Delhi High Court
Kumari Priti Chopra vs Managing Director M.P. Hastshilp Vikas on 11 August, 1999
Equivalent citations: 1999VAD(DELHI)492, 81(1999)DLT212, 1999(51)DRJ7
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. The petitioner had filed this writ petition dated 26.2.1998 after serving its advance copy to respondent No. 1 on 26.2.1998. In the petition, as originally filed, the petitioner stated that she was appointed to the post of sales girl by respondent No. 1 namely M.P. Hastshilp Vikas Nigam Ltd. on 2.8.1994 initially for a period of six months on monthly salary of Rs. 2000/- on the condition that if the work of the petitioner was found satisfactory the period of service will be extended on the basis of the recommendations. She continued in service beyond six months. However, she was paid consolidated salary of Rs. 2,000/- whereas the other workmen were paid the salary in the pay scale of Rs. 0-20-1150-25-1400. Accordingly on 12.2.1997 she made representation for increasing her salary which was followed by reminders dated 30th April, 1997, 30th July, 1997, 7th January, 1998 and 29th January, 1998. However, the respondent did not pay need to any of her request and accordingly this petition was filed seeking directions against the respondent to give the petitioner pay scale of Rs. 950-20-1150-25-1400 with other allowances including medical allowances to the petitioner on the basis of "equal pay for equal work" as per rules and regulations of the respondent at par with other sales men. It was also prayed that writ of prohibition or directions may be issued restraining the respondent from terminating the services of the petitioner. The petition came up for hearing on 2nd March, 1998 when notice in the civil writ was issued. The petitioner had also filed CW No. 1664/98 seeking interim directions to the effect that respondent be restraining from terminating her services and also directions to release the salary of the petitioner for the month of December, 1997, January, 1998 and February, 1998. Notice was issued in this application also returnable on 10th March, 1998.
2. The respondent filed counter affidavit dated 10th March, 1998 in which it was inter alia stated that the order dated 26th February, 1998 was passed as per which the petitioner was relieved from services on 26th February, 1998. Accordingly on 30th March, 1998 the petitioner was given permission to file appropriate application amending the writ petition challenging the termination order also. The petitioner filed application (CM No. 3341/98) for amendment of the writ petition which was allowed by this court vide order dated 1.5.1998. The petitioner filed amended writ petitioner to which reply affidavit was filed by the respondent and the petitioner filed rejoinder affidavit to the said reply. The matter came up for arguments thereafter on 25th August, 1998 when counsel for the petitioner contended that persons junior to the petitioner have been allowed to be retained by the respondent in their organisation while the petitioner's service have been terminated after the petitioner filed this writ petition. The respondent was accordingly directed to file affidavit stating as to whether any person who was junior to the petitioner still working with the respondent or not. Pursuant to this order affidavit dated 8th September, 1998 was filed by the respondent. The matter was thereafter argued on 28.10.198. It was contended by the petitioner that one Mr. Yogesh Nayyar who was junior to the petitioner was retained in service while terminating the service of the petitioner. Therefore, this court directed the respondent to produce the record on the next date of hearing. It was also directed that letter of appointment of Mr. Yogesh Nayyar be also brought on record. The respondent produced the record which was perused by the court on 15.12.1998, and 2.2.1999 and this Court passed the following orders on these dates:-
15.12.98 "I have perused the record produced by the respondent. It seems that the said Mr. Yogesh Nayyar was appointed for Mrignaynee Noida. However, it seems that he was working at Show Room at Delhi. The Annexure P-1 at page 142 of the paper book is a letter dated 12th May, 1995, for Madhya Pradesh Hastshilp Vikas Nigam Ltd. Bhopal. Only the name of Yogesh has been given in the said letter. The persons stated in the said letter are working at Delhi. The admitted position of the case is that the petitioner was appointed prior to Yogesh.
Learned counsel for the respondent prays for sometime to seek instructions whether the petitioner can be accommodated.
Renotify on 2nd February, 1999.
Sd/-
(Vijender Jain) Judge."
2.2.99 "Mr. B.S. Banthia, learned counsel appearing on behalf of respondent No. 1 states that respondent No. 1 is prepared to offer a job to the petitioner in Khajuraho. Considering the personal circumstances/difficulties of the petitioner as a single lady it will not be possible for the petitioner to accept the same. However, the learned counsel for respondent No. 1 very fairly states that he will try to find out whether the petitioner can be accommodated either at Noida or at a counter which has been stated by the petitioner to be opened up at Tamil Nadu Emporium in Delhi.
List this matter on 20.5.1999.
Sd/-
(Mukul Mudgal, J.)"
3. The respondents have filed another affidavit dated 26th March, 1999 in which it is mentioned that as per the directions of the Court on 15.12.1998 the Corporation, sent appointment order dated 1.2.99 to the petitioner. It is further stated that the respondent-corporation has not opened any counter in Tamil Nadu emporium in Delhi and there is not proposal to create any post in Delhi. It is further stated that the respondent-corporation has no vacancy in their Noida Officer.
