Himachal Pradesh High Court
Smt. Seema Mehta vs Chairman-Cum-Deputy Commissioner And ... on 8 May, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 5318 of 2013 .
Date of decision: 8.5.2015.
Smt. Seema Mehta ...... Petitioner
Vs.
Chairman-cum-Deputy Commissioner and another ..... Respondents Coram r to The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes 1 For the petitioner : Mr. Deepak Kaushal, Advocate.
For the respondents : Mr. Virender Kumar Verma, Ms. Meenakshi Sharma and Mr. Rupinder Singh, Additional Advocate Generals.
Tarlok Singh Chauhan, Judge (Oral).
The petitioner is aggrieved by the award passed by the learned Industrial Tribunal-cum-Labour Court, Shimla (for short 'Tribunal') dated 28.3.2013 whereby her claim for regular appointment to the post of PBX Clerk has been denied and has therefore, filed this writ petition seeking the following substantive relief:
"That the award dated 28.03.2013 (Annexure P-2) may kindly be quashed and set aside and same may kindly be declared illegal and the respondents may kindly be directed to give regular appointment to the petitioner in the post of PBX Clerk on regular basis as per the policy of the State."
2. On 10.1.1989 the petitioner was appointed in Indian Red Cross Society (for short 'Society') as Clerk-cum-Typist. This appointment was given by the Deputy Commissioner, Solan in the Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:08:35 :::HCHP ...2...
capacity of the Chairman of the Society and the emoluments of the petitioner were fixed at Rs.750/- per month.
.
3. Indisputably, the petitioner has been working in the said capacity till date. The petitioner had earlier approached the Tribunal for regularization of her services and reference was decided in her favour vide award dated 16.1.2007. However, the said award was challenged by the respondents by medium of CWP No. 259 of 2007 and the matter was remitted back to the Tribunal for considering two communications annexed as Annexures R-6 and R-7, respectively.
The Tribunal below vide its award dated 28.3.2013 rejected the claim of the petitioner on the ground that she is an employee of Red Cross Society, and therefore, her services cannot be regularized.
4. The petitioner has challenged this award on the ground that after having worked w.e.f. 10.1.1989, it was legitimate that her services to be regularized even if they had been rendered with the Indian Red Cross Society of which the Deputy Commissioner is the Chairman.
5. In response to the petition, the respondents in their reply have raised preliminary objection regarding maintainability of the petition and on merits, the factual averments have not been denied and the only ground to deny the claim of the petitioner is that she has never been on the pay role of the State.
6. I have heard learned counsel for the parties and also gone through the records of the case carefully.
7. The only reason which outweigh all other considerations before the Tribunal to deny the benefit of regularisation to the ::: Downloaded on - 15/04/2017 18:08:35 :::HCHP ...3...
petitioner was that the petitioner was not an employee of the State Government and, therefore, her services could not be regularised.
.
Even before this Court, the only contention raised by the respondents to defeat the legitimate claim of the petitioner is that respondent No.1 i.e. the Indian Red Cross Society is not the State within the meaning of Article 12 of the Constitution of India and thus is not amenable to the writ jurisdiction of this Court.
8. The issue regarding the Indian Red Cross Society being a State and amenable to writ jurisdiction is no longer res-integra in view of the judgment of the learned Single Judge of Punjab and Haryana High Court in Pant Raj Sachdev vs. The Indian Red Cross Society and others, 1986 (1) SLR 675, which in turn has been affirmed by a Division Bench of Punjab and Haryana High Court in The District Red Cross Society, Sirsa vs. Radha Kishan Rajpal and another, 2005 (1) SLR, 781, Om Parkash Sharma vs. Indian Red Cross Society, Punjab and another, 2005 (3) PLR, 271, Swaran Sharma vs. State of Haryana, 2007 (4) PLR, 526 and Division Bench judgment in Alka Ghai vs. J.R.Verma and others, LPA No. 176 of 2008, decided on 16.4.2009.
9. In view of the exposition of law laid down by the Punjab and Haryana High Court, it can conveniently be held that respondent No.1 is amenable to the writ jurisdiction of this Court and if that be so, it cannot shirk from its responsibility and liability for ensuring that a fair and reasonable treatment be meted out to the petitioner.
