writ petition (c) nos.8379-99/2006, in the matter of ... chand vs. hari om.pdf · mcd on the basis...
TRANSCRIPT
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : SERVICE MATTER
Writ Petition (C) Nos.8379-99/2006,
8268-85/2006 and 9576/2006
Reserved on : 25.05.2007
Date of decision : 09.07.2007
IN THE MATTER OF :
SATISH CHAND GUPTA & ORS. ..... Petitioners
in WP(C) No.8379-99/06
Through : Mr. N.Prabhakar, Advocate
A N D
HARI OM & & ORS. ..... Petitioners
in WP(C) No.8268-85/06
A N D
AMIT KUMAR ..... Petitioner
in WP(C) No.9576/06
Through : Mr. D.K.Sharma, Advocate
versus
M.C.D.& ORS. ..... Respondents
Through : Mr.O.P.Saxena, Advocate
with Mr.Pradeep Kumar, Inspector,
Economic Offences Wing.
HIMA KOHLI, J. :
All these writ petitions are taken up for final hearing and disposal by
passing a common judgment and order, as counsels for the parties have stated that
the facts of the cases are the same and the issues involved are also common. For the
sake of convenience, facts of WP(C) No.8379-99/2006 are taken note of.
2. The present writ petitions are filed by the petitioners for quashing the
order dated 1st May, 2006 passed by the Commissioner, MCD whereby the services
of the petitioners were terminated on the ground that 127 employees of the
respondent, including the petitioners herein had managed to get appointment in the
MCD on the basis of fraudulent and fake documents. Thus their names were directed
to be struck off from the rolls of the MCD. The petitioners are not only seeking
quashing of the aforesaid order, but also the relief of restoration of their services.
3. The case of the petitioners is that they were Daily Wagers working in
various hospitals and dispensaries in the Health Department of the MCD; that
Resolution No.273 dated 27th June, 1988 was adopted by the respondent proposing a
policy of regularization of the Daily Wagers working in the MCD and that the
services of the petitioners were regularized by the Administrative Officer (Health),
MCD with the prior approval of the Additional Commissioner (Health), MCD and on
being regularized in the year 2000, they were put on probation for a period of two
years. Upon successful completion of the period of probation, the services of the
petitioners were confirmed in the various departments and in most of the cases,
confirmation letters were also issued in favour of the petitioners. It is stated in the
writ petition that suddenly, without issuing any notice to show cause or affording an
opportunity to the petitioners to defend themselves, the impugned order dated 1st
May, 2006 was passed by the respondent terminating the services of the petitioners
who are permanent employees of the respondent, thus violating the principles of
natural justice.
4. The aforesaid action of the respondent is assailed by the petitioners on
the ground that the same is subversive of Articles 14 and 16 of the Constitution of
India and contrary to Regulation 8 read with Regulation 8-A of the Delhi Municipal
Corporation Service (Control & Appeal) Regulations, 1959 (hereinafter referred to as
`the Regulations') which have to be mandatorily resorted to before dispensing with
the services of confirmed employees. It was contended by the counsel for the
petitioners that in the absence of any enquiry conducted by the respondent, the
impugned order is bad. It was further submitted that the contention of the respondent
that the list of 115 employees regularized pursuant to the Circular dated 9th May,
2001 issued by the Chief Labour Welfare Officer regularizing the services of the
petitioners with effect from 1st April, 2000 is false and fake, is belied in the light of
copies of regularization letters issued to the said petitioners which have been placed
on record. It was further contended that while a few of the petitioners were
confirmed by the appointing authority, remaining are deemed to be confirmed, the
period of probation of two years having since expired.
5. Counsel for the petitioner relied on a judgment of the Supreme Court in
the case of Satyavir Singh Vs. Union of India and others reported as AIR 1986 SC
555, to state that the source of the power to dispense with the enquiry is derived from
and governed by the second proviso of the clause 2 of the Article 311 of the
Constitution of India. He placed reliance on a judgment of the Supreme Court in the
case of High Court of M.P.Vs. Satya Narayan Jhavar reported as 2001 (3) SLR 645
to state that the period of probation could not have exceeded two years. He also
placed reliance on a judgment of the Supreme Court in the case of Director General
Of Police Vs. Mrityunjoy Sarkar reported as 1996 (2) SCT 606 to contend that in
the absence of notice given to the petitioners before arriving at a finding leading to
termination, is bad. He also cited a judgment of the Supreme Court in the case of
Basudeo Tiwary Vs. Sido Kanhu University and others reported as AIR 1998 SC
3261 and a judgment rendered in the case of State of Maharashtra and Ors.Vs.
Sanjay K.Nimje, reported as 2007 (2) JT 347 in support of the plea that principles of
natural justice ought to be complied with before arriving at a finding of fact that the
documents were fake. In support of his contention that in the absence of any
allegation of there existing an atmosphere of violence, insubordination or
intimidation of witnesses which rendered the conduct of enquiry reasonably
impracticable, the respondent was bound to hold an enquiry in accordance with law
and the provisions of Article 311 Clause 2 second proviso were attracted to the
present case, he placed reliance on the judgments of the Supreme Court in the case of
Union of India and another Vs. Tulsiram Patel, reported as AIR 1985 SC 1416 and
Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corpn.Ltd., Haldia and others
reported as (2005) 7 SCC 764.
6. Counsel for the petitioner also cited a judgment of the Supreme Court in
the case of Union of India Vs. Madhu Sudan Prasad reported as (2004) 1 SCC 43 to
state that since no notice prior to termination was given by the respondent, the
petitioners are entitled to reinstatement with full back wages and continuity of
service.
7. Per contra, counsel for the respondent submitted that the petitioners got
themselves appointed in the MCD in collusion and connivance with some officials of
the MCD by submitting fake and fraudulent documents. It was categorically denied
that the MCD appointed the petitioners. The aforesaid fraud was stated to have been
unearthed by the Audit Department of the MCD as also the Police Department. It
was found that certain employees, including the petitioners herein started working for
the MCD only after fake and fraudulent regularization letters purportedly issued
under the signatures of the Administrative Officer (Health), MCD were obtained by
them in respect of their employment. It was contended that the office orders placed
on the record by the petitioners in respect of their employment are forged, fabricated
and do not exist in the records of the MCD and that the computerized list of persons
filed by the petitioners and relied upon is also not genuine as in the year 2002, the
work in the Department had not been computerized. Further, that the Diary despatch
numbers mentioned by the petitioners with regard to the purported orders of
appointments stated to have been issued by the Assistant Commissioner (Health) do
not relate to regularization of the petitioners, but to regularization of Daily wage
workers working in the Health Department (K.B.Z) with effect from 1st April, 1990.
