Gujarat High Court
Mohini Pessuram Tilwani vs Union Of India, Ministry Of Agriculture on 17 October, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21187 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MOHINI PESSURAM TILWANI
Versus
UNION OF INDIA, MINISTRY OF AGRICULTURE
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
MR DEVANG VYAS (2794) for the Respondent(s) No. 1
MR DHAVAL C.DAVE, SENIOR ADVOCATE assisted by MR UDIT N
VYAS(9255) for the Respondent(s) No. 2
NOTICE UNSERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 17/10/2022
ORAL JUDGMENT
1. RULE. Learned Advocate Mr.Udit Vyas waives service of Rule on behalf of respondent No.2.
2. This petition under Article 226 of the Constitution of Page 1 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 India is filed praying inter alia as under:-
"[B] Your Lordship may be pleased to issue a writ of Mandamus or Writ in the nature of Mandamus or any appropriate Writ, Order or Direction directing the Respondent's authority to release Rs.48,00,473 (calculated as on 01 May 2018) else the relevant higher amount including the compounded interest applicable for the period as and when directed to be paid then within reasonable time; this Court may find it deemed and proper.
[C] Your Lordships may be pleased to issue Writ of Mandamus to NDDB for dishonouring specified terms & conditions of contract in terms of Section 15(a) of the Specific Relief Act 1963 (ANNEXURE M) titled "Who may obtain specific performance - any party thereto in terms of the aforesaid liability commitment"
& direct NDDB to pay the pending financial dues expeditiously of Rs.10,55,726- towards Annual Increment and Rs.10,59,020 towards Performance Linked Incentive; total of Rs.21,14,746 in terms of its Paras 38 & 67 of NDDB's Officers, Appointment, Pay & Allowances Regulations 1988 (relevant extract enclosed as ANNEXURE C).
[D] Pending admission, hearing and final disposal of this Petition, this Honourable Court be kindly pleased to grant ad-interim relief in terms of Page 2 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 Para B above. "Preventive relief" is requested for the basic amount of Rs.21,14,746/- due in terms of Section 36 of The Specific Relief Act, 1963 titled "Preventive Relief how granted". [E] Your Lordship may be pleased to direct NDDB to make the payment of Rs.48,00,473 (calculated as on 01 May 2018) else the relevant higher amount including the compounded interest applicable for the period as and when directed to be paid then within reasonable time; as per the Central Government's permissible penal interest @ 18% to the Petitioner in view of Section 74 of Indian Contract Act 1872 titled "Compensation for breach of contract where penalty stipulated for", Section 21(1) of The Specific Relief Act 1963 titled "Power to award compensation in certain cases" for the total inaction on part of NDDB's management despite written appeals & emails of year 2013 and personal meetings with different Chairmen on various occasions besides in harmony with Section 21(1) of The Specific Relief Act 1963 (enclosed as ANNEXURE M), Section 74 of Indian Contract Act 1872 & this damage is prayed upon in terms of Section 40 of The Specific Relief Act 1963 (ANNEXURE M) titled "Damages in lieu of, or in addition to, injunction."
3. The petitioner has appeared Party-in-Person as she is granted competency certificate under Rule 31 of the Gujarat High Page 3 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 Court Rules, 1993 dated 31.12.2018, for the aforesaid reason only the prayer clause is reproduced in the preceeding para
4. The case of the petitioner is essentially for seeking direction to respondent No.2-National Dairy Development Board (NDDB) to make payment to the petitioner of the dues, which the petitioner claims to be payable to her in view of services rendered by the petitioner with respondent No.2-Board. It is submitted that claim is a component of her total salary which was not paid to the petitioner at the relevant time.
4.1 It is submitted that respondent No.2 is a Dairy Development Board, which is constituted under a statute being National Dairy Development Board Act, 1987 and considering nature of constitution and functioning of the Board, the Board is amenable to writ jurisdiction. It is submitted that the Board being a State is expected to act in a free and fair manner and therefore, has no authority to withhold dues which are legally payable to the petitioner.