10. Indisputably, insofar as the State Government and other Boards/Corporations of the State are concerned, a decision to ::: Downloaded on - 15/04/2017 18:08:35 :::HCHP ...4...
regularise the services of all daily waged employees after completion of seven years of service, is already in vogue, but then can the .
petitioner, who has rendered nearly 26 years of service be denied her legitimate claim of regularisation? Can the Red Cross Society headed by the Deputy Commissioner, indulge in exploitation on the sheer strength of its unequal bargaining power?
11. A learned Division Bench of this Court in LPA No. 132 of 2014 titled Dr. Lok Pal vs. State of H.P., decided on 18.12.2014 was seized of a similar matter where the appointment of the person was though on a consolidated salary of Rs.43000/- per month but after his appointment he was actually paid Rs.21000/- per month and the learned Division Bench held this to be exploitation on the sheer strength of the unequal bargaining power and it was held as under:
"7. This case reflects a sorry state of affairs where the respondents on the sheer strength of its bargaining power have taken advantage of their position and imposed wholly un-equitable and unreasonable condition of employment on their prospective employees, who did not have any other choice but to accept the employment on the terms and conditions offered by the respondents. This action of the respondents is violative of Article 14 of the Constitution. Here it is apt to reproduce relevant observations of the Hon'ble Supreme Court in the celebrated decision of Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly and another, (1986) 3 SCC 156, which reads as under:-
"88. As seen above, apart from judicial decisions, the United States and the United Kingdom have statutorily recognized, at least in certain areas of the law of contracts, that there can be unreasonableness (or lack of fairness, if one prefers that phrase) in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control or as a result of situations not of their creation. Other legal systems also permit judicial review of a ::: Downloaded on - 15/04/2017 18:08:35 :::HCHP ...5...
contractual transaction entered into in similar circumstances. For example, section 138(2) of the German Civil Code provides that a transaction is void "when a .
person" exploits "the distressed situation, inexperience, lack of judgmental ability, or grave weakness of will of another to obtain the grant or promise of pecuniary advantages........which are obviously disproportionate to the performance given in return." The position according to the French law is very much the same.
89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample under- foot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Art.
14. This principle is that, the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in ::: Downloaded on - 15/04/2017 18:08:35 :::HCHP ...6...
a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has .
no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast r infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its, own facts and circumstances."
In terms of the aforesaid exposition of law, it is clear that this Court has the jurisdiction and power to strike or set aside the unfavourable term of contract of employment which purports to give effect to unreasonable bargain violating Article 14 of the Constitution.
8. The undertaking obtained from the appellant is so unfair and unreasonable that it shocks the conscious of this Court. It reflects the inequality of the bargaining power between the appellant and the respondents which emanates from the great disparity in the economic strength between the job seeker and job giver.
9. The appellant was compelled by circumstances to accept the offer made by the respondents, but then the mere acceptance of this offer would not give it a stamp of approval regarding its validity. It is an age old maxim that "necessity knows no law" and a person sometimes may have to succumb to pressure of the other party to bargain who is in stronger position. Although, it may not be strictly in place, but the Court cannot shut its eyes to this ground reality.
10. At this stage, it shall be apt to quote the following observations of the Hon'ble Supreme Court in Chairman and MD ::: Downloaded on - 15/04/2017 18:08:35 :::HCHP ...7...
NTPC Ltd. Vs. Rashmi Construction Builders and Contractors (2004) 2 SCC 663:-
"28. Further, necessitas non habet legem is an age-old .
maxim which means necessity knows no law. A person may sometimes have to succumb to the pressure of the other party to the bargain who is in a stronger position."
11. Notably the respondents herein are none other than the functionaries of the State who are expected to function like a model employer. A model employer is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation. A model employer should not exploit its employees and take advantage of their helplessness and misery. The conduct of the respondents falls short of expectation of a model employer.
12. The Hon'ble Supreme Court in its decision in Bhupendra Nath Hazarika and another Vs. State of Assam and others, (2013) 2 SCC 516 has succinctly explained this position in the following terms:-
"61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.
