Delhi District CourtWhether Services Of vs Delhi Technological on 1 October, 2022IN THE COURT OF SH. JOGINDER PRAKASH NAHAR\n           PRESIDING OFFICER, LABOUR COURT-IX\n        ROUSE AVENUE COURTS COMPLEX, NEW DELHI\n\n    LIR No. 7962/16                        CNR No. DLCT13-005084-2016\n\n    Smt. Bebi\n    W/o Sh. Dharambir\n    R/o 765, Tahirpur Sarai\n    Dilshad Garden\n    Delhi-110095\n\n    C/o Municipal Employees' Union\n    Agarwal Bhawan, G.T. Road\n    Tis Hazari, Delhi-110054                          ......Workwoman\n\n    Versus\n\n    M/s. Commissioner\n    East Delhi Municipal Corporation\n    419, Udyog Sadan\n    Patparganj Industrial Area\n    New Delhi-110096                                  ......Management\n\n\n    Date of Institution                     :    23.04.2016\n    Date of Award reserved on               :    01.10.2022\n    Date of Award                           :    01.10.2022\n\n\n     REFERENCE U/SEC. 10(1) (C) AND 12(5) OF INDUSTRIAL\n\nLIR No. 7962/16\nBebi v. East Delhi Municipal Corporation                      Page 1 of 50\n     DISPUTE ACT, 1947 R/W GOVT. OF INDIA, MINISTRY OF\n       LABOUR NOTIFICATION NO. S-11011/2/75/DK (IA)\n       DATED 14th APRIL 1975 AND NOTIFICATION NO.\n        F.1/31/616/Estt./2008/7458 DATED 3rd MARCH 2009\n\n                                           AWAR D\n\n  BRIEF FACTS AND REASONS FOR DECISION :-1.              Vide this Award the present reference petition referred\n    by the Deputy Labour Commissioner, District East, Vishwkarma\n    Nagar, Jhilmil Colony, Delhi­110095, Labour Department, Govt.\n    of the National Capital Territory of Delhi shall be disposed which\n    was referred by appropriate Government/Office of Labour\n    Commissioner arising between the parties.2.              The present statement of claim was filed by the\n    workwoman on 23.04.2016 submitting that she has joined the\n    management on 02.03.1996 as 'Safai Karamchari' on fixed wages\n    revised underMinimum Wages Act. She was employed as\n    substitute Safai Karamchari and there is no difference in\n    nomenclature from 'Substitute' to 'Daily Wager'. Vide order dated\n    22.07.2010 the management has converted substitute SafaiLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                       Page 2 of 50Karamcharies into daily wager Safai Karamchari who were\n    engaged from 01.04.1994 to 31.03.1996. The workwoman had\n    worked continuously and uninterruptedly upto 09.05.2012. The\n    management has given offer letter dated 31.03.2011 to workwoman\n    to work under regular post and thereby on such offer and post of\n    the service of workwoman was regularised by the management\n    vide office order dated 30.07.2011. Medical examination and\n    police verification was also done. Suddenly on 09.05.2012 the\n    management had sent a termination/disengagement order which is\n    bad and illegal under law issued with malafide intention.\n    workwoman is a regular employee who has not committed any\n    misconduct. No show cause notice or charge sheet was issued to\n    the workwoman. The removal order dated 09.05.2012 was issued\n    by Assistant Commissioner who has no authority to do so as she is\n    not the appointing authority. Unfair labour practice was committed.\n    Termination of service was totally disproportionate to the\n    allegations levelled by the management. No notice or notice pay or\n    retrenchment compensation was paid. workwoman has worked for\n    more than 240 days in a year preceding the date of her illegal\n    termination and therefore she is entitled for protection underSection 25F,25Gand25Hof Industrial Disputes Act, 1947 r/w\n    Rule 76, 77 and 78 of Industrial Dispute (Central) Rules, 1957. HerLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                   Page 3 of 50juniors are retained in service and even after her termination fresh\n    concern are employed by the management. No seniority list was\n    displayed by the management before the alleged termination of\n    workwoman. Permission from appropriate Government was also\n    not taken. The demand letter was sent by workwoman to the\n    management is dated 18.05.2012 which was duly received at their\n    office but no reply was given. Similarly conciliation proceedings\n    stands failed. Accordingly workwoman has prayed that Award may\n    be allowed in her favour thereby setting aside the order of\n    termination with direction to reinstate the workwoman in service\n    with continuity of service with full back wages. The workwoman\n    has also claimed cost of litigation u/Sec. 11(7) of theIndustrial\n    Disputes Act, 1947.3.              In the written statement filed by the management it is\n    submitted by the management that the workwoman was initially\n    taken as Substitute Safai Karamchari against daily wages on\n    01.04.2003. She was not working continuously though she has\n    engaged another person on her behalf work for management and\n    she herself has worked somewhere else. Despite warnings by the\n    concerned inspector she did not take care. In the year 2011 the\n    substitute Safai Karamachari were considered for regularizationLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                      Page 4 of 50who were appointed prior to March 1996. Since the workwoman\n    herein was appointed in the month of April, 2003 therefore she\n    could not be considered for regularization in the year 2011. The\n    workwoman including 84 Safai Karamacharies has done something\n    malafide on which inquiry was conducted by vigilance department.\n    Thereafter 84 Safai Karamacharies were disengaged vide order\n    dated 09.05.2012. The workwoman managed to destroy the\n    original records in connivance with account and sanitation\n    department officials. Hence the conduct is fraudulent. The original\n    documents in the application are not available with DEMS\n    Department, Shahdara (South) Zone, EDMC and the documents\n    are also not available in head quarter which was reported by the\n    department vide letter dated 28.12.2015. The matter was referred\n    to Anti Corruption branch, GNCT of Delhi who has some\n    document including original files. It is admitted that the\n    workwoman was so terminated. On conclusion of inquiry from\n    Central Vigilance Cell show cause notice was issued to the\n    workwoman to submit certain documents which workwoman fail\n    to submit and thereby her services were terminated. Other claim of\n    the workwoman are generally denied.4.              On the pleadings of the parties and averments madeLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                   Page 5 of 50following issues are framed in the reference on 10.08.2017:1. Whether services of claimant (Bebi) were terminated\n            by management of EDMC illegally and/or\n            unjustifiably?OPW2. Relief.5.              The sole witness of the workwoman is WW-1 who is\n    workwoman herself who relied upon the documents which are\n    Ex.WW1/1 to Ex.WW1/11 and on request of workwoman WE was\n    closed on 05.10.2018. The management has examined MW-1/Sh.\n    Dheeraj Kumar who relied upon the document which is\n    Ex.MW1/1. On 01.06.2022 ME was closed by the order of the\n    Court/this Tribunal.6.              Final arguments are heard and record perused.7.              The issue-wise findings are as follows:-8. ISSUE NO. 11. Whether services of claimant (Bebi) were terminated by\n            management of EDMC illegally or unjustifiably? OPWLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                        Page 6 of 508.1             The workwoman has pleaded in her statement of claim\n    that a letter was sent on the management by hand which was duly\n    served and received by the management vide communication dated\n    18.05.2012 at point A. No reply is received from the management\n    and it is presumed that the demand has been rejected. In the\n    conciliation proceedings the management had non co-operative\n    attitude. The letter dated 18.05.2012 is Ex.WW1/9 which was\n    produced in evidence by WW-1. Ex.WW1/9 bears stamp of\n    receiving from MCD dated 18.05.2012 at point A. No question is\n    asked by the management regarding Ex.WW1/9 from the\n    workwoman. The deposition of the workwoman in cross-\n    examination that it did not send demand notice after termination of\n    her job does not serve any purpose in view of the pleading and\n    deposition by workwoman in evidence by way of affidavit. It was\n    incumbent on the management to confront the workwoman on\n    Ex.WW1/9 the demand notice and the stamp of management\n    bearing on first page at point A of demand notice. Neither the\n    signature of workwoman are confronted nor the original of the said\n    document was asked from the workwoman. Hence the workwoman\n    has proved that demand notice was sent to the management by\n    preponderance of probability which was duly served on the\n    management before filing this claim.LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                    Page 7 of 508.2             WW-1 has deposed in same terms of her pleadings. She\n    was disengaged vide Ex.WW1/8 bearing her name at sl.no. 9 of the\n    said office order in the list B mentioning that "joined duty but\n    absent from duty after joining". The workwoman was regularized\n    vide order Ex.WW1/1. Ex.WW1/4 is the record of medical\n    examination of the workwoman. It is admitted case of the\n    management that only vigilance inquiry was conducted by the\n    vigilance department on the ground of suspicion that some fake\n    person are acting and representing on behalf of actual person and\n    the fake person only are drawing the salary. No chargesheet or\n    departmental inquiry was conducted against the workwoman.\n    Letter was sent to the workwoman herein to submit documents\n    regarding confirmation and verification which workwoman failed\n    to produce that she was working on monthly salary of Rs.12,400/-\n    continuously from Shahdara, South Zone. The workwoman has not\n    complied with offer letter Ex.WW1/3 dated 31.03.2011. Show\n    cause notice was issued to the workwoman and certain documents\n    were asked which workwoman did not supply to the management.\n    Therefore the service of the workwoman was terminated. The date\n    of appointment of the workwoman with the management is claim\n    by the management that she was appointed as substitute Safai\n    Karamchari on daily wages on 01.04.2003. Workwoman hasLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                     Page 8 of 50pleaded that she was appointed as Safai Karamchari on 02.03.1996.\n    However in parawise reply the management has not controverted\n    the date of joining pleaded by the workwoman and in cross-\n    examination the MW-1 has admitted as correct the date of joining\n    of the workwoman with the management as 02.03.1996. The date\n    of termination of workwoman is 09.05.2012 vide Ex.WW1/8.\n    Hence admittedly the workwoman had uninterrupted and\n    continuous service with the management for more than 240 days in\n    a year counting backward from the last date of her termination\n    which is 09.05.2012. Now the onus of proof has therefore shifted\n    on the management who has disputed the identity of the\n    workwoman that it is not the same workwoman who was employed\n    by the management. The MCD had not conducted any departmental\n    inquiry in respect of workwoman nor filed first information report\n    if the identity of workwoman was disputed. The onus is on the\n    management and not on the workwoman as the name of the\n    workwoman with her husband's name and address is already\n    available on record. The management has failed to show having\n    given any notice to the workwoman asking her to submit her record\n    of identity. Before employing a daily wager the management must\n    also be taking the document of identity of workwoman. None of\n    which were filed by the management. Hence management has notLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                  Page 9 of 50filed any document which could show it had given any sort of\n    notice/chargesheet/department inquiry against the workwoman\n    disputing that she is not employee of the management. Not only\n    this the management must show on record that it had disputed this\n    fact that workwoman is not its employee before the conciliation\n    officer. Now disputing this fact before the present Court will\n    amount to enlarging the scope of reference by the management and\n    therefore which cannot be permitted before the present Court.