4.2 The petitioner thereafter proceeded to make submissions with regard to previous litigation which was pertaining to her termination from IDMC ( Indian Dairy Machinery Company Limited), which is a subsidiary of respondent No.2-Board. The litigation before this Court was in the form of Special Civil Page 4 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 Application No.10252 of 2018 and Letters Patent Appeal No.1225 of 2019. In the aforesaid litigation, ultimately, order of termination was held to be illegal. Both the aforesaid decisions were extensively referred to by the petitioner to emphasis on her case that she was being targeted by respondent No.2 in view of the allegations made by the petitioner in the nature of sexual harassment against office bearers of respondent No.2-Board. 4.3 It is submitted that the present conduct of not releasing her dues, though entitled to, is also a part of targeting the petitioner to cause huge financial loss.
4.4 The petitioner submitted that as part of the agreement, salary of the petitioner was fixed which is referred to in the agreement is Cost to the Company (CTC) and amongst other components of CTC, two components being performance linked incentive and annual increments were denied to the petitioner for the part of the period during which the petitioner was in service of respondent No.2.
4.5 The petitioner submitted that as per Sections 73 to 75 of the Indian Contract Act, entitlement of the petitioner cannot be denied as there was agreement between the petitioner and respondent No.2 under which she was entitled to claim CTC. In not acting in accordance with the Contract Act and denying the Page 5 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 petitioner of her legitimate dues, respondent No.2 has acted in a fashion which will not comply with the principles of natural justice. 4.6 The petitioner drew attention of this Court to the contents of Annexure-A being "Contractual Appointment on Fixed Tenure" and particularly drew attention of this Court to Clauses-6, 7 and 8 and submitted that her claim is based on these clauses. The petitioner also drew attention of this Court to page No.87, which is a salary slip giving out 10 components of her salary as per the agreement, which included amongst other components also, performance linked incentive. It is submitted that services of the petitioner and the benefit of her service to respondent No.2-Board cannot be doubted in view of the fact that IDMC, a subsidiary of respondent No.2-Board, at the relevant time, was not doing so well and therefore, expertise of the petitioner was found necessary and therefore, the petitioner was offered to shift to IDMC and even after shifting to IDMC, she has performed her duty to the expectations of IDMC, because of which IDMC was greatly benefited.
4.7 It is submitted that the petitioner had worked as Head, HRD with respondent No.2 between 26.11.2010 to 30.04.2013 and with effect from 01.05.2013, the petitioner was given appointment with IDMC. Both being the same establishment, the petitioner claims that shifting of the petitioner from NDDB to IDMC was a Page 6 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 matter of internal transfer from one concern to a sister concern and to facilitate administration, the petitioner had given resignation letter which was accepted and the petitioner was smoothly accepted in IDMC.
4.8 During the period aforementioned with the NDDB, the petitioner was paid with integral component of CTC, where variable components, viz. Performance Linked Incentive (PLI) was up to 7.5% of CTC for the first year and enhanced up to 10% of the CTC in subsequent years whereas Annual Increment during this period was to be paid at the rate of 5% to 15% of CTC. It is submitted that the petitioner's performance was never questioned by the administration and was much appreciated and the previous Reporting Officer of the petitioner, at various forums, was vocal about outstanding performance of the petitioner. But, the trouble grew when Reporting Officer changed and thereafter, the petitioner has been targeted for the reasons which the petitioner has already mentioned.
4.9 The petitioner has, thereafter, painstakingly explained about the method which is adopted to calculate PLI and annual increment by assessment of performance in Key Result Areas (KRA), which is to be apprised by keeping in mind the Goal Sheet which is part of record of management. It is submitted that had the respondent-Board applied correct principles, entitlement of the Page 7 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 petitioner would immediately come on record, but in case of the petitioner, assessment has been made to prejudice the petitioner, whereas for the same period, other team members of the petitioner have been given PLI and annual increment. It is submitted that assessment for the purpose of PLI and annual increment, to a great extent, depends upon the performance of the team and therefore, if the team members of the petitioner are given with PLI and annual increment, automatically, the petitioner also ought to have been given this benefit. The discrimination is therefore very much on record.