It has also been stated on affidavit that the then Administrative Officers (Health) and
the Municipal Health Officer of MCD when being confronted with the documents in
question, admitted their signatures on the last page of the documents, but denied the
contents of the documents as incorrect.
8. It was stated on behalf of the respondent that the Chief Auditor of the
MCD addressed a letter dated 13th March, 2007 to the Commissioner, MCD giving
all the details, including the verification done by the department which revealed that
127 persons never worked as daily wage employees in any of the
dispensaries/departments of the MCD and thus there was no question of their
services being regularized with effect from 1st April, 2000. They were never given
any appointment letters of daily wagers and as per the attendance records of various
dispensaries/hospitals of the MCD, they never worked prior to the issuance of the
regularization letters. Thus as the initial appointment of such 127 employees,
including the petitioners was itself fraudulent and void abinitio, the present petitions
are liable to be rejected on this ground alone. In support of his arguments, counsel
for the respondent relied upon the following judgments:-
(i) Inderpreet Singh Kahlon Versus State of Punjab AIR 2006 SC 2571.
(ii) Secretary, State of Karnataka Versus Uma Devi and Ors. AIR 2006 SC 1806.
(iii) State of Manipur Versus Token Singh JT 2007 (3) SC 606.
9. Counsel for the respondent further submitted that simultaneously, the
DCP (Central District), New Delhi vide letter dated 12th April, 2006, addressed to
the Additional Commissioner(Health & Education), MCD informed him about illegal
appointments of 45 persons made in the Health Department by one Mr. Jaswant
Singh and his associate Mr. R.C.Sharma, UDC at the Hqrs. of the MCD and about
registration of an FIR No.52/2006 dated 6th February, 2006 at PS IP Estate. He
stated that as soon as the aforesaid fraud was detected, the matter was taken up at the
highest level and the competent authority, namely, the Commissioner, MCD took
into consideration the note prepared by the Additional Commissioner (H&E), MCD
and arrived at a conclusion that in the aforesaid circumstances where the initial
appointment of 127 persons, including the petitioners herein mentioned in the
impugned order was itself fraudulent and void abinitio, there was no need to conduct
any formal enquiry, and accordingly, he took a decision to immediately terminate the
services of the aforesaid 127 employees and dispense with the requirement of
affording an opportunity of hearing or conducting an enquiry by invoking Regulation
9(ii) of the Regulations read with Section 95(2)(b) and (3) of the Delhi Municipal
Corporation Act, 1957 (for short `the Act'). In the course of addressing arguments,
counsel for the respondent produced the original records containing the Audit Report
of the Chief Auditor of MCD as also the notings in the file containing the decision
dated 28th April, 2006 taken by the Commissioner, MCD ordering dismissal of 127
persons, for the perusal of the court.
10. Counsel for the respondent submitted that during the pendency of the
present writ petitions, pursuant to the FIR lodged by the respondent, the Economic
Offences Wing of the Delhi Police is investigating the entire case and on 2nd August,
2006, the respondent has supplied to the Crime Branch of the Delhi Police, a list of
173 persons whose appointments were found to be suspected. It was contended that
out of 173 cases, 127 cases including those of the petitioners herein were clear cut
cases of fraudulent appointment as detected by the Chief Auditor, MCD and the
remaining were suspected cases of fraudulent appointment. However, all the said
cases have been referred to and are still under investigation by the Economic
Offences Wing of the Delhi Police.
11. It was also argued by the counsel for the respondent that the authority
competent to issue the orders of appointment in the present case was the Additional
Commissioner (H&E), MCD after obtaining necessary approvals from the Standing
Committee, MCD as also the Commissioner, MCD and not the Administrative
Officer (Health), MCD as per the documents filed by the petitioners along with the
writ petition. In any case, on verification, it was confirmed from the concerned
Departments that there were no records of the issuance of such letters by the
Administrative Officer (Health), MCD. It was further submitted that in a recent
incident which took place due to fire in the record room of the Health Department,
many of the relevant records were destroyed and it was suspected that the same was
the handiwork of such of the employees of the respondent who had colluded and
connived with the 127 employees whose services were terminated, including the
petitioners herein. Thus, it was contended that the petitioners were beneficiaries of a
fraud played on the respondent and were hand in glove with certain employees of the
respondent in perpetrating such a fraud. Counsel for the respondent informed the
court that necessary action shall also be taken against its delinquent employees and
adequate punishment would be imposed on them and the amount disbursed to the
fraudulently appointed employees, who illegally obtained salaries from the
respondent, shall be recovered in separate proceedings.
12. In his rejoinder, counsel for the petitioner submitted that reliance placed
by the respondent on the Chief Auditor's report cannot be treated as irrebuttable
evidence to terminate the services of the petitioners. In reply to the contention of the
respondent that the documents relied upon by the petitioners were fake and
fabricated, it was submitted that the respondent were unable to point out as to which
of the particular documents relied on by the petitioners, were fake and fabricated and
in view of the fact that the respondent admitted pendency of the enquiry proceedings,
any decision to terminate the services of the petitioners in the meantime was not
permissible and contrary to law. Lastly, it was submitted that the respondent had
made the petitioners escape goats without taking any action against its own corrupt
officials.
13. I have heard the counsels for the parties and perused the original records
produced by the respondent. I have also considered their submissions in the light of
the judgments relied on by the counsel for the petitioners.
14. The main plank of the argument of the counsel for the petitioners is that
failure to afford an opportunity of hearing to the petitioners by issuing a notice to
show cause before passing the impugned order has violated their fundamental rights
and for the said reason, the impugned order terminating the services of the petitioners
is liable to be quashed. Before proceeding with the matter, it is relevant to discuss
the relevant provisions of law relied on by both the parties. Counsel for the
petitioners has relied on the Regulations 8 and 8-A of the Regulations which lay
down procedure for imposing major penalty and mandate as below:
“Regulation 8. Procedure for imposing major penalties- (i) Subject to the provisions
of sub-Section (2) of Section 95, no order imposing a municipal officer or other
municipal employee, any of the penalties specified in clauses (iv) (vii) of regulation 6
shall be passed except after an enquiry is held, as for as may be, in the manner
thereafter provided.