\n    Management has also pleaded that the workwoman had failed to\n    produce any document to show eligibility for regularization. It is\n    admitted fact on record that workwoman was already regularized\n    by the management vide Ex.WW1/1. In the said exhibit the date of\n    engagement of the workwoman is mentioned as 02.03.1996 at sl.\n    no. 6764. All this while the management must be paying salary to\n    the workwoman. Other than this it is mandatory requirement as perSection 25Dof Industrial Disputes Act, 1947 to produce muster\n    roll. In fact what the management has pleaded in the written\n    statement regarding identity of the workwoman must be proved by\n    the management on record as onus of the above fact as pleaded by\n    the management lies on the management only. Without any\n    application or notice and in absence of any complaint the above\n    averments of the management are found vague in nature which areLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                  Page 10 of 50not specific to date, month and year.8.3             MW-1 has deposed that workwoman had joined her\n    employment on 02.03.1996 as Safai Karamchari. It is admitted as\n    correct that she was daily wager/muster roll w.e.f 22.07.2010 who\n    was regularized vide order dated 30.07.2011 Ex.WW1/6. It is\n    admitted as correct that the workwoman has completed formalities\n    of regularization namely police verification, medical examination\n    etc. It is admitted that no chargesheet or inquiry was conducted\n    against the workwoman. Management does not have any document\n    or material to show that workwoman is gainfully employed after\n    09.05.2012 in view of deposition of workwoman regarding her\n    unemployment from the date of her illegal termination since\n    09.05.2012. MW-1 admits that management maintain complete\n    wage records which he failed to show during evidence.8.4             The regularization of workwoman in the present case\n    with the management is disputed by the management that due\n    process is not followed. It is a question of fact and law between the\n    parties. The disputed question of fact and law has to be established\n    between the parties as per the burden and onus of proof during the\n    course of trial. The relevant citation titled Anil Lamba & Ors. v.LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                    Page 11 of 50Govt. of NCT & Ors. in W.P.(C) No. 1958/2017, 2017 SCC\n    Online Del 7382: (2017) 238 DLT 760: 2017 Lab IC 3512:(2017) 163 DRJ 32 from Hon'ble High Court of Delhi wherein it is\n    laid down that the contractual employee, daily wage employee, ad-hoc employee, irregular appointees, those appointed on contract,\n    temporary employees, casual employees are all who are appointed\n    not against sanctioned posts. The floating schemes to regularise\n    appointees with no advertisements are issued. It is mandatory on\n    the part of employee to invite applications from all the eligible\n    candidates from the open market. Hon'ble Supreme Court of India\n    in case titledState of Karnataka v. Uma Devihas laid down\n    binding law which is judgment from Constitutional Bench. Inthe\n    said judgmentthe illegal appointees are not given any relief but\n    only irregular appointees are given relief to the effect that those\n    who had worked ten years prior to the passing ofthe said decisionhad worked in their post without benefit of Court orders and who\n    were eligible persons being appointed against vacancies in\n    sanctioned post then Government and Government Organization\n    were to float schemes to regularize appointments only for such\n    irregular appointees from eligible candidates without means of\n    advertisements as only one time measure and no further;LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                   Page 12 of 502. So far as the first issue is concerned, learned senior counsel\n            for the respondent no.3 places reliance upon para 3 of the\n            advertisements issued with respect to the petitioners and as per\n            which advertisements, appointment of the petitioners was to be\n            on contractual basis and accordingly it is argued that\n            contractual employees cannot seek regularization. One such\n            advertisement para 3 reads as under:-"3. All appointments shall be on "contract basis" and will be\n            initially for a period of four years‟ including a probationary\n            period of one year. The contractual appointment may be\n            extended for a further period of four years‟ based on\n            performance of the candidate during the initial period of four\n            years."3. Learned senior counsel for the respondent no.3 accordingly\n            places reliance upon the ratio of the judgment delivered by this\n            Court in a bunch of cases with lead case being W.P. (C)\n            10368/2016 titled asKumar Mayank Vs. Delhi Technological\n            University & Anr.decided on 10.11.2016 that contractual\n            employees cannot be confirmed in their services and their\n            services cannot be regularized.It may be noted that inKumar\n            Mayank's case (supra), this Court hasplaced reliance uponthe\n            ratios of four judgments of the Supreme Court which hold that\n            contractual employees cannot be regularized because this will\n            amount to perpetrating fraud on those candidates who did not\n            apply thinking that the posts are not permanent posts. The\n            judgments of the Supreme Court in this regard are as under:-(i) Official Liquidator Vs. Dayanand & Others (2008) 10 SCC 1(ii) National Fertilizers Ltd. and Others Vs. Somvir Singh(2006)\n            5 SCC 493.(iii) Kendriya Vidyalaya Sangathan and Others Vs. L.V.\n            Subramanyeswara and Another(2007) 5 SCC 326.(iv) State of Orissa and Another Vs. Mamata Mohanty(2011) 3 SCC 436.4. I completely agree with the arguments urged on behalf of theLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                               Page 13 of 50respondent no.3 because contractual employees cannot claim\n            regularization of their services and confirmation of services in\n            view of the ratios of four judgments of the Supreme Courtreferred to aboveand relevant paras laying down the ratio of\n            which four judgments, along with the ratio of the Constitution\n            Bench of Supreme Court in the case ofSecretary, State of\n            Karnataka and Others Vs. Umadevi(3) and Others 2006 (4)\n            SCC 1, have been given in paras 2 to 8 of the judgment inKumar Mayank's case (supra) and which paras read as under:-"2. It is now over 10 years since the of passing of the judgment\n            by the Constitution Bench of the Supreme Court in the case ofSecretary, State of Karnataka and Others Vs. Umadevi(3) and\n            Others 2006 (4) SCC 1 and which judgment effectively puts to\n            an end the „industry‟ created of temporary appointments and\n            thereafter regularization of such temporary employees.The\n            Supreme Court has made it abundantly clear inUmadevi's case\n            (supra) that before appointing of persons on a\n            regular/permanent basis there have to exist recruitment\n            rules or specific eligibility criteria laid down for the\n            appointments, there must be sanctioned posts, there must be\n            vacancies in the sanctioned posts, and finally there must be\n            issued advertisements for filling the posts; not as temporary or\n            contractual posts but as permanent posts; so that there should\n            be a level playing field of competition with respect to\n            prospective appointees. Candidates can also be called from the\n            lists of employment exchanges.Umadevi's case (supra) has laid\n            down the following ratio:-"(I) The questions to be asked before regularization are:-(a)(i)Was there a sanctioned post (court cannot order creation of\n            posts because finances of the state may go haywire), (ii) is there\n            a vacancy, (iii) are the persons qualified persons and (iv) are the\n            appointments through regular recruitment process of(b) A court can condone an irregularity in the appointment\n            procedure only if the irregularity does not go to the root of the\n            matter. (II) For sanctioned posts having vacancies, such postsLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 14 of 50have to be filled by regular recruitment process of prescribed\n            procedure otherwise, the constitutional mandate flowing fromArticles 14, 16, 309, 315, 320etc is violated.\n            (III) In case of existence of necessary circumstances the\n            government has a right to appoint contract employees or\n            casual labour or employees for a project, but, such persons form\n            a class in themselves and they cannot claim equality(except\n            possibly for equal pay for equal work) with regular employees\n            who form a separate class. Such temporary employees cannot\n            claim legitimate expectation of absorption/regularization as\n            they knew when they were appointed that they were temporary\n            inasmuch as the government did not give and nor could have\n            given an assurance of regularization without the regular\n            recruitment process being followed. Such irregularly\n            appointed persons cannot claim to be regularized alleging\n            violation ofArticle 21.Also the equity in favour of the millions\n            who await public employment through the regular recruitment\n            process outweighs the equity in favour of the limited number of\n            irregularly appointed persons who claim regularization.\n            (IV) Once there are vacancies in sanctioned posts such vacancies\n            cannot be filled in except without regular recruitment process,\n            and thus neither the court nor the executive can frame a\n            scheme to absorb or regularize persons appointed to such\n            posts without following the regular recruitment process.\n            (V) At the instance of persons irregularly appointed the process\n            of regular recruitment shall not be stopped. Courts should not\n            pass interim orders to continue employment of such irregularly\n            appointed persons because the same will result in stoppage of\n            recruitment through regular appointment procedure.\n            (VI) If there are sanctioned posts with vacancies, and qualified\n            persons were appointed without a regular recruitment process,\n            then, such persons who when the judgment of Uma Devi is\n            passed have worked for over 10 years without court orders,\n            such persons be regularized under schemes to be framed by the\n            concerned organization.LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 15 of 50(VII)The aforesaid law which applies to the Union and the\n            States will also apply to all instrumentalities of the State\n            governed byArticle 12of the Constitution".3. The aforesaid ratio of the Supreme Court can be culled out\n            from the following paragraphs of the judgment of the Supreme\n            Court inUmadevi's case (supra):-"2. Public employment in a sovereign socialist secular\n            democratic republic, has to be as set down by the Constitution\n            and the laws made thereunder. Our constitutional scheme\n            envisages employment by the Government and its\n            instrumentalities on the basis of a procedure established in that\n            behalf. Equality of opportunity is the hallmark, and the\n            Constitution has provided also for affirmative action to ensure\n            that unequals are not treated equals. Thus, any public\n            employment has to be in terms of the constitutional scheme.3. A sovereign government, considering the economic situation\n            in the country and the work to be got done, is not precluded\n            from making temporary appointments or engaging workers on\n            daily wages. Going by a law newly enacted,The National Rural\n            Employment Guarantee Act, 2005, the object is to give\n            employment to at least one member of a family for hundred days\n            in an year, on paying wages as fixed under that Act. But, a\n            regular process of recruitment or appointment has to be resorted\n            to, when regular vacancies in posts, at a particular point of time,\n            are to be filled up and