4.10 It is submitted that the petitioner has time and again communicated with the respondent-Board with regard to her claim of variable pay and annual increment and she is made to run from pillar to post, but no relief has been given to the petitioner. It is submitted that it was only after the petitioner had addressed communication of her grievance to the Hon'ble Prime Minister's office that the issue raised by the petitioner received some consideration from the respondent-Board and that too not in her favour.
4.11 The petitioner thereafter took this Court to the communications dated 12.08.2013 and 21.08.2013 indicating communication of full and final settlement of the salary dues along with calculation sheet. It is submitted that nowhere reference is Page 8 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 made in this connection of full and final settlement of her salary dues to the PLI and annual increment component. 4.12 The petitioner, to justify her claim, drew attention of this Court to e-mail communication between her and one Jaydev Vishwas to submit that the petitioner had submitted all necessary documents in support of her claim of PLI and annual increment , including additional documents sought for by respondent N.2- Board. The petitioner drew attention of this court particularly to e- mail communication dated 20.03.2013, wherein Goal Sheet of the petitioner and additional achievements of the petitioner were attached as documents. When such details were called for, instead of addressing to these documents attached with the e-mail, a stand is taken that the petitioner has not submitted her performance in prescribed form in KRA. It is submitted that when the performance of the petitioner was excellent, there was no reason why the petitioner would withhold such information from respondent No.2 and therefore, for the sake of creating excuse, a ground is taken that the petitioner has not supplied necessary documents regarding performance in KRA.
4.13 The petitioner relied upon an unreported decision of the Apex Court in case of M/s.Surya Constructions Vs. The State of Uttar Pradesh & Ors., in Civil Appeal No.2610 of 2019 dated 08.03.2019, in support of her argument that where Page 9 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 the amount is wholly undisputed though it may arise from a contract, the High Court could interfere under Article 226 of the Constitution of India. She also relied upon decision of the Apex Court in case of K.K.Saksena Vs. International Commission on Irrigation and Drainage & Ors., reported in 2015 (4) SCC, 670, to submit that in this decision, the Apex Court has held that under Article 226 of the Constitution of India, the High Court can issue writs not only for enforcement of any of the rights prescribed under Part-III of the Constitution of India but also for any other purpose. Therefore, writ of this Court is wide enough to cover grievance of the petitioner claiming her dues in "for any other purpose" and has, therefore, prayed for issuance of writ directing respondent No.2 to pay her monetary claim which is part of her salary.
5. As against this, learned Senior Advocate Mr.Dhaval Dave for respondent No.2-Board submitted that the Petitioner, who was appointed contractually in the set up of respondent No.2 as Head-HRD for fixed tenure, seeks to enforce her claim for variable components of her CTC, i.e. annual increment and performance linked incentives emanating from the terms and conditions of her letter of appointment dated November 8, 2010. the nature of Right sought to be enforced by the Petitioner are purely contractual in nature, the Proceedings under Article 226 of the Constitution of India can be filed for the enforcement of Page 10 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 fundamental rights and / or legal rights which are not of private character, the rights of the Petitioner against Respondent No. 2 are governed by terms and conditions of a contract. 5.1 It is submitted that even within the contract between the Petitioner and Respondent No. 2, the Petitioner cannot claim grant of variable pay, i.e. annual increment and performance linked incentive, as a matter of right as they are depending upon the performance of the Petitioner. The Petitioner has no vested right in absolute terms to claim such performance-based incentives. the Petitioner is not even having an absolute contractual right the enforcement of which can be sought in writ proceedings. 5.2 It is submitted that the Petitioner was appointed as Head-HRD under a communication November 8, 2010 with effect from November 26, 2010. The said appointment was for the fixed period of 5 years to be computed from the date of joining by the Petitioner or attaining the age of 60 years, whichever was to happen first. As per the terms and conditions of her appointment, the Petitioner would be entitled to variable components of her pay based on her performance on KRA, after review by the competent authority. Further, since the said components were payable annually, finalise her KRAs in advance at the commencement of the appraisal period in consultation with her reporting officer and get them approved. Subsequently, she was required to get her Page 11 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 performance evaluated on an annual basis. Accordingly, the Petitioner was required to submit her papers for review in prescribed format for a period from December 1 to November 30 of the preceding year.
