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