the filling up of those vacancies cannot be\n            done in a haphazard manner or based on patronage or other\n            considerations. Regular appointment must be the rule.4. But, sometimes this process is not adhered to and the\n            Constitutional scheme of public employment is by-passed. The\n            Union, the States, their departments and instrumentalities have\n            resorted to irregular appointments, especially in the lower rungs\n            of the service, without reference to the duty to ensure a proper\n            appointment procedure through the Public Service Commission\n            or otherwise as per the rules adopted and to permit these\n            irregular appointees or those appointed on contract or onLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 16 of 50daily wages, to continue year after year, thus, keeping out\n            those who are qualified to apply for the post concerned and\n            depriving them of an opportunity to compete for the post. It has\n            also led to persons who get employed, without the following of a\n            regular procedure or even through the backdoor or on daily\n            wages, approaching Courts, seeking directions to make them\n            permanent in their posts and to prevent regular recruitment to\n            the concerned posts. Courts have not always kept the legal\n            aspects in mind and have occasionally even stayed the regular\n            process of employment being set in motion and in some cases,\n            even directed that these illegal, irregular or improper entrants be\n            absorbed into service. A class of employment which can only be\n            called 'litigious employment', has risen like a phoenix seriously\n            impairing the constitutional scheme. Such orders are passed\n            apparently in exercise of the wide powers underArticle 226of\n            the Constitution of India. Whether the wide powers underArticle\n            226of the Constitution is intended to be used for a purpose\n            certain to defeat the concept of social justice and equal\n            opportunity for all, subject to affirmative action in the matter of\n            public employment as recognized by our Constitution, has to be\n            seriously pondered over. It is time, that Courts desist from\n            issuing orders preventing regular selection or recruitment at\n            the instance of such persons and from issuing directions for\n            continuance of those who have not secured regular appointments\n            as per procedure established. The passing of orders for\n            continuance, tends to defeat the very Constitutional scheme of\n            public employment. It has to be emphasized that this is not the\n            role envisaged for High Courts in the scheme of things and their\n            wide powers underArticle 226of the Constitution of India are\n            not intended to be used for the purpose of perpetuating\n            illegalities, irregularities or improprieties or for scuttling the\n            whole scheme of public employment. Its role as the sentinel and\n            as the guardian of equal rights protection should not be\n            forgotten.5. This Court has also on occasions issued directions which\n            could not be said to be consistent with the Constitutional scheme\n            of public employment. Such directions are issued presumably onLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 17 of 50the basis of equitable considerations or individualization of\n            justice. The question arises, equity to whom? Equity for the\n            handful of people who have approached the Court with a claim,\n            or equity for the teeming millions of this country seeking\n            employment and seeking a fair opportunity for competing for\n            employment? When one side of the coin is considered, the other\n            side of the coin, has also to be considered and the way open to\n            any court of law or justice, is to adhere to the law aslaid down\n            bythe Constitution and not to make directions, which at times,\n            even if do not run counter to the Constitutional scheme, certainly\n            tend to water down the Constitutional requirements. It is this\n            conflict that is reflected in these cases referred to the\n            Constitution Bench.6. The power of a State as an employer is more limited than\n            that of a private employer inasmuch as it is subjected to\n            constitutional limitations and cannot be exercised arbitrarily\n            (See Basu's Shorter Constitution of India).Article 309of the\n            Constitution gives the Government the power to frame rules for\n            the purpose of laying down the conditions of service and\n            recruitment of persons to be appointed to public services and\n            posts in connection with the affairs of the Union or any of the\n            States. That Article contemplates the drawing up of a procedure\n            and rules to regulate the recruitment and regulate the service\n            conditions of appointees appointed to public posts. It is well\n            acknowledged that because of this, the entire process of\n            recruitment for services is controlled by detailed procedure\n            which specify the necessary qualifications, the mode of\n            appointment etc. If rules have been made underArticle 309of\n            the Constitution, then the Government can make appointments\n            only in accordance with the rules. The State is meant to be a\n            model employer.The Employment Exchanges (Compulsory\n            Notification of Vacancies) Act, 1959was enacted to ensure\n            equal opportunity for employment seekers. Though this Act\n            may not oblige an employer to employ only those persons who\n            have been sponsored by employment exchanges, it places an\n            obligation on the employer to notify the vacancies that may arise\n            in the various departments and for filling up of those vacancies,LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 18 of 50based on a procedure. Normally, statutory rules are framed under\n            the authority of law governing employment. It is recognized\n            that no government order, notification or circular can be\n            substituted for the statutory rules framed under the\n            authority of law. This is because, following any other course\n            could be disastrous inasmuch as it will deprive the security of\n            tenure and the right of equality conferred on civil servants under\n            the Constitutional scheme. It may even amount to negating the\n            accepted service jurisprudence. Therefore, when statutory rules\n            are framed underArticle 309of the Constitution which are\n            exhaustive, the only fair means to adopt is to make appointments\n            based on the rules so framed.xxxxx xxxxx11. In addition to the equality clause represented byArticle 14of\n            the Constitution,Article 16has specifically provided for equality\n            of opportunity in matters of public employment. Buttressing\n            these fundamental rights, Article309 provides that subject to the\n            provisions of the Constitution, Acts of the legislature may\n            regulate the recruitment and conditions of service of persons\n            appointed to public services and posts in connection with the\n            affairs of the Union or of a State. In view of the interpretation\n            placed onArticle 12of the Constitution by this Court,\n            obviously, these principles also govern the instrumentalities\n            that come within the purview ofArticle 12of the\n            Constitution. With a view to make the procedure for selection\n            fair, the Constitution byArticle 315has also created a Public\n            Service Commission for the Union and Public Service\n            Commissions for the States. Article 320deals with the functions\n            of Public Service Commissions and mandates consultation with\n            the Commission on all matters relating to methods of\n            recruitment to civil services and for civil posts and other related\n            matters. As a part of the affirmative action recognized byArticle\n            16of the Constitution,Article 335provides for special\n            consideration in the matter of claims of the members of the\n            scheduled castes and scheduled tribes for employment. The\n            States have made Acts, Rules or Regulations for implementingLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 19 of 50the above constitutional guarantees and any recruitment to the\n            service in the State or in the Union is governed by such Acts,\n            Rules and Regulations. The Constitution does not envisage any\n            employment outside this constitutional scheme and without\n            following the requirements set down therein.12. In spite of this scheme, there may be occasions when the\n            sovereign State or its instrumentalities will have to employ\n            persons, in posts which are temporary, on daily wages, as\n            additional hands or taking them in without following the\n            required procedure, to discharge the duties in respect of the posts\n            that are sanctioned and that are required to be filled in terms of\n            the relevant procedure established by the Constitution or for\n            work in temporary posts or projects that are not needed\n            permanently. This right of the Union or of the State\n            Government cannot but be recognized and there is nothing in\n            the Constitution which prohibits such engaging of persons\n            temporarily or on daily wages, to meet the needs of the\n            situation. But the fact that such engagements are resorted to,\n            cannot be used to defeat the very scheme of public\n            employment. Nor can a court say that the Union or the State\n            Governments do not have the right to engage persons in various\n            capacities for a duration or until the work in a particular project\n            is completed. Once this right of the Government is recognized\n            and the mandate of the constitutional requirement for public\n            employment is respected, there cannot be much difficulty in\n            coming to the conclusion that it is ordinarily not proper for\n            courts whether acting underArticle 226of the Constitution or\n            underArticle 32of the Constitution, to direct absorption in\n            permanent employment of those who have been engaged\n            without following a due process of selection as envisaged by the\n            constitutional scheme.Xxxxx53. One aspect needs to be clarified. There may be cases where\n            irregular appointments (not illegal appointments) as\n            explained inS.V. Narayanappa(supra), R.N.Nanjundappa\n            (supra),and B.N.Nagarajan ( supra), and referred to in paragraphLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 20 of 5015 above, of duly qualified persons in duly sanctioned vacant\n            posts might have been made and the employees have continued\n            to work for ten years or more but without the intervention of\n            orders of courts or of tribunals. The question of regularization of\n            the services of such employees may have to be considered on\n            merits in the light of the principles settled by this Court in the\n            cases above referred to and in the light of this judgment. In that\n            context, the Union of India, the State Governments and their\n            instrumentalities should take steps to regularize as a onetime\n            measure, the services of such irregularly appointed, who have\n            worked for ten years or more in duly sanctioned posts but not\n            under cover of orders of courts or of tribunals and should\n            further ensure that regular recruitments are undertaken to fill\n            those vacant sanctioned posts that require to be filled up, in\n            cases where temporary employees or daily wagers are being now\n            employed. The process must be set in motion within six months\n            from this date. We also clarify that regularization, if any already\n            made, but not subjudice, need not be reopened based on this\n            judgment, but there should be no further by-passing of the\n            constitutional requirement and regularizing or making\n            permanent, those not duly appointed as per the constitutional\n            scheme."4. It is now no longer res integra that in terms of the Constitution\n            Bench judgment of the Supreme Court in the case ofSecretary,\n            State of Karnataka and Others Vs. Umadevi(3) and Others 2006\n            (4) SCC 1 before a person can seek regularization, four\n            aspects must exist viz first of there existing sanctioned posts,\n            second of there existing vacancies in sanctioned posts for which\n            there exists authority/entitlement to fill up, thirdly that the\n            persons who are appointed in vacancies against sanctioned posts\n            are duly qualified persons, and fourthly appointment is made\n            of persons who have been called through advertisements widely\n            circulated so that there is open competition among the eligible\n            persons.9. Supreme Court recently in the judgment in the case ofKendriya Vidyalaya Sangathan and Others Vs. L.V.LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 21 of 50Subramanyeswara and Another(2007) 5 SCC 326 has held that\n            if all the eligible candidates are not called by means of the\n            advertisement, then, the process of recruitment will violate the\n            ratio in the case ofUmadevi(supra) as alsoArticles 14and16of the Constitution of India.These observations have been made\n            by the Supreme Court in para 10 of the judgment in the case ofKendriya Vidyalaya Sangathan(supra) and this para 10 reads as\n            under:- "10. Had such regular vacancies been created, appellants\n            would have been directed to be appointed on All India Basis.