5.3 It is submitted that the Petitioner was desirous of joining another organisation namely, IDMC Limited, the Petitioner submitted her application to the Managing Director, IDMC Limited on March 18, 2013 for being considered for the post of Head- HR. 5.4 It is submitted that the Petitioner was never transferred from Respondent No. 2 to IDMC Limited. The Petitioner had applied for a position at IDMC Limited on her own volition. Although IDMC Limited is a wholly owned subsidiary of Respondent No. 2. The Petitioner was never directed to join IDMC Limited by the management of Respondent No. 2. Rather, it was the Petitioner who herself wished to join IDMC Limited. Respondent No.2, at the most, agreed to the decision of the Petitioner to move to the set up of IDMC Limited and facilitated the same as a good gesture.
5.5 It is submitted that Since the Petitioner had obtained a job in such a wholly owned subsidiary of Respondent No. 2, her revilement was merely facilitated by waiving-off the notice period and not disturbing her accommodation at the instance of the Page 12 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 Petitioner. The employment of Petitioner at IDMC Limited is completely unrelated to that of Respondent No. 2. The said employment was a fresh employment and not continuation of services as alleged by the petitioner.
5.6 It is submitted that the petitioner was required to finalise her KRAs in advance at the start of the appraisal period and then submit the documents for review on a year to year basis for facilitation of review. Timely submission of documents is sacrosanct to performance appraisal and belated submission of the same would frustrate the entire exercise. Since the Petitioner willfully failed to finalise her KRAs in advance and get the same appraised by her reporting officer, the request of the Petitioner deserved to be discarded at threshold for such delayed submission. 5.7 It is submitted that the documents submitted by the Petitioner were reviewed by the Managing Director, who was the competent authority in the set-up of Respondent No. 2 to review the performance of the Petitioner. Upon review, for reasons recorded in writing, the Managing Director was of the view that the Petitioner was not entitled to any variable pay / incentive for her period of service.
5.8 It is submitted that that any communication concerning performance review of an employee is highly privileged and Page 13 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 confidential.
5.9 It is submitted that being Head- HRD, it was the solemn responsibility of the Petitioner to ensure finalisation of KRAs for all employees on Fixed Term Contract at Respondent No. 2. Including herself at the commencement of the appraisal period and thereafter also facilitate the review process of all such employees at the end of the appraisal period.
5.10 It is submitted that the Petitioner was not entitled to any aspect of her variable pay, vide a communication dated August 23, 2013, the Petitioner was informed that her account with respondent No. 2 was settled in full and final. Thereafter, after lapse of almost 5 years, the Petitioner made a representation upon the Respondent No. 2 claiming grant of variable pay on May 3, 2018. The representation of the Petitioner was considered by Respondent No. 2 in its 128th meeting held on June 18, 2018. After considering the appeal on the aspect of delay as also on merits, Respondent No. 2 resolved that the representation of the Petitioner is devoid of any substance.
5.11 It is submitted that grant of variable pay was refused to the Petitioner by the Managing Director of Respondent No. 2 after considering all relevant facts, circumstances and available material. The petitioner has no right to seek indulgence of this Page 14 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 Hon'ble Court for substituting the view taken by the competent authority, assuming without admitting that any such alternative view is possible.