(2) The Disciplinary Authority shall frame definite charges on the basis of the
allegations on which the inquiry is proposed to be held. Such charges, together with
a statement of the allegations on which they are based, shall be communicated in
writing to the municipal officer or other municipal employee, and he shall be
required to submit within such time as may be specified by the Disciplinary
Authority, a written statement of his defence and also to state whether he desires to
be heard in person.
Regulation 8-(A)-(1) No order on a municipal officer or other municipal employee
any of the penalties specified in clauses (i) to (iii) of regulation 6 shall be made
except after:
(a) informing the municipal officer or the municipal employee in writing of the
action proposed to be taken and of the imputations forming the basis, thereof and
giving him a reasonable opportunity of showing cause against the proposed action.
(b) taking the representations, if any submitted by the municipal officer or the
municipal employee under clause (a) and after holding such enquiry as may be
considered necessary in the presence of that municipal officer or employee after
notice to him or in his absence if he fails to attend.
(c)recording a finding on each imputation or negligence, misconduct or
misbehaving.”
15. On the other hand, counsel for the respondent has relied on Regulation 9
which prescribes a special procedure in certain cases, read with Section 95(2)(b) of
the Act which read as under:
“Regulation 9. Special Procedure in certain cases- Notwithstanding anything
contained in regulation 8:
(i) where a municipal officer of other municipal employee is removed or dismissed
on the ground of conduct which had led to his conviction on criminal charge; or
(ii) where the authority empowered to remove or dismiss an officer or other
employee is satisfied for reasons to be recorded in writing that it is not reasonably
practicable to follow the procedure in these regulations; the Disciplinary Authority
may consider the circumstances of the case and pass such orders thereon as it deems
fit.”
“Section 95. Punishment for municipal officers and other employees.-(1) Every
municipal officer or other municipal employee shall be liable to have his increments
or promotion withheld or to be censured, reduced in rank, compulsorily retired,
removed or dismissed for any breach of any departmental regulations or of discipline
or for carelessness, unfitness, neglect of duty or other misconduct by such authority
as may be prescribed by regulations:
Provided that no such officer or other employee as aforesaid shall be reduced in rank,
compulsorily retired, removed or dismissed by any authority subordinate to that by
which he was appointed:
Provided further that the Corporation may by regulations provide that municipal
employees belonging to such classes or categories as may be specified in the
regulations shall be liable also to be fined by such authority as may be specified
therein.
(2) No such officer or other employee shall be punished under sub-section (1) unless
he has been given a reasonable opportunity of showing cause against the action
proposed to be taken in regard to him:
Provided that this sub-section shall not apply-
(a) where an officer or other employee is removed or dismissed on the ground of
conduct which had led to his conviction on a criminal charge; or
(b) where the authority empowered to remove or dismiss such officer or other
employee, is 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.”
(3) If any question arises whether it is reasonably practicable to give to any officer or
other employee an opportunity of showing cause under sub-section (2), the decision
thereon of the authority empowered to remove or dismiss such officer or other
employee shall be final.
(4) An officer or other employee upon whom a punishment has been inflicted under
this section may appeal to such officer or authority as may be prescribed by
regulations.”
16. It emerges from a perusal of the aforesaid provisions that Regulation 8
of the Regulations is subject to the provision of sub-section (2) of Section 95 of the
Act. In other words, where the respondent authority is satisfied for some reason to
be recorded that it is not reasonably practicable to give the employee an opportunity
of showing cause, or where the employee is removed or dismissed on the ground of
conduct which led to his conviction on a criminal charge, the procedure of imposing
any penalty on such an employee as specified in Regulation 6 by holding an enquiry
can be dispensed with. Regulation 9 of the Regulations goes on to specify the
procedure in certain cases and starts with a non obstante clause. Thus it is manifest
that the said Regulation 9 comes into play in the facts and circumstances specified
therein, notwithstanding anything contained in Regulation 8. Relying on the said
Regulation 9, it was submitted by the counsel for the respondent that the present case
was of a nature where the competent authority, namely, Commissioner, MCD was
satisfied that it was not reasonably practicable to follow the procedures as laid down
in the Regulations. The power to proceed under Regulation 9 emanates from
Section 95 of the Act and in fact the terminology used in Regulation 9(ii) of the
Regulations is quite analogous to the second proviso to sub-clause (2) of Section 95
of the Act. The terminology used in Section 95 of the Act in turn is analogous to the
second proviso of Article 311(2) of the Constitution of India.
17. Taking the matter further, it is relevant to examine the decision of the
competent authority in passing the impugned order and testing the same on the
touchstone of the stipulations contained in Section 95 (2) (b) of the Act read with
Regulation 9 of the Regulations. In other words, this court must satisfy itself on the
basis of the facts and circumstances of the case coupled with the perusal of the
relevant records as to whether some reasons were recorded by the Commissioner,
MCD in the present case, to express his satisfaction for arriving at a conclusion that it
was not reasonably practicable to afford an opportunity of showing cause to the
petitioners herein before passing the impugned order.
18. A perusal of the relevant file produced by the MCD shows that a note
dated 27th April, 2006 was prepared by the Additional Commissioner(H&E), MCD
which formed the basis of the conclusion arrived by the Commissioner, MCD. The
said note refers to an earlier note dated 25.4.2006, prepared by the Administrative
Officer(Health), MCD on the basis of a letter dated 13th March, 2006 addressed by
the Chief Auditor to the Commissioner, MCD regarding regularization of certain
daily wage employees with effect from 1st April, 2000 on the basis of fake
documents pertaining to Shahdra (North) Zone. It was noted that a review of similar
cases of regularization of daily wage employees in other zones was also got done by
the audit department which stated that over a hundred of similar cases of
regularization with effect from 1st April, 2000 to 1st April, 2004 on the basis of fake
documents were noticed in different zones of MCD and the details thereof were
received from the office of the Chief Auditor. The said note went on to record that
these employees had not worked in their hospital/dispensary/centre on daily wages
during the relevant period and out of 127 cases, 9 employees had drawn arrears to the
tune of Rs.8.40 lakh from the retrospective date of regularization to the date of
issuance of order of regularization. The said arrears were prepared on the basis of
due and drawn statement prepared by the respective Medical Officer Incharge of the
concerned hospital/dispensary/centre and duly verified by the Accounts Branch.