\n            Respondents did not get their names registered in the Central\n            Employment Exchange. Keeping in view the nature of the job\n            and in particular that the posts are transferable throughout the\n            country, an opportunity within the meaning ofArticles 14and16of the Constitution of India would mean an opportunity to all\n            who are eligible therefore. Advertisement was issued for a\n            limited purpose, namely, for leave vacancies, local employment\n            exchanges were contacted only for filling of such posts and not\n            regular posts." (underlining added)10. Another recent judgment of the Supreme Court and which in\n            a way lays down the same ratio is the judgment in the case of\n            State of Orissa and Another Vs. Mamata Mohanty (2011) 3 SCC436.In this judgment the Supreme Court has held that\n            candidates who are not duly qualified if are appointed, the same\n            would cause grave and irreparable injury to other\n            unqualified candidates who would have otherwise applied, and\n            therefore in such a case when unqualified persons seek\n            regularization, that would be violative of the ratio in the case ofUmadevi(supra) as alsoArticles 14and16of the Constitution\n            of India.The relevant observations of the Supreme Court in the\n            case ofMamta Mohanty(supra) are made in para 36 of the\n            judgment, and para 35 also is relevant because the same makes\n            the legal position very clear that the object of issuing\n            advertisement is to ensure open competition by calling of all the\n            eligible candidates. These paras 35 and 36 read as under:-"35. At one time this Court had been of the view that calling the\n            names from Employment Exchange would curb to certain extentLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 22 of 50the menace of nepotism and corruption in public employment.\n            But, later on, came to the conclusion that some appropriate\n            method consistent with the requirements ofArticle 16should be\n            followed. In other words there must be a notice published in the\n            appropriate manner calling for applications and all those who\n            apply in response thereto should be considered fairly. Even if the\n            names of candidates are requisitioned from Employment\n            Exchange, in addition thereto it is mandatory on the part of\n            the employer to invite applications from all eligible\n            candidates from the open market by advertising the vacancies\n            in newspapers having wide circulation or by announcement in\n            Radio and Television as merely calling the names from the\n            Employment Exchange does not meet the requirement of the\n            said Article of the Constitution. (Vide Delhi Development\n            Horticulture Employees' Union v. Delhi Admn., : AIR 1992 SC\n            789, State of Haryana v. Piara Singh : AIR 1992 SC 2130,\n            Excise Supdt. v. K.B.N. Visweshwara Rao : (1996) 6 SCC 216,\n            Arun Tewari v. Zila Mansavi Shikshak Sangh:AIR 1998 SC\n            331, Binod Kumar Gupta v. Ram Ashray Mahoto:AIR 2005 SC\n            2103, National Fertilizers Ltd. v. Somvir Singh:AIR 2006 SC\n            2319, Telecom District Manager v. Keshab Deb: (2008) 8 SCC\n            402, State of Bihar v. Upendra Narayan Singh: (2009) 5 SCC 65\n            and State of M.P. v. Mohd. Abrahim: (2009) 15 SCC 214.)36. Therefore, it is a settled legal proposition that no person\n            can be appointed even on a temporary or ad hoc basis\n            without inviting applications from all eligible candidates. If\n            any appointment is made by merely inviting names from the\n            Employment Exchange or putting a note on the Notice\n            Board etc. that will not meet the requirement ofArticles 14and16of the Constitution. Such a course violates the mandates\n            ofArticles 14and16of the Constitution of India as it deprives\n            the candidates who are eligible for the post, from being\n            considered. A person employed in violation of these provisions\n            is not entitled to any relief including salary. For a valid and legal\n            appointment mandatory compliance of the said Constitutional\n            requirement is to be fulfilled. The equality clause enshrined inArticle 16requires that every such appointment be made by anLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                  Page 23 of 50open advertisement as to enable all eligible persons to compete\n            on merit." (underlining added)11.InUmadevi's case (supra) the only exception which was\n            carved out with respect to regularization of persons was those\n            persons whose appointments were irregular as distinguished\n            from illegal.Such irregular appointees who had worked for 10\n            years prior to passing of the decision inUmadevi's case\n            (supra), if they had worked in their posts without benefit of\n            court orders, such eligible persons who had been appointed\n            against vacancies in sanctioned posts, the government and\n            governmental organizations were to float schemes to regularize\n            appointments of such irregularly appointed persons on account\n            of the fact that appointments made were only irregular i.e the\n            recruitment process was of filling posts from eligible candidates\n            without means of advertisements in newspapers and/or\n            through the employment exchange.Para 53 of the judgment in\n            the case ofUmadevi(supra) reads as under:-"53. One aspect needs to be clarified. There may be cases where\n            irregular appointments (not illegal appointments) as explained inState of Mysore v. S.V. Narayanappa:AIR 1967 SC 1071, R.N.\n            Nanjundappa v. T. Thimmiah: (1972) 1 SCC 409, and B.N.\n            Nagarajan v. State of Karnataka: (1979) 4 SCC 507, and\n            referred to in paragraph 15 above, of duly qualified persons in\n            duly sanctioned vacant posts might have been made and the\n            employees have continued to work for ten years or more but\n            without the intervention of orders of courts or of tribunals. The\n            question of regularization of the services of such employees may\n            have to be considered on merits in the light of the principles\n            settled by this Court in the cases above referred to and in the\n            light of this judgment. In that context, the Union of India, the\n            State Governments and their instrumentalities should take steps\n            to regularize as a one time measure, the services of such\n            irregularly appointed, who have worked for ten years or more in\n            duly sanctioned posts but not under cover of orders of courts or\n            of tribunals and should further ensure that regular recruitments\n            are undertaken to fill those vacant sanctioned posts that requireLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                               Page 24 of 50to be filled up, in cases where temporary employees or daily\n            wagers are being now employed. The process must be set in\n            motion within six months from this date. We also clarify that\n            regularization, if any already made, but not sub judice, need not\n            be reopened based on this judgment, but there should be no\n            further by-passing of the constitutional requirement and\n            regularizing or making permanent, those not duly appointed as\n            per the constitutional scheme." (emphasis added)12. A reference to para 53 above in the case ofUmadevi(supra)\n            shows that irregular appointments were to be regularized only as\n            a one-time measure.One time measure by its plain and simple\n            language means that only for once at the time of passing of the\n            judgment inUmadevi's case (supra) there can be regularization\n            of irregularly appointed employees ie after the decision inUmadevi's case (supra), there cannot be regularization of\n            appointees who are irregularly appointed i.e the appointments\n            may not be illegal and only are irregular in the sense that\n            appointment is not through the means of calling of eligible\n            candidates vide circulations in newspapers for ensuring\n            competition amongst the eligible candidates but even such\n            persons cannot be regularized after the decision in Umadevi's\n            case (supra) as even irregular appointments are in violation of\n            recruitment rules and there cannot be violation of recruitment\n            rules postUmadevi's case (supra).Therefore, in my opinion, the\n            ratio of para 53 above ofUmadevi's case (supra) makes it clear\n            that the issue of regularization of irregularly appointed\n            employees postUmadevi's case (supra) is time and again not\n            permissible because that is exactly what the ratio of Umadevi's\n            case (supra) prohibits i.e regularization of persons appointed in\n            violation of recruitment rules which will require calling of\n            candidates by proper advertisements through newspapers.13. I may note that a Division Bench of two judges of the\n            Supreme Court in the case ofU.P. State Electricity Board Vs.