JUDGMENT
Hima Kohli, J.
1. 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 favor 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 v. Union of India and Ors. reported as , 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. v. 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 v. 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 v. Sido Kanhu University and Ors. reported as and a judgment rendered in the case of State of Maharashtra and Ors. v. 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 Anr. v. Tulsiram Patel, reported as and Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and Ors. reported as .
6. Counsel for the petitioner also cited a judgment of the Supreme Court in the case of Union of India v. Madhu Sudan Prasad reported as 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 dispatch 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 v. State of Punjab .
(ii) Secretary, State of Karnataka v. Uma Devi and Ors. .
(iii) State of Manipur v. Token Singh .
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 nothings 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 defense 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 in charge 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 in charge, 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 in charge 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 in charge of Hospital/Dispensary/Centre and duly verified by the Accounts Branch. The respective Medical Officers in charge 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 v. DTC Mazdoor Congress ). 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….
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. and Anr. v. Hindustan Steel Ltd. and 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.
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 Section 35(3) in this case will have to be read.
28. In the case of Jaswant Singh v. State of Punjab reported as , 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 , 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 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.
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 there from.
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 v. 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.