However, on an enquiry, it transpired that the due and drawn statement was neither
prepared by the Medical Officer Incharge, nor verified by the respective Accounts
Branch and that the arrears were drawn by the employees on the basis of fake
documents.
19. In the subsequent note of the Additional Commissioner(H&E), MCD
dated 27th April, 2006, reference was also made to the letter received from the office
of the DCP (Central District) dated 12th April, 2006 enclosing a copy of FIR and a
list of 45 illegally appointed employees in the Health Department. The FIR was
lodged on the basis of a complaint by one Mr.Krishan Pal Singh against Mr.Ramesh
Chand Sharma (UDC working at the Hqrs. of MCD) and one Mr.Bharat who
promised him to arrange a job for his two relatives in the Health Department of the
MCD on payment of Rs.1,60,000/- for each person for the said purpose. It was
alleged by the complainant that Rs.2,00,000/- had already been paid but they were
not given the job and he was cheated by the accused. He also stated that both the
accused had arranged jobs for other persons previously also in the Health Department
of the MCD with the help of forged certificates and in this behalf, he submitted a list
of 44 such persons. The aforesaid list was forwarded by the police department to the
office of Chief Vigilance Office, MCD with a request to provide a list of all class-IV
employees who had been recruited by MCD since 1994 onwards. The matter was
put up for consideration by the Additional Commissioner (H&E), MCD for the
Commissioner, MCD. The note of the Additional Commissioner (H&E), MCD was
dated 27th April, 2006 which was duly approved by competent authority for
terminating the services of 127 persons, including the petitioners herein, while
dispensing with the requirement to give them an opportunity of showing cause or
holding any enquiry, is very relevant and is reproduced hereinbelow:
“The note above may kindly be perused. It is clear from above that a large number
of fraudulent appointments has taken place in Health Department based on forged
documents. As if know (sic), there are following cases:
1) 127 clear cases of fake appointments detected by Audit Department.
2) 8 suspected cases of fake appointments where documents are not available.
3) 45 cases of fake appointments reported by a complainant in police FIR.
As a first step, we may straightway dismiss and remove from Rolls 127 persons who
have been fraudulently appointed. No further inquiry is needed in their cases since
the Audit Department has already detected fraud and forgery. Article 95 (2) (b) of
MCD Act permits Commissioner to dismiss employees after dispensing inquiry in
exceptional cases. This is a fit case for such exceptional treatment. Further, these
people being fake employees do not get any right or protection under MCD Act.
As regards 8 suspected cases, we may issue separate order asking them to produce
their documents if any within 7 days failing which they will stand dismissed.
The third category of 45 cases named in police station may also be asked to produce
proof of their authenticity within a period of 7 days failing which they will stand
terminated.
Sh.R.C.Sharma, UDC who appears to be kingpin in all these appointments is
absconding. Despite call back notice, he has not reported back for duty. It is possible
that the recent fire incident in Health Department in which many records were
destroyed was engineered by him. The private complainant has already filed an FIR
against Shri R.C.Sharma and two others. In my opinion, we should also file a
separate FIR against Sh.R.C.Sharma.
Hon'ble Mayor has discussed this matter with the undersigned and has also of
opinion that the employees engaged on fake documents should be dismissed.
The above proposal for dismissal of 127 persons and conditional dismissal of 53
persons may kindly be approved.
Sd/-
Additional Commissioner(H&E)”
20. In the aforesaid context, letter dated 13th March, 2006 issued by the
Chief Auditor of the MCD is also relevant. It reads as under:
“Kindly refer to my D.O. letter No.MCA/RS/Misc./IV (106)/1530 dated 18.1.2006
wherein four cases of regularisation of daily wage employees w.e.f.1.4.2000 on the
basis of fake documents pertaining to Shahdara (North) Zone were brought to notice
for investigation and review of similar other cases under intimation to this office.
Reply to my d.o. letter is awaited.
In the meantime, a review of similar other cases of regularisation of daily wage
employees in other zones of MCD was also got done by this office which indicated
that in addition to the four cases already brought to notice, 123 more similar cases of
regularisation of daily wage employees w.e.f.1.4.2000/14.2004 on the basis of fake
documents were noticed in different zones as detailed in Annexure `A'. In all these
cases, Medical Officer Incharge of respective hospital/dispensary/centre, in which
these employees were shown working on daily wages prior to their regularisation,
intimated that these employees had not worked in their hospital/dispensary/centre on
daily wages during the relevant period. Further out of 127 cases (123+4), 9
employees (Sl.28,29,45,46,57, 86 & 11 of Annexure `A' and two cases already
pointed out in d.o. letter dated 18.1.2006) had also drawn arrears to the extent of
Rs.8.40 lakh from the retrospective date of regularisation to the date of issue of order
for regularisation. In all these cases arrears were drawn on the basis of due and
drawn statement shown prepared by the respective Medical Officer Incharge of
Hospital/Dispensary/Centre and duly verified by the Accounts Branch. The
respective Medical Officers Incharge have intimated that the due and drawn
statement shown prepared by their office had not been prepared by them. The
respective Accounts Branch have also denied the verification of vouchers shown
made by them. The arrear so drawn by respective employee on the basis of fake
documents needs immediate recovery.
In addition to 123 cases of regularisation on the basis of fake documents, eight
suspected similar other cases ad detailed in Annexure `B' have also noticed in audit.
The authenticity/genuineness of regularisation of these cases could not be verified in
audit due to non production of personal files and service books of these employees.
Personal files and service books of six cases pertaining to Hindu Rao Hospital were
stated to have been seized by Vigilance Department, MCD and in remaining two
cases pertaining to RBTB Hospital, these were stated to have been sent to
Administrative Officer (Health) who also did not produce these files to audit.
