Shailendra Pandey, Member (A):
1. In this OA, the applicant, who has been working [a daily wager/muster roll employee] as Driver in the MCD since 1996, has challenged the respondent’s order dated 07.04.2010 in terms of which he has not only been denied regularization but also his daily wage/muster roll basis employment has been terminated.
2. The brief facts of the case are that the applicant has been working on daily wage/muster roll basis as Driver since 1996 in the respondent’s department. It is stated that the applicant’s case was also considered for regularization. However, vide communication dated 07.04.2010, he was informed that the MCD has decided to disengage him from the muster roll on the ground that vide Judgment dated 30.07.2004 passed by the Court at Haryana in the proceedings pursuant to FIR No.171 u/s 149/323-506/34 IPC, he had been found guilty, convicted and sentenced for offences punishable under Sections 148, 323, 326 read with Section 149 IPC. The applicant had filed against Criminal Appeal No.13 of 13.08.2004 against the judgment, which was decided on 06.1.2005, and the applicant was given the benefit of probation of good conduct for a period of two years under the supervision of the District Probationary Officer, subject to certain conditions. It is stated that these were fulfilled and the applicant had completed the probation period successfully. The applicant submitted a representation on 10.06.2010 (Annexure A3) highlighting the factual position of his having been given the benefit of probation which (having occurred after the order dated 30.07.2004) had not been noticed and considered by the respondents, and requested for review of the order of disengagement/denial of regularization. On 26.10.2010 the respondents in reply to an information sought under the RTI Act informed the applicant that the representation dated 10.06.2010 had been ordered to be consigned to the records as it was found to be bereft of merit. Hence, the present OA has been filed seeking the following reliefs:
quash and set aside the impugned orders/actions of the respondents and
direct the respondents to consider the applicant for regularization with effect from the date his counter parts and juniors have been regularized with all consequential benefits.
3. The main grounds raised by the applicant in his OA, in support of the aforesaid claim are:
that it was not permissible for a lower functionary to decide his representation which should have been considered by the Head of the Department to whom it was addressed and, therefore, the impugned action is illegal.
that the respondents have failed to consider that the sentence had been done away with by the appellate order dated 06.01.2005, passed by the Additional Session Judge, Rohtak.
That this Tribunal has in similar cases quashed the action of Government in denying appointment to a citizen who was given benefit of probation, in this regard he has relied on the Judgments of this Tribunal in Dharam Veer Singh v. Government of NCT of Delhi and Others (OA No.164/2010, decided on 25.11.2010).
The learned counsel for the applicant also submitted that the impugned order is not sustainable in law as it is non-speaking and does not give reasons for rejection of the contentions raised in his representation and is, therefore, violative of the principles of natural justice.
4. The respondents have opposed the OA and have taken a preliminary objection of jurisdiction and also of limitation. On merits, they have stated that the cases relied upon by the applicant are not applicable to the present case as the applicant had not disclosed the cases of the FIRs in his attestation form. Hence, the case of D.A.D v. Sushil Kumar (Civil Appeal No. 13231/1996) is applicable to the present case. Therefore, the case of the applicant was rightly rejected by the competent authority.
5. We have heard the counsel for both sides and have been through the pleadings on record, including the official record.
6. A copy of the impugned order dated 07.04.2010 is extracted below:-
“In reference of regularization of Shri Sukhbir Singh S/o Sh. Chhatar Singh, Daily wager/Driver the matter was refer to the CED. During the scrutiny of the matter, it was brought into the knowledge that a FIR No. 171 U/S 149/323/506/34 of IPC was registered in Police Station of Sampla (Rohtak) Haryana against Shri Sukhbir Singh S/o Sh. Chhatar Singh. The Hon’ble Court has passed the order on 30.07.2004 for sentence of imprisonment for one year with fine of Rs.500/- failing which imprisonment for one month, imprisonment for six months U/S 323/149 with cost, failing with deposit of find for imprisonment for one month, further U/S 326/149 of IPC two years imprisonment and find of Rs. 1,000/-.
The matter was placed before the Worthy Commissioner, MCD, (Apppointing Authority) for consideration of regularization of Sh. Sukhbir Singh, Daily Wager/Driver. After considering the court orders and record available in the file, Worthy Commissioner, MCD has been pleased to pass the orders on 17.03.2010 against Sh. Sukhbir Singh, Daily wager for disengagement from muster roll of MCD.
Issue this order accordingly and circulated among all concerned”.