\n            Pooran Chandra Pandey and Others(2007) 11 SCC 92 sought to\n            water-down the ratio of the Constitution Bench judgment of the\n            Supreme Court in the case ofUmadevi(supra), and thisLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                               Page 25 of 50judgment of a Division Bench of the two Judges of Supreme\n            Court was specifically overruled by a Division Bench of three\n            Judges of the Supreme Court in the case of Official Liquidator\n            Vs. Dayanand and Others (2008) 10 SCC 1.In Dayanand's case\n            (supra) the Supreme Court has made very strong observations\n            that a Division Bench of two or three judges of the Supreme\n            Court cannot be allowed to water-down the categorical ratio\n            of the Constitution Bench judgment of the Supreme Court in\n            the case ofUmadevi(supra) and made observations with\n            respect to judicial discipline with respect to Benches of similar\n            number of Judges being bound by the judgments passed by a\n            Bench consisting of similar or larger number of judges.These\n            observations are contained in paras 75 to 77 and 90 to 92 in\n            Dayanand's case (supra) and these paras read as under:-"75. By virtue ofArticle 141of the Constitution, the judgment\n            of the Constitution Bench inState of Karnataka v. Umadevi(3) (supra) is binding on all the courts including this Court\n            till the same is overruled by a larger Bench.The ratio of the\n            Constitution Bench judgment has been followed by different\n            two-Judges Benches for declining to entertain the claim of\n            regularization of service made by ad hoc/temporary/ daily\n            wage/casual employees or for reversing the orders of the High\n            Court granting relief to such employees - Indian Drugs and\n            Pharmaceuticals Ltd. v. Workmen : (2007) 1 SCC 408,\n            Gangadhar Pillai v. Siemens Ltd.: (2007) 1 SCC 533, Kendriya\n            Vidyalaya Sangathan v. L.V. Subramanyeswara: (2007) 5 SCC\n            326, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh: (2007)\n            6 SCC 207.However, inU.P. SEB v. Pooran Chandra Pandey:(2007) 11 SCC 92 on which reliance has been placed by Shri\n            Gupta, a two-Judges Bench has attempted to dilute the\n            Constitution Bench judgment by suggesting thatthe said\n            decisioncannot be applied to a case where regularization has\n            been sought for in pursuance ofArticle 14of the Constitution\n            and that the same is in conflict with the judgment of the seven-Judges Bench inManeka Gandhi v. Union of India: (1978) 1\n            SCC 248.LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                               Page 26 of 5015. It is therefore clear that the ratio of the judgment in the case\n            ofUmadevi(supra) really prevents regularization of persons\n            who have been appointed pursuant to such an advertisement and\n            which advertisement itself required employment only for a\n            limited period, and therefore such persons who have been\n            appointed for a limited period in terms of the advertisement\n            requiring their appointments for limited periods, cannot seek\n            regularization."(emphasis is mine)\n            xxxxxxxxxxxxxxxxx\n            Once Supreme Court has allowed a scheme of regularization to\n            be framed only once as per the ratio of para 53 of Umadevi's\n            case (supra) restricted to those employees who had worked for\n            ten years prior to the passing of the judgment inUmadevi's case\n            (supra), then the law is that there cannot be schemes for\n            regularization of contractually appointed persons (being\n            irregular appointees) who are appointed for contractual periods\n            after passing of the judgment inUmadevi's case (supra).8. The second prayer of the petitioners is that petitioners should\n            not be replaced by other set of contractual employees, and to\n            which legal position there is no dispute in view of the judgment\n            of the Supreme Court in the case ofState of Haryana and\n            Others Vs. Piara Singh and Others(1992) 4 SCC 118, and\n            accordingly this relief prayed by the petitioners is granted that\n            petitioners cannot be replaced by similarly situated\n            employees except of course that in case there are legally valid\n            reasons for not continuing the petitioners in their contractual\n            services such as misconduct or other valid reasons as per law,\n            then the respondent no.3 need not continue contractual services,\n            however, reasons for not continuing the contractual\n            employees will be made known to the petitioners by speaking\n            orders and in case petitioners are not satisfied with the speaking\n            orders then the petitioners can always challenge such orders in\n            accordance with law.9. In view of the above, the writ petitions are dismissed to the\n            extent of petitioners seek regularization of their services,LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 27 of 50however, petitioners are granted the relief that they will not be\n            replaced/dispensed with by similarly situated contractual\n            employees, however, reserving liberty in the respondent\n            no.3/employer to not continue the contractual services for valid\n            legal reasons.8.5             In citation titledThe State of Bihar v. Devendra\n    Sharmain Civil Appeal No. 7879 of 2019 (2020) 15 SCC 466\n    dated 17.10.2019 from the Hon'ble Supreme Court of India it was\n    held that an ad-hoc appointment is only a contingent appointment.\n    Permanent vacancies should only be followed by regular\n    recruitment process. Doctrine of legitimate expectation for illegal\n    appointees and non regular appointees does not come into play as\n    temporary employment, contractual or casual employees selection\n    is not based on by proper recognised rules or procedure. He is\n    aware of consequences of her appointment being temporary, casual\n    or contractual in nature. The beneficiary of legitimate expectation\n    must show depriving her from some advantage she had been\n    permitted or some assurance has been received from the\n    administrative authorities which would not be withdrawn without\n    affording him opportunity of being heard. In the present case there\n    was no such assurance is proved by the workwoman on record.\n    There is Competent Authority for regular appointment andLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                               Page 28 of 50therefore the workwoman herein must show that they were\n    appointed by the Competent Authority against sanctioned post.\n    Illegal appointment without any method of recruitment and back\n    door entries is an act of nepotism and favoritism which are\n    therefore not irregular appointments but are illegal appointments.\n    The relevant citation is reproduced hereasunder:17) When the present set of appeals came up for hearing before\n            this Court on April 3, 2018, this Court found the following four\n            categories of cases:"(i) Appointments made on the basis of forged appointment\n            letter. They are at S.Nos. 2 to 48.(ii) Appointments made on the basis of forged nursing\n            registration certificate. They are at S. Nos. 49-50-51.(iii) Appointments made by a person who was not competent to\n            make the appointment. They are at S.Nos. 52 to 92.(iv) There is a residual category at S.NO. 1 i.e. appointment\n            made by Dr. A.A. Mallick, Dy. Director, T.B. and S. Nos. 93 &\n            94 who are now claiming appointment. Their cases will be dealt\n            with separately."18) The first category of cases was decided by three Judge\n            Bench in Kirti Narayan Prasad on November 30, 2018 wherein,\n            it was held as under:"17. In the instant cases the writ petitioners have filed the\n            petitions before the High Court with a specific prayer to\n            regularize their service and to set aside the order of termination\n            of their services. They have also challenged the report submitted\n            by the State Committee. The real controversy is whether the writ\n            petitioners were legally and validly appointed. The finding of theLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 29 of 50State Committee is that many writ petitioners had secured\n            appointment by producing fake or forged appointment letter or\n            had been inducted in Government service surreptitiously by\n            concerned Civil Surgeon-cum-Chief Medical Officer by issuing\n            a posting order. The writ petitioners are the beneficiaries of\n            illegal orders made by the Civil Surgeon-cum-Chief Medical\n            Officer. They were given notice to establish the genuineness of\n            their appointment and to show cause. None of them could\n            establish the genuineness or legality of their appointment before\n            the State Committee. The State Committee on appreciation of\n            the materials on record has opined that their appointment was\n            illegal and void ab initio. We do not find any ground to disagree\n            with the finding of the State Committee.In the circumstances,\n            the question of regularisation of their services by invoking\n            para 53 of the judgment inUmadevi(supra) does not arise.\n            Since the appointment of the petitioners is ab initio void, they\n            cannot be said to be the civil servants of the State. Therefore,\n            holding disciplinary proceedings envisaged byArticle 311of the\n            Constitution or under any other disciplinary rules shall not\n            arise."19) The cases in the second category i.e. appointment on the\n            basis of forged nursing registration stands on the same footing as\n            category one though it is argued by the appellants in three\n            appeals that nursing registration certificate is not forged but the\n            matriculation certificate on the basis of which the candidates\n            have undergone Auxiliary Nurse Mid-Wife 10 course was found\n            to be forged. The State Committee has found that ANM\n            certificate is a forged certificate. Even if, the certificate of ANM\n            is not forged as argued before this Court but the Matriculation\n            Certificate is said to be forged, the fact is that the educational\n            qualification, a pre-condition for undergoing nursing course, was\n            found to be forged. Therefore, the forgery is in the basic\n            eligibility condition to undertake ANM course, which will vitiate\n            the process of appointment. For the reasons recorded in Kirti\n            Narayan Prasad, Civil Appeal Nos. 7906 of 2019, 7919 of 2019\n            and 7920 of 2019 are dismissed.LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 30 of 5020) Coming to third category of cases, Mr. Mukherjee, learned\n            counsel for the State referred to the separate Government\n            Circulars dated December 3, 1980 in respect of Class III and\n            Class IV category posts. It is contended that appointments on\n            such circulars have been found to be illegal by this Court in\n            Ashwani Kumar, which view was in fact, approved later by\n            Constitution Bench judgment in Uma Devi, wherein this Court\n            held as under:"33. It is not necessary to notice all the decisions of this Court\n            on this aspect. By and large what emerges is that regular\n            recruitment should be insisted upon, only in a contingency can\n            an ad hoc appointment be 10 for short, 'ANM' made in a\n            permanent vacancy, but the same should soon be followed by a\n            regular recruitment and that appointments to non- available\n            posts should not be taken note of for regularisation. The\n            cases directing regularisation have mainly proceeded on the\n            basis that having permitted the employee to work for some\n            period, he should be absorbed, without really laying down any\n            law to that effect, after discussing the constitutional scheme for\n            public employment.xx xx xx53. One aspect needs to be clarified. There may be cases where\n            irregular appointments (not illegal appointments) as explained in\n            S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] ,\n            R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and\n            B.N.\n            Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3\n            SCR 937] and referred to in para 15 above, of duly qualified\n            persons in duly sanctioned vacant posts might have been made\n            and the employees have continued to work for ten years or more\n            but without the intervention of orders of the courts or of\n            tribunals. The question of regularisation of the services of such\n            employees may have to be considered on merits in the light of\n            the principles settled by this Court in the cases above-referred to\n            and in the light of this judgment................" (EmphasisLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 31 of 50Supplied)21) In Uma Devi, the argument that the employees have\n            legitimate expectations was negated when this Court held as\n            under:"46. .............. The doctrine can be invoked if the decisions\n            of the administrative authority affect the person by depriving\n            him of some benefit or advantage which either ( i) he had in\n            the past been permitted by the decision-maker to enjoy and\n            which he can legitimately expect to be permitted to continue to\n            do until there have been communicated to him some rational\n            grounds for withdrawing it on which he has been given an\n            opportunity to comment; or (ii) he has received assurance from\n            the decision-maker that they will not be withdrawn without\n            giving him first an opportunity of advancing reasons for\n            contending that they should not be withdrawn... There is no case\n            that any assurance was given by the Government or the\n            department concerned while making the appointment on daily\n            wages that the status conferred on him will not be withdrawn\n            until some rational reason comes into existence for withdrawing\n            it. The very engagement was against the constitutional scheme.