The matter being serious one is brought to your kind notice for investigation under
intimation to this office as this case is likely to be incorporated in the ensuing Audit
Report.”
21. Now looking at the facts as culled out from the records, it has to be
examined as to whether in the given circumstances, the respondent was justified in
dispensing with the requirement of affording an opportunity of showing cause to the
petitioners as also of conducting a formal enquiry against them before passing the
impugned order, as contended on behalf of the petitioners.
22. It is no doubt true that where appointments have been made by a
competent authority or at least some steps have been taken in that behalf, the
principles of natural justice are required to be complied with.
23. In ordinary course, in the case of termination of service, necessarily a
notice is required to be issued and an opportunity of hearing given as any such action
of an executive authority which results in civil consequences upon the adversely
affected person can only be passed after following the principles of natural justice, by
affording an opportunity of hearing to him. This is all the more required when the
employer seeks to terminate the services of the employee. For the said reason, it has
been held that in the sphere of public employment, any action taken by an employer
against an employee must be fair, just and reasonable and that conferment of absolute
power to terminate the services of an employee is an anti-thesis to a fair, just and
reasonable treatment.(Refer: DTC Vs. DTC Mazdoor Congress AIR 1991 SC 101).
Thus the principles of audi alteram partem are read into the principles of natural
justice as it is a requirement of Article 14 of the Constitution of India to ensure non-
arbitrariness in the action of the State.
24. Even in cases where there is found to be an omission to impose a
requirement of hearing in a statute under which an impugned action is being taken, it
is implied that the right of affording an opportunity of hearing to a party who is
adversely affected, is not excluded. The courts have read the requirement of
complying with the principles of natural justice in circumstances and situations
where the statute itself is silent in this regard. However, while keeping the above in
mind, a limited area has been left open so as to deal with exceptional cases where the
nature of charge is either so sensitive or where public interest requires that an enquiry
would either not be practicable or would lead to unfair results, thus permitting the
employer to give a go by to the procedure of holding of an enquiry by enabling the
employees to present their side of case in a fair and equitous manner and affording an
opportunity of hearing to them to make depositions in the proceedings, as also cross-
examine witnesses against them, followed by arguments to convince the authority of
their innocence.
25. While dealing with the scope of Article 311 of the Constitution of India
which empowers the competent authority to dispense with an enquiry if it is not
deemed to be reasonably practicable to so hold it, a Constitution Bench of the
Supreme Court in the case of Tulsiram Patel (supra) held as follows:
"Para 130 : The condition precedent for the application of Clause (b) is the
satisfaction of the disciplinary authority that 'it is not reasonably practicable to hold'
the inquiry contemplated by Clause (2) of Article 311. What is pertinent to note is
that the words used are 'not reasonably practicable' and not 'impracticable'.
According to the Oxford English Dictionary 'practicable' means 'Capable of being put
into practice, carried out in action, effected, accomplished, or done; feasible.
'Webster' Third New International Dictionary defines the word 'practicable' inter alia
as meaning 'possible to practice or perform : capable of being put into practice, done
or accomplished: feasible'. Further, the words used are not 'not practicable' but 'not
reasonably practicable'. Webster' Third New International Dictionary defines the
word 'reasonably' as 'in a reasonable manner: to a fairly sufficient extent'. Thus,
whether it was practicable to hold the inquiry or not must be judged in the context of
whether it was reasonably practicable to do so. It is not a total or absolute
impracticability which is required by Clause (b). What is requisite is that the holding
of the inquiry is not practicable in the opinion of a reasonable man taking a
reasonable view of the prevailing situation. It is not possible to enumerate the cases
in which it would not be reasonably practicable to hold the inquiry, but some
instances by way of illustration may, however, be given. It would not reasonably
practicable to hold an inquiry where the government servant, particularly through or
together with his associates, so terrorizes, threatens or intimidates witnesses who are
going to give evidence against him with fear of reprisal as to prevent them from
doing so or where the government servant by himself or together with or through
others threatens, intimidates and terrorizes the officer who is the disciplinary
authority or members of his family so that he is afraid to hold the inquiry or direct it
to be held. It would also not be reasonably practicable to hold the inquiry where an
atmosphere of violence or of general indiscipline and insubordination prevails, and it
is immaterial whether the concerned government servant is or is not a party to
bringing about such an atmosphere. In this connection, we must bear in mind that
numbers coerce and terrify while an individual may not. The reasonable
practicability of holding an inquiry is a matter of assessment to be made by the
disciplinary authority. Such authority is generally on the spot and knows what is
happening. It is because the disciplinary authority is the best judge of this that Clause
(3) of Article 311 makes the decision of the disciplinary authority on this question
final. A disciplinary authority is not expected to dispense with a disciplinary inquiry
lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding
of an inquiry or because the Department's case against the government servant is
weak and must fail. The finality given to the decision of the disciplinary authority by
Article 311 (3) is not binding upon the court so far as its power of judicial review is
concerned and in such a case the court will strike down the order dispensing with the
inquiry as also the order imposing penalty..." (emphasis added).
