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2006 DIGILAW 663 (DEL)

TULSI DEVI v. M. C. D

2006-04-04

S.RAVINDRA BHAT

body2006
S. RAVINDRA BHAT, J. ( 1 ) ISSUE Rule. Mr. Kanwar waives notice of the Rule. ( 2 ) WITH consent of parties, the writ petition is heard for disposal. ( 3 ) THE writ petitioners in these proceedings, claim directions to the respondent to quash an order dated 5/1/2004 and also to pay arrears of salary for the period October 2003 onwards. ( 4 ) THE uncontroverted facts of this case are that the petitioner joined the MCD as a temporary school attendent in 1974. She was appointed as permanent employee of the corporation on 6/1/1983. Prior to her absorption the petitioner was asked to submit an affidavit in respect of her date of birth on 6. 12. 1982. The affidavit averred the correct date of birth as 22. 10. 1945. ( 5 ) IT is claimed by petitioner that her elder son raised civil disputes and tried to grab some property which led to litigation. The elder son namely Om Prakash as well as the petitioner filed civil suits. The petitioner claimed that as a retaliatory step, sometime in 2001, Sh. Om prakash alleged that the petitioner had made a false declaration about her date of birth. This led MCD to issue an order requiring the petitioner s physical examination for determination of her age. Two reports have been placed on record. One seems to be favourable to the petitioner and the other pursuant to an examination which took place on 10/7/2003 states that the petitioner was about 60 years of age at that time. It is alleged that from October 2003, the petitioner was not allowed to mark her attendance. After she approached the Court, an interim order was issued and the petitioner was paid salary with effect from 15/2/2005. It is an admitted case of the parties that on 31/10/2005 the petitioner ceased to work since even on her own reckoning she has completed 60 years of age. ( 6 ) LEARNED counsel for the petitioner relies upon the judgment of the Supreme court reported as Municipal Corporation of Ludhiana Vs. Jeewan Singh 2002 (3) scale 704 to say that an employer cannot treat a permanent worker or an employee as having retired, attained the age or superannuation on redetermination of date of birth without issuing formal order or giving formal opportunity to the official. ( 7 ) MR. Jeewan Singh 2002 (3) scale 704 to say that an employer cannot treat a permanent worker or an employee as having retired, attained the age or superannuation on redetermination of date of birth without issuing formal order or giving formal opportunity to the official. ( 7 ) MR. Kanwar learned counsel for MCD submits that the petitioner s deposition in the course of civil proceedings shows that she had claimed to be of 65 years at the relevant time in 2002. This, coupled with advice of Medical Board led MCD to conclude that her date of birth was not 1945 but was some other earlier date. ( 8 ) IT is also claimed that pursuant to the order of Court the petitioner was allowed to join the duties with effect from 15. 2. 2005 and that after 31. 10. 2005 certain amounts have been disbursed to her towards pensionary and terminal dues. ( 9 ) THE above factual narration would show that the respondent did not issue any formal order by which the petitioner s age was redetermined. Undoubtedly the petitioner was examined physically and a certificate were made available to the mcd. That itself in my opinion did not end the matter. The MCD was under an obligation to re-determine what was correct date of birth and the correct date of the petitioner s superannuation. Neither has the MCD averred in its affidavit, any material was made available in the course of hearing that indeed such exercise was undertaken. In the absence of such an order the action of the mcd, as per the judgment in Jeewan Singh s case (Supra) amount to merely restraining the petitioner from reporting for duties, and cannot be countenanced, it would be arbitrary. It is far to well settled that any adverse order in respect of a person s civil rights (which includes employment) ought to be passed after following some fair procedure or granting adequate opportunity to the person likely to be affected. ( 10 ) IN the light of the above discussion, a direction is issued to the respondent mcd to pass appropriate order as to the correct date of birth of the petitioner after issuing show cause notice and granting proper opportunity to her. The order shall also deal with contentions raised by the petitioner, it would be a reasoned order. ( 10 ) IN the light of the above discussion, a direction is issued to the respondent mcd to pass appropriate order as to the correct date of birth of the petitioner after issuing show cause notice and granting proper opportunity to her. The order shall also deal with contentions raised by the petitioner, it would be a reasoned order. ( 11 ) IN view of the admitted position that even as per the petitioner s original declaration, she attained the age of superannuation on 30/10/2005, the respondent shall ensure that all the amounts which are to be disbursed to the petitioner towards pensionary and terminal dues, are in fact released within a period of six weeks from today. The speaking order directed by the Court shall be passed within 8 weeks from today. It is open to the petitioner to raise all the contentions. The writ petition is allowed to the extent indicated above. No costs. .