\n            Though, the Commissioner of the Commercial Taxes\n            Department sought to get the appointments made permanent,\n            there is no case that at the time of appointment any promise was\n            held out. No such promise could also have been held out in view\n            of the circulars and directives issued by the Government after\n            Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 :\n            (1990) 12 ATC 902 : (1990) 1 SCR 544] . Though, there is a\n            case that the State had made regularisations in the past of\n            similarly situated employees, the fact remains that such\n            regularisations were done only pursuant to judicial directions,\n            either of the Administrative Tribunal or of the High Court and in\n            some cases by this Court....47. When a person enters a temporary employment or gets\n            engagement as a contractual or casual worker and the\n            engagement is not based on a proper selection as recognised\n            by the relevant rules or procedure, he is aware of theLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                               Page 32 of 50consequences of the appointment being temporary, casual or\n            contractual in nature. Such a person cannot invoke the theory of\n            legitimate expectation for being confirmed in the post when an\n            appointment to the post could be made only by following a\n            proper procedure for selection and in cases concerned, in\n            consultation with the Public Service Commission. Therefore, the\n            theory of legitimate expectation cannot be successfully\n            advanced      by     temporary,     contractual    or     casual\n            employees...."22) The State Committee has examined all the appointments and\n            segregated appointments based on forged documents and also\n            irregular appointments. Once the detailed report has been\n            submitted examining the merit of each candidate, and when the\n            judgment of this Court in Ashwani Kumar and Uma Devi\n            conclusively answer the questions against the employees, no\n            further discussion on the arguments raised would survive.\n            However, since the arguments have been addressed in respect of\n            the third category of cases i.e. appointments made by a\n            person who was not competent to make the appointments,\n            we shall consider as to what will be the effect of such\n            appointments.31) Though, certain appointments have been made by Civil\n            Surgeon which Mr. Mukherjee does not dispute as he was the\n            competent authority but it is argued that none of the\n            requirements to fill up the public post was adhered to.\n            Appointments were made to the public posts without following\n            any procedure and without there being any sanctioned post.37) Such judgment of the Full Bench was approved by three\n            Judge Bench of this Court in a Judgment reportedR.\n            Vishwanatha Pillai v. State of Kerala & Ors.12. This Court held\n            as under: 11 AIR 1988 Patna 26 12 (2004) 2 SCC 105 "17.The\n            point was again examined by a Full Bench of the Patna High\n            Court inRita Mishra v. Director, Primary Education, Bihar[AIR\n            1988 Pat 26 : 1988 Lab IC 907 : 1987 BBCJ 701 (FB)] . The\n            question posed before the Full Bench was whether a public\n            servant was entitled to payment of salary to him for the workLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                              Page 33 of 50done despite the fact that his letter of appointment was forged,\n            fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13)\n            "13. It is manifest from the above that the rights to salary,\n            pension and other service benefits are entirely statutory in\n            nature in public service. Therefore, these rights, including the\n            right to salary, spring from a valid and legal appointment to\n            the post. Once it is found that the very appointment is illegal\n            and is non est in the eye of the law, no statutory entitlement\n            for salary or consequential rights of pension and other monetary\n            benefits can arise. In particular, if the very appointment is rested\n            on forgery, no statutory right can flow from it."41) This Court inUnion of India & Anr. v. Raghuwar Pal\n            Singh15was examining a case, where the appointment letter\n            came to be issued without approval of the competent authority,\n            then whether such appointment letter issued to the respondent,\n            would be a case of nullity or a mere irregularity? If it is a case of\n            nullity, affording opportunity to the incumbent 13 (2007) 8 SCC\n            249 14 (2009) 5 SCC 65 15 (2018) 15 SCC 463 would be a\n            mere formality and non-grant of opportunity may not vitiate the\n            final decision of termination of his services. This Court held that\n            in absence of prior approval of the competent authority, the\n            Director Incharge could not have hastened issuance of the\n            appointment letter. The act of commission and omission of the\n            Director Incharge would, therefore, suffer from the vice of lack\n            of authority and nullity in law.42) InNidhi Kaim & Anr. v. State of Madhya Pradesh & Ors.16,\n            a three Judge Bench was dealing with admission of students to\n            MBBS Course on the basis of illegal and unfair admission\n            process. The Court held as under:"92. ...Having given our thoughtful consideration to the above\n            submission, we are of the considered view that conferring rights\n            or benefits on the appellants, who had consciously\n            participated in a well thought out, and meticulously\n            orchestrated plan, to circumvent well laid down norms, for\n            gaining admission to the MBBS course, would amount toLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                  Page 34 of 50espousing the cause of "the unfair". It would seem like\n            allowing a thief to retain the stolen property. It would seem as\n            if the Court was not supportive of the cause of those who had\n            adopted and followed rightful means. Such a course would cause\n            people to question the credibility of the justice-delivery system\n            itself. The exercise of jurisdiction in the manner suggested on\n            behalf of the appellants would surely depict the Court's\n            support in favour of the sacrilegious. It would also\n            compromise the integrity of the academic community. We are of\n            the view that in the name of doing complete justice it is not 16\n            (2017) 4 SCC 1 possible for this Court to support the vitiated\n            actions of the appellants through which they gained admission to\n            the MBBS course.xx xx xx44) In view of the aforesaid judgments, it cannot be said that the\n            appointment of the employees in the present set of appeals 17\n            (2017) 8 SCC 670           were irregular appointments. Such\n            appointments are illegal appointment in terms of the ratio of\n            Supreme Court judgment in Uma Devi. As such appointments\n            were made without any sanctioned post, without any\n            advertisement giving opportunity to all eligible candidates to\n            apply and seek public employment and without any method of\n            recruitment. Such appointments were backdoor entries, an act\n            of nepotism and favoritism and thus from any judicial\n            standards cannot be said to be irregular appointments but are\n            illegal appointments in wholly arbitrary process.8.6             In view of above discussion, it is found that the\n    employment of workwoman herein was in the nature of daily\n    wager. It was not by method of regular recruitment process. Hence\n    their status as a daily wager which is continuous in nature has to be\n    protected. It is already discussed above in citation titledAnilLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 35 of 50Lamba & Ors. v. Govt. of NCT(supra) at para no. 8 that when\n    petitioners are contractual employees then they can not be placed\n    by similarly situated employees except of course that in case there\n    are legally valid reasons. The reasons must be communicated to\n    the workwoman by speaking orders which they always have right\n    to challenge in accordance with law. In such view of the matter in\n    the present case the workwoman herein were in employment of the\n    management for more than 10 years. The protection is not\n    available to them as a regular employee. However they are entitled\n    to protection as a daily wager/contractual employees. The issuance\n    of appointment letter to the workwoman must be proved by the\n    workwoman on record by showing that their regular appointment\n    was made on the basis of settled rules and principles by Competent\n    Authority against sanctioned post. This is not proved by the\n    workwoman on record. Public advertisement must have been\n    shown to have been issued which is not proved in this case. The\n    burden of proof is on the workwoman to show that she was a\n    regular appointee which she failed to show. However she has\n    sufficiently proved on record that she is a daily wager/contractual\n    employee rendered more than 10 year long period of service for\n    which she is entitled to protection u/Sec. 25F of Industrial Disputes\n    Act, 1947. It is not the defence of the management that they do notLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                    Page 36 of 50need workwoman against the existing work and did not employ\n    further workwoman in future after such termination of the\n    workwoman herein. Hence the workwoman is found contractual\n    employee/daily wager which needs to be protected herein.\n    Therefore it is held that the termination of the workwoman as a\n    daily wager/contractual employee by the management is illegal\n    and arbitrary without following due process for which workwoman\n    is held entitled for immediate reinstatement.8.7             The management has submitted that it has conducted\n    vigilance inquiry. However no report of vigilance inquiry was\n    placed on record. Even if any vigilance inquiry was conducted or it\n    was concluded then also it cannot be imputed against the\n    workwoman for the sole reason that no opportunity of being heard\n    had been granted to the workwoman. In absence of any such\n    opportunity the workwoman could not have replied or defend the\n    allegations against him. No notice was given to the workwoman\n    nor any chargesheet was issued which could culminate as a final\n    report against the workwoman. The necessary law and supporting\n    citation is reproduced hereasunder:Sachiv Krishi Upaj Mandi Samiti, Sanawad v. Mahendra\n                KumarS/o Mangilal Tanwarao, 2004 LLR 405 = 2003\n                SCC OnLine MP 720 : (2004) 101 FLR 176 (MP) : (2004)LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                       Page 37 of 504 LLJ (Supp) (NOC 307) 953 : 2004 LLR 405 that if the\n                termination of an employee is based on no inquiry, no charge\n                and not by way of punishment, then it becomes a case of\n                illegal retrenchment. In such case, the workman will be\n                entitled to reinstatement with full back wages.4. Parties led evidence. It was, however, concluded on facts\n                and evidence that respondent has worked continuously for\n                more than 240 days in one calendar year, that no charge-sheet or any inquiry was held prior to his termination, that\n                no retrenchment compensation was paid prior to impugned\n                termination, and that it was a case of dismissal without any\n                basis or charge.5. Learned Counsel for the petitioner was unable to point out\n                to me any mistake of law or fact in the impugned award, in so\n                far as the aforementioned findings of facts were concerned.