26. The aforesaid principles as enunciated by the Supreme Court in the case
of Tulsiram Patel (supra) were followed by a number of subsequent judgments where
the Supreme Court scrutinized the contention of the employers regarding the
reasonable impracticability to hold an enquiry and while testing the submissions on
the anvil of the principles as laid down in the case of Tulsiram Ram Patel (supra), set
aside the orders of dismissal wherever and whenever found to be unjustified,
unwarranted or lacking the requirements for dispensing with the principles of natural
justice. In the case of Workmen of Hindustan Steel Ltd. & Anr. v. Hindustan Steel
Ltd. & Ors., reported as 1984 Supp. SCC 554, the Supreme Court, while comparing
the provisions of Standing Order No.32 of the certified Standing Orders of the
Hindustan Steel Limited with proviso (b) appended to Clause (2) of Article 311 of
the Constitution of India, opined as below :
“Para 4: ........Power to dispense with inquiry is conferred for a purpose and to
effectuate the purpose power can be exercised. But power is hedged in with a
condition of setting down reasons in writing why power is exercised. Obviously
therefore the reasons which would permit exercise of power must be such as would
clearly spell out that the inquiry if held would be counter-productive. The duty to
specify by reasons the satisfaction for holding that the inquiry was not reasonably
practicable cannot be dispensed with. The reasons must be germane to the issue and
would be subject to a limited judicial review. Undoubtedly Sub-article (3) of Article
311 provides that the decision of the authority in this behalf is final. This only means
that the court cannot inquire into adequacy or sufficiency of reasons. But if the
reasons ex facie are not germane to the issue namely of dispensing with inquiry the
court in a petition for a writ of certiorari can always examine reasons ex facie and if
they are not germane to the issue record a finding that the prerequisite for exercise of
power having not been satisfied, the exercise of power was bad or without
jurisdiction. If the court is satisfied that the reasons which prompted the concerned
authority to record a finding that it was not reasonably practicable to hold the
inquiry, obviously the satisfaction would be a veneer to dispense with the inquiry and
the court may reject the same. What is obligatory is to specify the reasons for the
satisfaction of the authority that it was not reasonably practicable to hold such an
inquiry. Once the reasons are specified and are certainly subject to limited judicial
review as in a writ for certiorari, the court would examine whether the reasons were
germane to the issue or was merely a cloak, device or a pretence to dispense with the
inquiry and to impose the penalty. Let it not be forgotten what is laid down by a
catena of decisions that where an order casts a stigma or affects livelihood before
making the order, principles of natural justice namely a reasonable opportunity to
present one's case and controvert the adverse evidence must have full play. Thus
even where the Constitution permits dispensing with the inquiry, a safeguard is
introduced that the concerned authority must specify reasons for its decision why it
was not reasonably practicable to hold the inquiry.”(emphasis added)
27. In the case of Basudeo Tiwary (supra) the Supreme Court held as below:
“Para 12: The said provision provides that an appointment could be terminated at any
time without notice if the same had been made contrary to the provisions of the Act,
Statutes, Rules or Regulations or in any irregular or unauthorised manner. The
condition precedent for exercise of this power is that an appointment had been made
contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a
conclusion that an appointment is contrary to the provisions of the Act, Statutes,
Rules or Regulations etc. a finding has to be recorded and unless such a finding is
recorded, the termination cannot be made, but to arrive at such a conclusion
necessarily an enquiry will have to be made as to whether such appointment was
contrary to the provisions of the Act etc. If in a given case such exercise is absent,
the condition precedent stands unfulfilled. To arrive at such a finding necessarily
enquiry will have to be held and in holding such an enquiry the person whose
appointment is under enquiry notice will have to be issued to him. If notice is not
given to him then it is like playing Hamlet without the Prince of Denmark, that is, if
the employee concerned whose rights are affected, is not given notice of such a
proceeding and a conclusion is drawn in his absence, such a conclusion would not be
just, fair or reasonable as noticed by this Court in D.T.C.Mazdoor Sabha's case (AIR
1991 SC 101). In such an event, we have to hold that in the provision there is an
implied requirement of hearing for the purpose of arriving at a conclusion that an
appointment had been made contrary to the Act, Statute, Rule or Regulation etc. and
it is only on such a conclusion being drawn, the services of the person could be
terminated without further notice. That is how S.35(3) in this case will have to be
read.” (emphasis added)
28. In the case of Jaswant Singh Vs. State of Punjab reported as (1991) 1
SCC 362, the Supreme held as below:
“ The decision to dispense with the departmental enquiry cannot, therefore, be rested
solely on the ipse dixit of the concerned authority. When the satisfaction of the
concerned authority is questioned in a court of law, it is incumbent on those who
support the order to show that the satisfaction is based on certain objective facts and
is not the outcome of the whim or caprice of the concerned officer.”
29. In the case of Chief Security Officer v. Singasan Rabi Das reported as
(1991) 1 SCC 729, the Supreme Court held as follows:
"In the present case the only reason given for dispensing with that enquiry was that it
was considered not feasible or desirable to procure witnesses of the security/other
railway employees since this will expose these witnesses and make them ineffective
in the future. It was stated further that if these witnesses were asked to appear at a
confronted enquiry they were likely to suffer personal humiliation and insults and
even their family members might become targets of acts of violence. In our view
these reasons are totally insufficient in law. We fail to understand how if these
witnesses appeared at a confronted enquiry, they are likely to suffer personal
humiliation and insults. These are normal witnesses and they could not be said to be
placed in any delicate or special position in which asking them to appear at a
confronted enquiry would render them subject to any danger to which witnesses are
not normally subjected and hence these grounds constitute no justification for
dispensing with the enquiry. There is total absence of sufficient material or good
grounds for dispensing with the enquiry. In this view it is not necessary for us to
consider whether any fresh opportunity was required to be given before imposing an
order of punishment. In the result the appeal fails and is dismissed."
30. The Supreme Court reiterated the obligation to follow an objective
standard, in dispensing with the requirement of holding an enquiry, and dismissing
an employee, in the case of Indian Railway Construction Co. Ltd. v. Ajay Kumar
reported as (2003) 4 SCC 579 in the following manner:
"Para 11. It is not in dispute that under the Indian Railway Construction Co. Ltd.
(Conduct, Discipline and Appeal) Rules, 1981 (hereinafter referred to as 'the Rules')
the disciplinary authority could dispense with an enquiry. Reasons are to be recorded
in writing and the authority is to be satisfied that it is not reasonably practicable to
hold an enquiry in the manner prescribed in the Rules. Rule 30 reads as follows:
"30. Special procedure in certain cases. Notwithstanding anything contained in Rule
25 or 26 or 27, the disciplinary authority may impose any of the penalties specified in
Rule 23 in any of the following circumstances:
(i) * * *
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in
writing that it is not reasonably practicable to hold an enquiry in the manner provided
in these Rules.
It is also not in dispute that one of the penalties specified in Rule 23 is dismissal from
service.