5.12 It is submitted that though respondent No.2 is a Board, which came into existence under a statute, still in the subject matter of the present petition, writ may not be issued for enforcement of contract. Learned Senior Advocate for respondent No.2-Board relied upon decision of the Apex Court in case of Kulchhinder Singh & Ors. Vs. Hardayal Singh Brar & Ors., reported in (1976) 3 SCC, 828, to submit that remedy under Article 226 cannot be resorted to enforce a contract. 5.13 Learned Senior Advocate for respondent No.2-Board extensively referred to and relied upon decision of the Apex Court in case of Joshi Technologies International Inc. Vs. Union of India & Ors., reported in (2015) 7 SCC, 728 and submitted that the aforesaid decision had circumscribed the powers of the High Court in exercise of its discretion under Article 226 of the Constitution of India and had clearly laid down guidelines where the High Court can interfere and High Court should refrain and emphasis of the aforesaid judgment was to refrain the High Court under Article 226 to interfere in the matter of contract between a private party and the State or its instrumentality, if it is not having element of 'public law'. It is argued that the claim of the petitioner Page 15 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 is purely based on one to one contract between the petitioner and respondent No.2-Board. By no stretch of imagination, any such claim is affecting public law.
5.14 Learned Senior Advocate for respondent No.2-Board also relied upon latest decision of the Apex Court in case of St.Mary's Education Society & Anr. Vs. Rajendra Prasad Bhargava & Ors., reported in 2022 SCC Online, 1091, wherein aforesaid principle of there being public element in the action complained of so as to justify the judicial review under Article 226 of the Constitution of India is discussed.
5.15 Reliance is also placed on the decision of the Apex Court in case of State of Bihar & Ors. vs. Jain Plastics and Chemicals Ltd., reported in (2002) 1 SCC, 216, to argue writ is not the remedy for enforcing contractual obligations. It is to be reiterated that writ petition under Art. 226 is not the proper proceeding for adjudicating such disputes. Under the law, it was open to the respondent to approach the Court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground Page 16 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 in refusing to exercise the discretion under Art. 226. 5.16 In support of his argument of delay in raising her claim, which otherwise ought to have been persuaded as a monetary claim in a suit for recovery, learned Senior Advocate for respondent No.2-Board relied upon decision of the Apex Court in case of Surjeet Singh Sahni Vs. State of U.P. & Ors., reported in 2022 SCC Online, 249.
6. In rejoinder, the petitioner drew attention of this Court to National Dairy Development Board Act, to submit that the Board and the Chairman are creation of the statute and the constitution itself of the Board was by having regard to the special expertise of the Board and needs of public and it is under this statute that the Board is carrying out its activity. The petitioner particularly referred to Sections 8 and 9 of the Act in this regard. It is also submitted tat as the petitioner was under employment of the Board, she is a public servant and when she makes claim, though monetary, as a public servant, there is no requirement of element of public law.
6.1 The petitioner thereafter referred to oft cited decision of the Apex Court in case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors., reported in (1998) 8 SCC, 1, to submit that alternative remedy of filing a suit will not Page 17 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 prevent the petitioner from approaching this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
7. Having heard learned Advocates for the parties and having perused documents on record, it appears that the Petitioner was appointed on the post of Head-Human Resource Development in the setup of respondent No.2-Board on Contractual Appointment on Fixed Tenure for a period of 5 years on 08.11.2010 and she joined with effect from 26.11.2010. It would be necessary to refer to Annexure-A, which is a contractual appointment on fixed period of the petitioner bearing reference No.HRD: CAFT: 94:15725 dated 08.11.2010, wherein clauses-6 to 9 read as under:-
"6. The compensation payable to you along with the benefits is given in the Annex. This includes a component of variable pay, which will be upto 7.5% of CTC in the first year and upto 10% of CTC in subsequent years, the payment of which would be based on your performance against the Key Result Areas (KRAs) and will be payable after a review of KRAs.
7. You will be eligible to avail leave according to NDDB Leave Rules. You will also be eligible to en-cash any un-availed earned leave /half pay leave at the end of aforesaid fixed term.
8. The annual increment will be between 5 and percent of CTC which will be decided after a Page 18 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 review of your performance against KRAs.
9. Your Key Result Areas (KRAs) shall be decided in consultation with your reporting officer and shall be reviewed on annual basis."
8. It also appears that on 31.12.2010, the petitioner submitted her Goal-Sheet for the review period of 01.12.2010 to 30.11.2011. The same was not approved and the Petitioner was directed to undertake further review and modification of the same after 6 (six) months. A modified Goal-Sheet was never submitted.
