomebeyond 19"^ September2006. # 18. There is no merit in any of these writ petitions and they are dismissed as such. The applications also stand dismissed. S. MURALIDHAR, J. 19'"DECEMBER, 2008 dn W.P.(C)Nos. 763 of2008, 3153 of2008 &3156 of 2008 Page 10 of 10