62. Almost a quarter century back, this Court in Balram Gupta V. Union of India 1987 Supp SCC 228 had observed thus: (SCC p. 236, para 13)
"13.... As a model employer the Government must conduct itself with high probity and candour with its employees."
In State of Haryana V. Piara Singh (1992) 4 SCC 118 the Court had clearly stated: (SCC p. 134, para 21).
"21....The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."
63. In State of Karnataka V. Umadevi (3) (2006) 4 SCC 1 (SCC P. 18, para 6) the Constitution Bench, while ::: Downloaded on - 15/04/2017 18:08:35 :::HCHP ...8...
discussing the role of State in recruitment procedure, stated that if rules have been made under Article 3089 of the Constitution, then the Government can make appointments .
only in accordance with the rules, for the State is meant to be a model employer.
64. In Mehar Chand Polytechnic V. Anu Lamba (2006) 7 SCC 161 (SCC p. 166, para 16) the Court observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to al the citizens of India entitled for being considered for recruitment in the vacant posts.
65. We have stated the role of the State as a model r employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority.
A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretised. We say no more."
12. In view of the aforesaid decision which otherwise is binding on this Court, it can conveniently be concluded that only on account of unequal bargaining power, the petitioner cannot be exploited. The respondent-society cannot be permitted to act with a total lack of sensitivity and indulge in 'begar', which is specifically prohibited under Article 23 of the Constitution of India.
13. Once the Deputy Commissioner is heading the Indian Red Cross Society, then there is a flavour of public element and duty ::: Downloaded on - 15/04/2017 18:08:35 :::HCHP ...9...
attached to the office. It, therefore, is expected to be function like a model employer, who is under an obligation to conduct itself with high .
probity and expected candour and the employer, who is duty bound to act as a model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation.
14. It has to be borne in mind that it is not even the case of the respondents that the petitioner has not been discharging her duties diligently, honestly and faithfully. It is also not the case of the respondents that the petitioner is lacking any qualification or has any blemished record during her employment of more than two and half decades. Rather, the Deputy Commissioner himself had sought the permission of the Government for regularizing the services of the petitioner vide communication Ex.R-7, which reads:
"To The F.C.-cum-Secretary(Revenue) to the Government of Himachal Pradesh.
Subject: Representation regarding regularisation of services of the employees of the Red Cross Society Distt. Branch, Solan, Distt. Solan, in accordance with the policy of the State Govt. and in the light of the decisions Court of India.
Sir, Kindly refer to your office letter No. Rev.A(B)1- 12/2002(SLN) dated 10.2.2003 on the above cited subject.
In this connection, I have the honour to say that reply in this regard has already been sent to your office vide this office letter No. Estt./4-4/72 dated 27.10.2001, (Copy enclosed) further it is intimated that Smt. Seema Devi was appointed as Clerk on 10.1.89 by the Indian Red Cross Society, Solan Branch @ Rs.750/- now which has been increased @ Rs.3000/- per month. She is continuing her service in this society since 10.1.89 but she has not been regularised by the said Society till date.
You are, therefore, requested to consider her case sympathetically for regularisation of her service. At present 14 posts of ::: Downloaded on - 15/04/2017 18:08:35 :::HCHP ...10...
Clerks are lying vacant in this office and this office has no objection if her service are regularised against the vacant post of Clerk.
Sd/-
.
For Deputy Commissioner, Solan."
15. Once the Deputy Commissioner, Solan, being the Chairman of respondent No.1-Society, himself has recommended the case of the petitioner for regularisation, it does not stand to reason that now he can turn around and oppose the same.
16. In view of the aforesaid discussion, I find merit in this petition and accordingly the award passed by the learned Tribunal below dated 28.3.2013 is quashed and set-aside and the respondents are directed to consider the case of the petitioner for regular appointment to the post of PBX Clerk on the pattern of State Government with all actual consequential benefits. The parties are left to bear their own costs.
May 8, 2015. ( Tarlok Singh Chauhan ),
(GR) Judge
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