9. The issue with regard to PLI was under consideration at the highest level, which is evident from the communication between the Managing Director and Chairman, relevant portion of which is reproduced hereunder:-
"Sub.:Increment and variable pay of Ms Mohini Tilwani, Ex-Head-HRD This has reference to the attached note from GM-HRD on release of variable pay and yearly increment of Ms. Mohini Tilwani, Ex-Head-HRD for last 2 years. Following are my views on this issue:
1. Ms. Mohini Tilwani was on the rolls of NDDB as Head-HRD from December 2010 to 30th April 2013.
2. As per the terms and conditions of her employment, KRAs of Ms. Mohini Tilwani for the Page 19 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 period December 2010-November 2011 were finalized in consultation with Shri Ravi Shankar, ED on 31 December 2012 with the comments "We may review this after 6 months for some further refinements/modifications". However there are no records whether any such review was done or not. There are also no records available which indicates when this document was submitted to Chairman for appraisal.
3. There are no approvals available on finalisation of her KRAs for the period of December 2011-
November 2012. There were no deliberations either with me on her performance for the aforesaid period.
4. There have been serious deficiencies in her performance and actions as listed below which has affected the work culture of the organization:
a. Engagement of manpower consultants (MINAR Management and Professional Services) without approval of Competent Authority.
b. Candidates taken on Randstad rolls which were
sourced from manpower consultants and
payments for sourcing them were recommended which were in violation of agreement with Randstad leading to 3rd party payment.
c. While declaring ex-gratia for the year 2009-10, Ms. Tilwani had conveyed in her mail that Performance Linked Incentive Scheme (PLIS) will Page 20 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 be restored for the period-April 2011 to March 2012, however, it was not implemented.
d. While releasing ex-gratia for the year 2009-10, all employees who had served during the period were paid ex-gratia; however for the year 2010-11 and 2011-12, it was released based as an ad-hoc payment on the formula that 'employees on the rolls of NDDB, on the date of announcement of ex-gratia would only be eligible for the same. This led to non-receipt of ex-gratia by many employees who had served during the period for which ex- gratia was released, but were not on the rolls of NDDB on the date of announcement of ex-gratia.
e. Guidelines for claiming driver's salary and filling the log book issued against the official vehicle were not followed. Based on the attached note the driver's salary is being released however, reimbursement of bills for fuel filled outside NDDB is not being released.
The terms of payment of variable pay and annual increment is provided below:
'The compensation payable to you along with the benefits is given in the Annex. This includes a component of variable pay, which will be upto 7.5% of CTC in the first year and upto 10% of CTC in subsequent years, the payment of which would be based on your performance against the Key Result Areas (KRAs) and will be payable after a review of KRAs.Page 21 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022
C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 The annual increment will be between 5 and 15 percent of CTC which will be decided after a review of your performance against KRA's"
Based on the aforesaid I propose not to issue any variable pay/ year incentive to Ms Tilwani for her entire period of her service with NDDB."
10. On 21.08.2013, the dues of the Petitioner with NDDB were settled fully and finally.
11. The issue was thereafter taken up even by the Board in its 128th meeting on June 22, 2018 to resolve on the representation of the petitioner dated 03.05.2018. The resolution reads as under:-
"RESOLUTION NO. 7/128/11/2018-19 "RESOLVED THAT on consideration of all relevant facts and circumstances and more particularly the fact that Ms. Mohini Tilwani had resigned from the services of NDDB and relieved as back as 30th April 2013, it is not possible to accept the representation dated 3rd May 2018 which is otherwise devoid of any substance."
12. The note of Item No.11 of the agenda of 128 th meeting, which is placed on record at page No.226 has referred to gist of the grievance made by the petitioner in her representation. This grievance is also raised in the present petition.