\n                These findings are the only findings which need to be\n                rendered on facts and evidence. Indeed, in order to attract the\n                protection of labour laws, these are the only issues which\n                need to be examined on facts on both sides. As observed\n                supra, if the termination of an employee is based on no\n                inquiry, no charge and not by way of punishment, then it\n                becomes a case of illegal retrenchment. If an employee has\n                worked for more then 240 days in one calendar year then\n                he is entitled to have the protection of Labour Laws\n                provided the employer is an Industry subjected to Labour\n                Laws.6. Learned Counsel for the petitioner contended that no order\n                for payment of back wages could be given. I do not agree to\n                this submission, as it has no merit. Firstly, once the\n                termination is held to be bad in law then directions to pay\n                back wages is a natural consequence and has to follow. It is\n                only when the employer (as in this case petitioner) is able to\n                show and prove that terminated employee was working for\n                gains even after termination, the order for payment of backLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 38 of 50wages will not be passed.7.7. The burden to prove that employee was working for\n                gains after termination lies on the employer. In the\n                absence of any evidence not tendered, the direction to pay\n                back wages has to follow. It is, however, necessary for the\n                employee to state on oath that he remained unemployed\n                after the termination of his service. In this case, the\n                petitioner failed to lead any evidence on this issue against the\n                respondent and on the other hand, the respondent did say that\n                he remained unemployed. In view of this, the direction to pay\n                back wages cannot be said to be illegal or unreasonable once\n                it was held that termination is bad in law.In view of above it is held that the management has\n    illegally and unjustifiably terminated the workwoman without\n    following the principle of natural justice.9.              Hence termination of workwoman on the basis of\n    termination/disengagement order dated 09.05.2012 is therefore held\n    illegal. It was held in case titledM.G. Umamahesh And Ors. v.\n    The State of Karnataka, dated 12th August, 2003 Equivalent\n    citations: ILR 2003 KAR 3672 from Hon'ble High Court of\n    Karnataka wherein it was held at para no. 12 and 13 that once the\n    service are regularised then order of cancellation or withdrawal of\n    employees had acquired a vested right. Opportunity of hearing\n    should be granted to them to put forth their case. Non grant of suchLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 39 of 50opportunity leads to remanding matter back to redo the same. A\n    fresh affording of opportunity of hearing. The relevant paras are\n    reproduced hereasunder:12. Sri V. Lakshminarayan, learned Counsel for the\n                petitioners, nextly contends that the second respondent\n                without affording an opportunity of hearing to the petitioners\n                could not have passed the impugned order and, therefore, the\n                same is in violation of principles of natural justice.In the present case, by an order made on 5.11.1999, the\n                services of the petitioners came to be regularised as Assistant\n                Plantation Superintendents. By this, they have acquired a\n                vested right and a new status. Any person can ill-afford to\n                lose that status and also the monetary benefits attached to\n                that status. If the authority intends to de-recognise the\n                status once conferred, that a person against whom an\n                order to his prejudice may be passed should be informed\n                the    tentative      opinion    of    the     authority    for\n                cancellation/withdrawal of the earlier order and give him\n                an opportunity to offer his explanation, if any, and then\n                only pass an order. This exercise is done by the\n                respondent authority. This would satisfy the requirements\n                of principles of natural justice. Therefore, the impugned\n                order cannot be straight away condemned as one made\n                without following the principles of natural justice. However,\n                Sri Lakshminarayan, learned Counsel for the petitioners\n                would contend that the principle 'no one shall be condemned\n                un-heard' applies event to administrative orders. In the facts\n                and circumstances of the present case, according to learned\n                Counsel, apart from issuing a show cause notice, the\n                authority passing order should have also granted a personal\n                hearing to the persons who would be effected by the tentative\n                opinion of the authority, since the tentative opinion expressed\n                in the show cause notice, if it is confirmed would adversely\n                affects the status and/or privileges of the petitioners.\n                Therefore, submits that the respondent authority withoutLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 40 of 50affording an opportunity of personal hearing to the petitioners\n                could not have passed the impugned order.13. Sri M. Kumar, learned Counsel for the respondent\n                authority, after obtaining appropriate instructions from the\n                respondent authorities would firstly submits that the\n                respondents before passing the impugned order had afforded\n                an opportunity of "hearing" to the petitioners by issuing them\n                a show cause notice and further directing them to offer their\n                explanation, if any and this procedure would satisfy the\n                requirement of principles of natural justice, and inspire of it,\n                if the petitioners are of the view, that they should be heard in\n                the matter, the respondent authority would give them an\n                opportunity of oral hearing and pass a fresh order. The\n                Submission of the learned Counsel is very fair and just. That\n                only shows that the respondents do not have any animus\n                against the petitioners nor they intend to deprive them their\n                lawful rights, if they so deserve. The stand of the respondents\n                really requires to be appreciated by this Court, for the sole\n                reason, that they do not intend to stand on technical\n                formalities.In view of the submission of the learned Counsel, it may not\n                be necessary for this Court to express its view on the issue,\n                whether the show cause notice issued by the respondents\n                directing the petitioners to show cause against their tentative\n                opinion would satisfy the requirements of principles of\n                natural justice and whether was it absolutely necessary for the\n                respondents to have afforded the petitioners an opportunity of\n                hearing before framing the impugned order.Before I conclude, let me refer to the case law on which\n                reliance was placed by the learned Counsel for the\n                petitioners. The learned counsel firstly relies upon the\n                observations made by the apex court inNarasingha Patra and\n                another's case. Inthe said decision, the pay scales of the\n                Matriculates, who had undertaken ITI training, had been\n                fixed at Rs. 300-410. That came to be modified by a\n                subsequent order, after notice to the appellants therein, but anLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 41 of 50opportunity of hearing had not been granted. The appellants\n                therein had approached the Central Administrative Tribunal.\n                The Tribunal was of the view that since show cause notice\n                was issued to the appellants, there was total compliance of\n                the principles of natural justice. Therefore, had rejected the\n                application filed by the appellants. Aggrieved by that order,\n                the appellants therein had approached the Supreme Court.\n                Before the Supreme Court, a specific contention was\n                taken that the appellants were not heard in the matter\n                and without hearing them, an order withdrawing the\n                earlier benefits granted to them could not have been\n                made. While considering this issue, the Apex Court was\n                pleased to observe as under:"We heard the Counsel. We are of the view that in the\n                totality of the circumstances the representations\n                submitted by the appellants should be considered afresh\n                after giving them an opportunity of being heard. The State\n                Government shall do so within a period of three months from\n                today and pass appropriate orders. The State Government\n                shall not feel fettered by any of the observations contained in\n                the order of the Tribunal. Pending the disposal of the\n                representations, no recovery of amount alleged to have been\n                paid shall be made."The other case law on which reliance was placed on is the\n                case ofDirector, ESI Scheme, Orissa and Anr. v. Dr. Sabita\n                Mohanty (SMT.) reported in 1995 SCC (L and S) 865,\n                wherein the Hon'ble Apex Court was pleased to observe as\n                under:"We are afraid, this perception of the tribunal as to the ends of\n                justice and their expeditious attainment prevailing over the\n                delays inherent in what the tribunal assumes to be a\n                dispensable formality of the filing of a counter and hearing of\n                the other side is wholly erroneous and entirely unsupportable.\n                Indeed, these words of Lord Wright in General Medical\n                Council v. Spackman are worth recalling;LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                  Page 42 of 50"If the principles of natural justice are violated in respect\n                of any decision, it is, indeed, immaterial whether the same\n                decision would have been arrived at in the absence of the\n                departure from the essential principles of justice. The\n                decision must be declared to be no decision."xxxxxxxxxx10.             