7. The objection raised by the respondents with regard to jurisdiction is untenable as cases of regularization etc. of muster roll temporary employees in Government Departments fall within the jurisdiction of this Tribunal. The case also does not attract limitation as the impugned order disengaging the applicant from muster roll of MCD has been passed only on 07.04.2010 and the applicant has filed the present OA on 03.12.2010; which is within the limitation period prescribed under Section 21 of the Administrative Tribunals Act, 1985.
8.1 The first ground raised by the applicant is that it is not permissible for a lower functionary to decide his representation and the same should have been considered by the Head of Department to whom it was addressed.
We have perused the record and find that the order to disengage the petitioner and to reject his representation has been passed in terms of the orders issued by the Commissioner. Hence this ground is not tenable.
8.2 The next ground raised by the applicant is that the respondents have failed to consider that the order of the Trial Court was modified in appeal and the applicant was granted the benefit of probation and in this case he has relied on the judgment of this Tribunal in OA No.164/2010 Dharam Veer Singh v. Govt. of NCT of Delhi and Others, decided on 25.11.2010, to contend that appointment cannot be denied to an individual on the ground of his involvement in the criminal case in which he was released on probation.
From a perusal of the order of the Court (Annexure A2), in the appeal filed by the applicant in the criminal case No. 13 of 13/08.2004, it is seen that the Court had while sustaining the Judgment of conviction and order on the sentence, instead of ordering the applicant (and others) to undergo imprisonment awarded by the trial court, had given the benefit of probation of good conduct for a period of two years under the supervision of the District Probationary Officer.
We find that the impugned order has not dealt with this aspect of the matter and is, therefore, deficient to that extent. In the counter reply of the respondents (para 4.11), it is merely stated that ‘the facts of the given case are different from the facts of the present case and that the same is not applicable’ but it has not been explained as to how the same are not applicable. It is necessary for the respondents to do so.
8.3 We have further noticed an inconsistency in the impugned order and in reply given to para 4.3 of the OA, wherein it has been stated that MCD regularizes Muster Roll Daily Wagers from time to time as per policy after completing all the formalities, and that the applicant was called by the C E D vide letter dated 27.05.2005 for filling the attestation form for completing formalities pertaining to the regularization, but that during the course of verification of character and antecedents, it was informed by the District Magistrate concerned that four police cases had been registered in P.S. Sampla Haryana against the applicant. The applicant was, therefore, directed to explain the reasons for furnishing false information, and he again tried to mislead the department, which again referred the matter to the District Magistrate who re-confirmed his earlier stand. Hence, his case was not considered for regularization. A perusal of Para-41/N of the record produced also makes mention of the applicant having furnished false information about his involvement in the criminal case, which was thus a misconduct. However, a perusal of the impugned order extracted above reveals that there is no mention of his having furnished false information and that his disengagement from muster roll/non-regularization was due to his being involved in the criminal case and that the impugned order was passed after considering the Court’s orders and record available in file. This inconsistency between what is stated in the impugned order and what is stated in the counter reply is a major infirmity in the impugned order.
9. We also find that the representation dated 10.06.2010 (Annexure A-3) addressed to the Commissioner, MCD has not been formally replied to. There is only an information given to the applicant under the Right to Information Act vide letter dated 26.10.2010 (Annexure A-4), which states as under:-
“Your notice was received in this office through Respected DC/KBZ from the office of Worthy Commissioner, MCD.
After examining, the case file was sent to the office of ALO/KBZ to have expert legal opinion in this case. ALO/KBZ had not found any merit of the notice to forward it to the Worthy Commissioner, thus the same file been seen by the Competent Authority i.e. DC/KBZ and sent back to the department for record”.
We are of the considered view that it would be necessary for the respondents to formally decide the representation of the applicant by issue of a reasoned and speaking order, which deals with all the contentions raised in his representation dated 10.06.2010 (Annexure A-3) as also the aspect of his having been given the benefit of probation.
10. In view of the above, we are of the view that the interest of justice would be met if the present OA is disposed of by remitting the matter back to the Commissioner, MCD, New Delhi, to consider the representation of the applicant dated 10.06.2010 (Annexure A-3) and take a decision afresh after examining the case of the applicant in the light of the contentions raised in this OA and the judgment in Dharam Veer Singh’s case (supra) and our observations made above, and communicate the said decision to the applicant through a fresh reasoned and speaking order within a period of eight weeks from the date of receipt of a copy of this order. Ordered accordingly.
11. The OA is disposed of in terms of the aforesaid directions. No costs.