Para 12. It is fairly well settled that the power to dismiss an employee by dispensing
with an enquiry is not to be exercised so as to circumvent the prescribed rules. The
satisfaction as to whether the facts exist to justify dispensing with enquiry has to be
of the disciplinary authority. Where two views are possible as to whether holding of
an enquiry would have been proper or not, it would not be within the domain of the
court to substitute its view for that of the disciplinary authority as if the court is
sitting as an appellate authority over the disciplinary authority. The contemporaneous
circumstances can be duly taken note of in arriving at a decision whether to dispense
with an enquiry or not. What the High Court was required to do was to see whether
there was any scope for judicial review of the disciplinary authority's order
dispensing with the enquiry. The focus was required to be on the impracticability or
otherwise of holding the enquiry." (emphasis added)
31. In the case of Satyavir Singh (supra), after summarizing the conclusions
reached in Tulsiram Patel's case and considering the case in hand, where the
appellants therein who were employees of the Research and Analysis Wing(RAW),
Cabinet Secretariat, Government of India, took active part in lodging their protest
against the security regulation resented by them, were dismissed from service
without holding an enquiry by applying to them Article 311 (2), second proviso,
clause (b) of the Constitution of India read with Rule 19 of the relevant Rules, the
Supreme Court held as below:
“Para 21: The point which was next urged in support of the contention that the
impugned orders were passed mala fide was that even though co-workers may not
have been available as witnesses, there were policemen and police officers posted
inside and outside the building and they were available to give evidence and that
superior officers were also available to give evidence. The crucial and material
evidence against the Appellants would be that of their co-workers for these co-
workers were directly concerned in and were eye-witnesses to the various incidents.
Where the disciplinary authority feels that crucial, and material evidence will not be
available in an inquiry because the witnesses who could give such evidence are
intimidated and would not come forward and the only evidence which would be
available, namely, in this case, of policemen, police officers and senior officers,
would only be peripheral and cannot relate to all the charges and that, therefore,
leading only such evidence may be assailed in a court of law as being a mere farce of
an inquiry and a deliberate attempt to keep back material witnesses, the disciplinary
authority would be justified in coming to the conclusion that an inquiry is not
reasonably practicable.”
32. A perusal of the aforementioned judgments establishes that wherever the
exception clause of dispensing with the procedure of holding an enquiry and
affording an opportunity of hearing to the aggrieved persons is applied on extraneous
grounds or on grounds having no relation to the situation envisaged, any such action
of the disciplinary authority in applying the said clause or rule shall be considered as
mala fide and therefore bad in law and in such circumstances the court would
exercise its powers of judicial review to strike down the order dispensing with an
enquiry and the consequent order of penalty following therefrom.
33. Coming to the case in hand, Regulation 9 which has been applied in the
present case and is analogous to the second proviso to provisions of Article 311(2) of
the Constitution of India which carves out an exception from the settled law of
holding an enquiry, by permitting the competent authority to dispense with the
enquiry in exceptional cases which can only be invoked in special circumstances for
reasons to be recorded in writing that it is not reasonably practicable to follow the
procedure as laid down in the Regulations.
34. There is no dispute in the present case that the orders of termination of
services of the petitioners were not preceded by any notice. The stand of the
respondent is that in view of the fraud and forgery detected by the Chief Auditor of
the MCD, it was not necessary to give any notice. The additional stand of the
respondent is that as the initial appointment of the petitioners was void abinitio, there
was no need to conduct any formal enquiry by the respondent. This court is only to
examine as to whether in the present case the competent authority expressed its
satisfaction by giving reasons in writing that “it was not reasonably practicable” to
follow the procedure as laid down in the Regulations. The said Regulation 9 has to
be read in conjunction with Section 95 (2) of the Act which mandates that no
employee shall be punished under sub-section (1) unless he is given a reasonable
opportunity to show cause to the proposed action to be taken against him. Thus
inherent in the procedure to show cause is the procedure of holding an enquiry in
each and every matter as a precursor to arrive at a finding by the disciplinary
authority, followed by a penalty. Each case has necessarily to be examined on its
own peculiarities as what is not reasonably practicable in a particular case may not be
so in another case. Thus no uniform standard or measure can be laid down with
certainty as to in what circumstances would it not be reasonably practicable to hold
an enquiry. In the present case, in arriving at a conclusion that it was not reasonably
practicable to hold an enquiry and dispensing with the procedure of holding an
enquiry against the petitioners, respondent No.1 relied on the note dated 27th April,
2006 of the Additional Commissioner(H&E), MCD. However, a perusal of the said
note reproduced hereinabove, does not elucidate or elaborate the reasons on the basis
of which the respondent decided to dispense with the procedure of enquiry as is the
norm. Except for referring to the report of the Audit Department claiming detection
of fraud and forgery, there is no reasoning given in the said note or for that matter in
any separate order passed by respondent No.1 by which it could be stated that there
has been application of mind by the competent authority in dispensing with the
requirement of enquiry as not being reasonably practicable. “Practicable” in the
present case would include amongst others, situations where the documents which
form the basis of the employment of the petitioners were called for and were found to
be unavailable on account of being destroyed/lost/stolen or that the necessary
witnesses including the delinquent employees of the MCD, who the respondent
alleges were hand in glove with the petitioners in perpetrating a fraud on the
respondent had disappeared or would not come forward to depose under threat of
intimidation or that the nature of charge was so sensitive that it would not be in
public interest to hold a full-fledged enquiry. Considering the fact that the
respondents were confronted with the materials which as per the case of the
respondents, indicated fake appointments in the MCD in a large scale, it was
incumbent upon the respondents to call upon the petitioners and similarly placed
persons who were stated to be the beneficiaries of such a fraud, to come forward and
produce a proof of authenticity of their documents within a given period of time.
Looking at the matter from the above angle, the expression “not reasonably
practicable” would not apply to the present case as neither the noting sheets reveal,
nor the averments made on behalf of the respondents go on to establish that the
relevant records were sought for but were not made available or that the material
witnesses could not be located and/or produced or that the nature of the charges was
so sensitive that a full-fledged enquiry could not be held.
35. Keeping in mind the aforementioned principles, and applying the same
to the facts and circumstances of the present case, the decision taken by the MCD to
dispense with the enquiry proceedings is not sustainable in law. Except for stating
that no further enquiry is needed in view of the report of the Audit Department, there
are no reasons given by the respondent for dispensing with the enquiry and upon
considering the circumstances which emerge from the records, the court finds that
the reasons that are given are irrelevant, insufficient and not germane to the issue.
The then prevailing situation could not be considered such as to necessitate
dispensing with the enquiry proceedings, nor can it be held that the material
available on record was considered objectively so as to lead to such a conclusion.