The workwoman has failed to show violation ofSection\n    25Gof Industrial Disputes Act, 1947 as the burden of proof is on\n    the workwoman first to prove that there was such category of\n    person as "Safai Karamchari" by designation who were so\n    categorized and their seniority list was prepared. He has also to\n    prove that where he stood in such seniority list. In such\n    circumstances of the case, it is held that workwoman has failed to\n    discharge burden of proof in view of above provision of law and\n    therefore it is held that workwoman is not entitled to benefit ofSection 25Gof Industrial Disputes Act, 1947. The relevant citation\n    titledMCD v. Rajpal2011 SCC Online Delhi 2048 from Hon'ble\n    High Court of Delhi at para no. 8 and 13 is reproduced\n    hereasunder:-8. It is correct that to applySection 25Gof the Act, it is not\n                necessary that the workman should have worked for 240 days\n                in a calendar year. At the same time, a person is not entitled\n                to benefit underSection 25Gof the Act if conditions required\n                are not fulfilled/satisfied. While onus on many a condition is\n                on the management, but onus regarding "particular category"LIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 43 of 50is on the workman.InRegional Manager, SBI vs. Rakesh\n                Kumar Tewari, 2006 (1) SCC 530, it has been observed by\n                the Supreme Court:"14.Section 25Grequires the employer to "ordinarily\n                retrench the workman who was the last person to be\n                employed in a particular category of workman unless for\n                reasons to be recorded the employer retrenches any other\n                workman". This "last come first go" rule predicates (1) that\n                the workman retrenched belongs to a particular category (2)\n                that there was no agreement to the contrary and (3) that the\n                employer had not recorded any reasons for not following the\n                principle. These are all questions of fact in respect of which\n                evidence would have to be led, the onus to prove the first\n                requirement being on the workman and the second and third\n                requirements on the employer. Necessarily a fair opportunity\n                of leading such evidence must be available to both parties.\n                This would in turn entail laying of a foundation for the case\n                in the pleadings. If the plea is not put forward such an\n                opportunity is denied, quite apart from the principle that no\n                amount of evidence can be looked into unless such a plea is\n                raised. [See Siddik Mahomed Shah v. Mt. Saran;Bondar\n                Singh and Ors. v. Nihal Singh and Ors.]."13. We also find that the pleadings in the present case relating\n                toSection 25Gare vague even in the affidavit by way of\n                evidence filed by the respondents, (copy of such affidavit\n                filed by Rajpal, is available on record), at best is ambiguous.\n                It is merely alleged that there has been violation of Section\n                25F, G and H of the Act read with Rules 76, 77 and 78 of the\n                Industrial Disputes Central Rules, 1957. No other details,\n                facts and particulars have been stated.The case of the workwoman is not retrenchment\n    simplicitor but alleged allegations of fraud as to the identity of the\n    workwoman and also manipulation were made during terminationLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 44 of 50of the workwoman. Therefore the above allegations are affecting\n    integrity of the workwoman which may also affect her future\n    employment prospect. The above allegations are unsubstantiated\n    which are found baseless and cannot be sustained under law.Accordingly, present issue is decided in favour of\n    workwoman and against the management.11. R E L I E F\n\n\n    11.1            The workwoman has pleaded in the prayer clause of\n    statement of claim at para no. 4 and para no. 10 of the evidence by\n    way of affidavit Ex.WW1/A that she is unemployed till date since\n    the date of her illegal termination. The burden of proof that the\n    workwoman is employed since the date of her illegal termination is\n    on management for which management failed to substantiate this\n    fact in evidence. Hence it is held that workwoman was\n    unemployed during the period of her illegal termination.11.2            It is already held above that the service of the\n    workwoman                was           terminated   illegally   and   unjustifiably.\n    Management has submitted that service of the workwoman was\n    terminated since long on 09.05.2012 and after such a long passageLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                   Page 45 of 50of time reinstatement may not be allowed to the workwoman.\n    However the relevant citation in this regard is reproduced\n    hereasunder which has laid down the law that once it is proved on\n    record that the service of the workwoman is terminated illegally\n    and unjustifiably for no fault of workwoman then not allowing\n    reinstatement would amount to granting premium to the\n    wrongdoer/management against the victim/workwoman. This is not\n    permissible under law. The relevant citation is reproduced\n    hereasunder:In the case titledDeepali Gundu Surwase v. Kranti Junior\n            Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324 wherein\n            the concept of reinstatement was also discussed."38.1. In cases of wrongful termination of service,\n                reinstatement with continuity of service and back wages is\n                the normal rule.38.2 The aforesaid rule is subject to the rider that while\n                deciding the issue of back wages, the adjudicating authority\n                or the court may take into consideration the length of service\n                of the employee/workman, the nature of misconduct, if any,\n                found proved against the employee/workman, the financial\n                condition of the employer and similar other factors.38.3 Ordinarily, an employee or workman whose services\n                are terminated and who is desirous of getting back wages is\n                required to either plead or at least make a statement before\n                the adjudicating authority or the court of first instance that\n                he/she was not gainfully employed or was employed on\n                lesser wages. If the employer wants to avoid payment of full\n                back wages, then it has to plead and also lead cogentLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 46 of 50evidence to prove that the employee/workman was gainfully\n                employed and was getting wages equal to the wages he/she\n                was drawing prior to the termination of service. This is so\n                because it is settled law that the burden of proof of the\n                existence of a particular fact lies on the person who makes a\n                positive averment about its existence. It is always easier to\n                prove a positive fact than to prove a negative fact. Therefore,\n                once the employee shows that he was not employed, the onus\n                lies on the employer to specifically plead and prove that the\n                employee was gainfully employed and was getting the same\n                or substantially similar emoluments.38.4 The cases in which the Labour Court/Industrial Tribunal\n                exercises power underSection 11-Aof the Industrial Disputes\n                Act, 1947 and finds that even though the enquiry held against\n                the employee/workman is consistent with the rules of natural\n                justice and/or certified standing orders, if any, but holds that\n                the punishment was disproportionate to the misconduct found\n                proved, then, it will have the discretion not to award full back\n                wages. However, if the Labour Court/Industrial Tribunal\n                finds that the employee or workman is not at all guilty of\n                any misconduct or that the employer had foisted a false\n                charge, then there will be ample justification for award or\n                full back wages.38.5        The cases in which the competent court or tribunal\n                finds that the employer has acted in gross violation of the\n                statutory provisions and/or the principles of natural justice\n                or is guilty of victimising the employee or workman, then the\n                court or tribunal concerned will be fully justified in\n                directing payment of full back wages. In such cases, the\n                superior courts should not exercise power underArticle 226or 136 of the Constitution and interfere with the award passed\n                by the Labour Court, etc. merely because there is a possibility\n                of forming a different opinion on the entitlement of the\n                employee/workman to get full back wages or the employer's\n                obligation to pay the same. The courts must always keep inLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                 Page 47 of 50view that in the cases of wrongful/illegal termination of\n                service, the wrongdoer is the employer and the sufferer is the\n                employee/workman and there is no justification to give a\n                premium to the employer of his wrongdoings by relieving\n                him of the burden to pay to the employee/workman his dues\n                in the form of full back wages.38.6       In a number of cases, the superior courts have\n                interfered with the award of the primary adjudicatory\n                authority on the premise that finalisation of litigation has\n                taken long time ignoring that in majority of cases the\n                parties are not responsible for such delays. Lack of\n                infrastructure and manpower is the principal cause for delay\n                in the disposal of cases. For this the litigants cannot be\n                blamed or penalised. It would amount to grave injustice to\n                an employee or workman if he is denied back wages simply\n                because there is long lapse of time between the termination of\n                his service and finality given to the order of reinstatement.\n                The courts should bear in mind that in most of these cases,\n                the employer is in an advantageous position vis-a-vis the\n                employee or workman. He can avail the services of best legal\n                brain for prolonging the agony of the sufferer i.e. the\n                employee or workman, who can ill-afford the luxury of\n                spending money on a lawyer with certain amount of frame.\n                Therefore, in such cases it would be prudent to adopt the\n                course suggested inHindustan Tin Works (P) Ltd. v.\n                Employees".11.3            In view of findings under issues above it is held that this\n    case falls under the category of illegal retrenchment in violation of\n    principle ofSec. 25Fof Industrial Disputes Act, 1947 without any\n    justification and non compliance of principles of natural justice.\n    Accordingly it is held that workwoman is held entitled and grantedLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                Page 48 of 50the following reliefs:(i) Immediate reinstatement         from   the   date   of\n            publication of this Award with;(ii) The workwoman is held entitled to full back wages\n            as per grade and category of the workwoman herein\n            given to the employees by the management from the\n            date of filing of this statement of claim i.e. 23.04.2016\n            till the date of reinstatement with;(iii) All consequential benefits from the date of her\n            illegal termination till the date of her reinstatement.(iv) All the due amount be paid within one month of\n            the date of publication of present Award with interest\n            @6% per annum from the date of publication till its\n            realization.(v) The workwoman is also awarded the cost of\n            litigation for a total sum of Rs.20,000/- u/Sec. 11(7) ofIndustrial Disputes Act, 1947.Reference stands answered in the aforesaid terms.11.4            A copy of Award be sent to the Competent\n    Authority/appropriate Government i.e., Joint/Deputy Labour\n    Commissioner, Government of NCT of Delhi of Distt./Area\n    concerned for publication which thereafter become enforceable\n    u/Sec. 17A of Industrial Dispute Act, 1947. Award is passedLIR No. 7962/16Bebi v. East Delhi Municipal Corporation                        Page 49 of 50accordingly.File be consigned to record room after due compliance.Announced in the open Court\n    on 01.10.2022.           JOGINDER                Digitally signed by\n                                                     JOGINDER PRAKASH\n                                           PRAKASH   NAHAR\n                                                     Date: 2022.10.01\n                                           NAHAR     16:21:40 +0530\n\n                              (JOGINDER PRAKASH NAHAR)\n                         PRESIDING OFFICER LABOUR COURT-IX\n                      ROUSE AVENUE COURT COMPLEX /NEW DELHILIR No. 7962/16Bebi v. East Delhi Municipal Corporation                                   Page 50 of 50