13. It appears that on 03.05.2018, the Petitioner made a Page 22 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 representation before Respondent No. 1-Union of India regarding non-payment of her variable pay and increment by NDDB for the period of 26.11.2010 to 30.04.2013 after a lapse of 5 years. This representation was treated as an appeal and placed before the highest body of NDDB. On 31.05.2018, the respondent-Board received a communication from respondent No.1-Union of India for taking an appropriate decision on the representation of the petitioner dated 03.05.2018. On 18.07.2018, the Petitioner was informed that her representation was rejected by the Board of NDDB on merits as well as on account of delay.
14. Though a feeble resistance was made on the ground of maintainability of the writ against respondent No.2, the Court is of the view that the issue does not need any further deliberation in view of the decision of this Court in case of the very petitioner being Special Civil Application No.10252 of 2018, which was questioning termination order of the petitioner of her services with IDMC, a subsidiary of respondent No.2-Board, which came to be confirmed by decision in Letters Patent Appeal No.1225 of 2019 by CAV judgment dated 24.07.2020 and therefore, writ against respondent No.2 can be maintained.
15. However, to examine the dispute in the present petition, it appears that the claim is based on terms of contract enumerated in the preceding paragraphs, which is undoubtedly a Page 23 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 contract agreement for a fixed term. The claim of the petitioner in the present petition is exclusively based on the aforesaid clauses, for which, from the facts on record, it appears that the petitioner was appointed as Head-HRD on November 8, 2010 with effect from November 26, 2010. The said appointment was for the fixed period of 5 years to be computed from the date of joining by the Petitioner or attaining the age of 60 years, whichever was to happen first. As per the terms and conditions of her appointment, the Petitioner would be entitled to variable components of her pay based on her performance on KRA, after review by the competent authority. Further, since the said components were payable annually, finalise her KRAs in advance at the commencement of the appraisal period in consultation with her reporting officer and get them approved. Subsequently, she was required to get her performance evaluated on an annual basis. Accordingly, the Petitioner was required to submit her papers for review in prescribed format for a period from December 1 to November 30 of the preceding year. The requisite papers for finalisation of her KRA for the period of December 1, 2010 to November 30, 2011. However, since the submission required modifications, the reporting officer of the Petitioner had directed to re-submit the KRAs again after a period six months. Despite the directions for re-submissions of the necessary documents, the Petitioner has failed to re-submit her KRAs to her reporting officer after completion of first year for facilitating the Page 24 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 review process. Further, the Petitioner also failed to finalise the KRAs in consultation with the reporting officer at the commencement of appraisal period from December 1, 2011 to November 30, 2012.
16. The application of the petitioner dated 18.03.2013 for being considered for the post of Head-HR in IDMC was accepted by IDMC Limited on 16.04.2013. The Petitioner submitted her resignation to respondent No. 2 on 22.04.2013. Consequently, the petitioner was relieved from her services vide an office order dated 30.04.2013.
17. The monetary claim of the petitioner seeking PLI and annual increment is based on the procedure required to be followed, which in the present case, the respondent-Board has claimed to have followed, but has resulted against the petitioner. Therefore, in the opinion of the Court, claim of the petitioner to such variable is, in fact, enforcement of contractual obligation between the two parties.
18. In the opinion of the Court as the monetary claim is contractually based upon performance of the petitioner, wherein contract itself provides for PLI ranging between 5% to 7.5%, it will still be a monetary claim, which has to be assessed by undertaking procedure at the hands of the respondent-Board. In a given case, it Page 25 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 can be 7.5% or in a given case, it can be to even lesser then 7.5% of CTC depending upon performance appraisal. It might as well be below 7.5%. Similarly, claim of annual increment as per Clause-8 of the contract will be between 5% to 15% of the CTC and which is again based on the review of the performance of an individual against KRAs, meaning thereby increment can be as low as 5% of CTC to highest of 15% of CTC or anywhere in between depending upon performance. This variable in percentage is an exercise, which is to be undertaken by the respondent-Board in hierarchical manner and therefore, involves highly disputed questions of fact, which are required to be proved by leading of evidence and certainly claim in the category of PLI up to 7.5% of CTC and annual increment up to 10% of CTC cannot be termed to be undisputed claim of the petitioner against respondent No.2-Board.