The court cannot lose sight of the fact that when the outcome of the decision taken by
the competent authority is of such a grave nature as to result in termination of
services, the rule of natural justice cannot be shrugged off. Rather, the said rule
ought to be followed in the strictest of terms. The aforesaid view is fortified by a
number of judicial pronouncements wherein it has been held that the concept of
natural justice has undergone a sea-change in the recent past and the mere whims,
fancies and caprice of the disciplinary authority cannot be considered sufficient for
dispensing with the fundamental principle of abiding with the rules of natural justice.
As held by the Supreme Court in the case of Sayeed-ur-Rehman Versus State of
Bihar reported at 1973 (1) SLR 761:-
“Para 7:...This unwritten right of hearing is fundamental to a just decision by any
authority which decides a controversial issue affecting the rights of the rival
contestants. This right has its roots in the notion of fair procedure. It draws the
attention of the party concerned to the imperative necessity of not overlooking the
other side of the case before coming to its decision, for nothing is more likely to
conduce to just and right decision than the practice of giving hearing to the affected
parties. The President of the Board of Secondary Education would be deciding a
controversy affecting the rights of parties before him if and when he chooses to
reconsider the order dated April 22, 1960, whatever be the source of his power to do
so-a point left open by us. He is required to decide in the spirit and with a sense of
responsibility of a tribunal with a duty to mete out even-handed justice. The
appellant would thus be entitled to a fair chance of presenting his version of facts and
his submissions on law as his rights would be directly affected by such proceeding.
The omission of express requirement of fair hearing in the rules or other source of
power claimed for reconsidering the order dated April 22, 1960 is supplied by the
rule of justice which is considered as an integral part of our judicial process which
also governs quasi-judicial authorities when deciding controversial points affecting
rights of parties.”
36. Reliance placed by the counsel for the respondent on the judgment of
the Supreme Court in the case of Y. Token Singh (supra) does not take his case any
further as the said judgment can be distinguished from the present case on facts as
well as on law. While in the aforesaid case, the Apex court did not deal with any
provision of law specifically requiring the principles of natural justice to be followed
or any provision that allows dispensing with following such principles in certain
circumstances, in the present case, the issue revolves around the express provision of
law, i.e., Regulation 9 and Section 95(2) of the Act, and it has to be strictly seen in
that context as to whether the mandate of the said provisions could have been
invoked by the respondent while dispensing with the requirement of affording an
opportunity of hearing to the petitioners. Also in the aforesaid case, the Supreme
Court gave a categorical finding to the effect that where the facts of a case are
admitted, as in the aforesaid case, the principles of natural justice were not required
to be complied with. However, in the present case, not only are the facts disputed,
but as already mentioned, the respondent has been unable to establish any such
circumstances that would have made conducting of an enquiry ‘not reasonably
practicable’, which is the sine qua non for invoking the said provisions.
37. The judgment of the Supreme Court in the case of Inderpreet Singh
Kahlon (supra) also does not come to the rescue of the respondent. In fact in the said
case, dealing with the termination of the services of 173 persons, the Apex Court
observed that no distinction whatsoever had been made between the tainted and non-
tainted officers and also took into account the fact that some officers whose services
were terminated, had already put in about 3 years of service. While refusing to
consider the effect of the applicability of Article 311 to the facts of the said case, it
was observed in para 40 of the said judgment that an appointment made in violation
of Articles 14 and 16 of the Constitution of India would be void, but before such a
finding can be arrived at, the appointing authority must take into consideration the
foundational facts and that only when such foundational facts are established, the
legal principles can be applied. In this regard, three principles were laid down by the
Supreme Court in para 41 of the said judgment, compliance of which was held to be
imperative before any appointments could be cancelled. However, as none of the said
principles can be said to have been satisfied in the present case, the reliance placed
by the counsel for the respondent on the said judgment is misconceived. What is also
noteworthy is the nature of investigation undertaken in the said case, which included
not only an enquiry by the Vigilance department, but also an independent enquiry
conducted by the CBI wherein the statements of various accomplices had also been
recorded, which is quite unlike the facts of the case in hand, where none of the
petitioners have been given even a notice to show cause.
38. A bare perusal of the impugned order makes it manifest that the
respondent has failed in carving out the case in hand as an exceptional case to
dispense with the procedure of holding an enquiry. The rationale given in the said
noting or for that matter, even the documents placed before the court in the course of
the proceedings does not permit a conclusion to be drawn that it is not reasonably
practicable to hold an enquiry in the given facts and circumstances of the case. For
the aforesaid reasons, the application of the Regulation 9 (ii) to dispense with the
normal procedure is found to be unsustainable and unjusticeable. Admittedly, the
petitioners have been working in the various departments of the respondent/MCD for
at least 2-3 years and have been drawing wages too. Thus the respondent/MCD was
under an obligation to issue a notice to all the petitioners and call upon them to
explain not only their version, but also to produce the relevant records in their
possession and to establish their authenticity. By depriving the petitioners of an
opportunity to explain their version and visiting them with such grave civil
consequences as termination from service, is in the given circumstances arbitrary,
unjustified and is liable to be set aside.
39. In view of the aforesaid facts and circumstances, the impugned orders
dated 1st May, 2006 terminating the services of the petitioners are hereby quashed.
However, this does not preclude the respondent from holding an enquiry and
considering the materials afresh before passing appropriate orders in respect of each
of the petitioners, in accordance with law. Considering the gravity of the charges
levelled by the respondent against the petitioners to the effect that their initial
employment with the respondent was made on the basis of fake and fraudulent
documents and that even their regularization letters were not issued by the
competent authority, the court does not deem it appropriate to direct reinstatement of
the petitioners with all consequential benefits, including backwages. While setting
aside the impugned order and directing reinstatement of the petitioners, it is ordered
that in case an enquiry is decided to be held by the MCD, then the entire exercise
shall be undertaken and completed within a period of six months from the date of this
order and in the event the petitioners ultimately succeed in establishing their
bonafides, they shall be at liberty to claim all the consequential benefits,
including backwages as may be permissible, in accordance with law.
40. The writ petitions are disposed of in the above terms, with no orders as
to costs.
Sd/-
(HIMA KOHLI)
JUDGE