19. In case of Joshi Technologies International Inc. (supra), it is held as under in para-69:-
"69. The position thus summarized in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, can refuse to Page 26 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 exercise. It also follows that under the following circumstances, 'normally', the Court would not exercise such a discretion:
69.1 The Court may not examine the issue unless the action has some public law character attached to it.
69.2 Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said made of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration.
69.3 If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.
69.4 Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.
70. Further legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to the contracts entered into by the State/public Authority with private parties, can be summarized as under:
70.1 At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.
70.2 State in its executive capacity, even in the Page 27 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 contractual field, is under obligation to act fairly and cannot practice some discriminations.
70.3 Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, Involving examination and cross- examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases court can direct the aggrieved party to resort to alternate remedy of civil suit etc. 70.4 Writ jurisdiction of High Court under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred.
70.5 Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business.Page 28 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022
C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 70.6 Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.
70.7 Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.
70.8 If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction.
70.9 The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract. This Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the Page 29 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary.
70.10 Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.
70.11 The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes."
20. In case of Jain Plastics and Chemicals Ltd. (supra), in para-7, it is held as under:-
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C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 "7. In our view, it is apparent that the order passed by the High Court is on the face of it illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be ground for exercise of extraordinary jurisdiction under Art. 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in an properly instituted civil suit rather than by a Court exercising prerogative of issuing writs."
21. The Apex Court in case of Surjeet Singh Sahni (supra), in para-5 has held as under:-
"5. As observed by this Court in catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within reasonable time. If it is found that the writ petitioner is guilty of delay and latches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the Page 31 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 representation, once it is found that the original writ petitioner is guilty of delay and latches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action."
22. In case of St.Mary's Education Society & Anr. (supra), in para-42, the Apex Court has held as under:-
"42. In the background of the above legal position, it can be safely concluded that power of judicial review under Article 226 of the Constitution of India can be exercised by the High Court even if the body against which an action is sought is not State or an Authority or an Instrumentality of the State but there must be a public element in the action complained of."
23. This Court has no hesitation in holding that the dispute raised by the petitioner is purely based on contract (Annexure-A) and raises questions of facts which are strongly disputed by the respondent-Board and therefore, would require adjudication by leading of evidence. Hence, the Court is refraining from exercise of powers under Article 226 of the Constitution of India.
24. This Court is of the view that from the record, appraisal of the performance of the petitioner in KRA, which in turn will be the basis for quantifying PLI as well as annual increments, is a specialized function of the management of the respondent-Board and would depend upon several facts and examination of Page 32 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022 C/SCA/21187/2018 JUDGMENT DATED: 17/10/2022 documents. All this exercise cannot be brushed aside to recognize claim of the petitioner of these two factors of her CTC to be an undisputed claim so as to invoke Article 226 of the Constitution of India.
25. One more aspect because of which the Court would refrain exercise of powers under Article 226 of the Constitution of India is the issue of limitation raised by the respondent-Board. To examine the issue whether claim made by the petitioner is within the limitation will also require exercise of leading of evidence. The Court is of the view that by brushing aside such objection, would deprive a legitimate right of the respondent-Board to contest a monetary claim of the petitioner, which otherwise is available to the respondent-Board as a principle of law.
26. The chronology of facts recorded in the preceding paragraphs, prima facie indicates that the claim of the petitioner for PLI and annual increment was for the period between 2010 to 2013 and it is the claim of the respondent-Board that the petitioner had raised the issue for the first time when a representation was made in the year 2018, though the respondent-Board also contests stand of the petitioner that between 2013 to 2018, she had made representation for such claim, but that again will fall in the realm of disputed question, which would need adjudication by leading of evidence.
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27. In view of the aforesaid discussion, the Court deems it fit not to exercise powers under Article 226 of the Constitution of India. The petition therefore deserves to be and is hereby dismissed. Rule is discharged. No order as to costs.
Sd/-
(A.Y. KOGJE, J) SHITOLE Page 34 of 34 Downloaded on : Sun Dec 25 04:14:05 IST 2022