4. On 16.7.1999 when the matter came up for hearing, the counsel for the petitioner stated that it was not possible for the petitioner to accept appointment at Khajuraho. Counsel for the respondents expressed inability to accommodate the respondent in Delhi or Noida, The matter has accordingly heard on merits.
5. It is the case of the petitioner that respondent No. 1 namely M.P. Hastshilp Vikas Nigam Ltd. is an undertaking of the Government of M.P. having its office at Bhopal. It is engated in promoting and developing the handicrafts. etc., through its various offices and Emporia including at Mrignaynee Emporium Bawa Khadak Singh Marg. New Delhi. There is another Emporium in Sector 29 Noida, U.P. These two Emporiums imp leaded as respondents 3 and 4 respectively. The petitioner was appointed as sales girl initially for a period of 6 months on a salary of Rs. 2000/- per month and she joined the service on 2.8.1994 with respondent No. 3. It was stated in the said appointment letter sated 1st August, 1994 that in case of her work being unsatisfactory during the period of contract, she may be removed from service. If her work is satisfactory during the period of contract, then her case can be recommended for extending the period. The petitioner states that after joining the service with effect from 2.8.1994. on a monthly salary of Rs. 2000/- she had been continuing working with the respondents. As she was not paid the same salary which was paid her counter parts i.e. in the pay scale of Rs. 950-20-1150-25-1400, she made repeated representatives. When no response was given to these representations she filed the present petition. The circumstances in which the present writ petition was filed which led to amendment of the writ petition after the petitioner's services were terminated vide order dated 26.2.1998 had already been narrated above. On the basis of these facts the petitioner had prayed for the following relief:
"(i) It is, therefore, most respectfully prayed that this Hon'ble Court may pleased to pass the following orders:
(1) that a writ, direction or order in the nature of writ of mandamus be issued, directing the respondents to give pay-scale of Rs. 950-20-1150-25-1400 with other allowances and medical allowance to the petitioner on the basis of "Equal pay for equal work" as per rules and regulations of the respondents at par with other Salesmen within with respondents from the date of her appointment.
(ii) That the writ of prohibition or direction may be issued, restraining the respondents from terminating the services of the petitioner.
(iii) Any other relief which this Hon'ble Court may be deemed fit and proper in the circumstances of the case be also granted in favour of the petitioner and against the respondents.
(iv) to pass such order or further orders as may deem fit and proper in the facts and circumstances of the case.
(v) to award costs of this petitioner."
A perusal of the prayer reproduced above would show that the petitioner has principally asked for the following relief.
(i) grant of pay scale of Rs. 950-20-1150-25-1400 on the principle of 'equal pay for equal work'.
(ii) seeking quashing of order of terminating her service dated 10/12.2.1998 issued by the General Manager (respondent No. 2) and consequently seeking reinstatement with continuity of service and back wages. I will deal with the question of second relief first.
6. Re-illegality of termination of petitioner's service.
It is the case of the petitioner as noticed above that when the petitioner served the copy of the writ petition on the respondents on 26.2.1998 her services were terminated on the same date. she has challenged this termination by raising the following contentions:
(a) the termination order is malafide and she is punished for coming to the Court seeking relief of "equal pay for equal work";
(b) the termination order is bad in law as one month notice pay in liew thereof was not given to the petitioner alongwith her termination;
(c) person junior to the petitioner was retained in service and, therefore, is was arbitrary and discriminatory.
In the counter affidavit filed by the respondents it is mentioned that G.M. (Admn.) namely respondent No. 2 Wrote Communication dated 10.2.1998/12.2.1998 to the incharge of Noida Emporium stating that the services of the petitioner were extended upto 26.2.1998 and thereafter her service has not to be continued. Hence after peacefully taking charge from her she be relieved from 26.2.1998 (A.N.). This was followed by letter dated 23.2.1998 referring to earlier letter dated 12.2.1998 addressed to Incharge of the Emporium at Baba Khadak Singh Marg stating that charge from the petitioner should be a peacefully taken and she should be relieved on 26.2.1998 (A.N.) from the service of the Nigam and information be sent to the head officer. According to the respondent, pursuant to these letters charge was taken from her on 26.2.1998 and she was relieved from the service. Letter dated 26.2.1998 was written to the petitioner to this effect. Therefore, the respondents contend that it was wrong to allege that the decision was taken to terminate the service after she supplied advance copy of the writ petition to the respondents on 26.2.1998. It is further stated by the respondents that by order dated 27.2.1998 her salary for the month of December, 1997, January, 1998 and upto 26th February, 1998 and one month salary in liew of this period had been sent by cheque No. 258380 for a total amount of Rs. 7463/- to the petitioner. However, the envelop containing the cheque was received back. The reason for terminating the service of the petitioner was explained in paragraph (e) of the affidavit which is reproduced below:-
"That briefly submitting that the respondent M.P. Hasthashilp Vikas Nigam Limited is a Govt. Company and it employs sales personnel on contract basis as depending on the sales and of its sales out-lets. That looking to the circumstances like festivals, exhibitions, and "situations of sales, when requirement of sales personel is mote than sanctioned posts then only the Nigam employ on contract basis. It is also important to mention here that the petitioner was employed on contract basis in the sale outlet at Baba Kharag Singh Marg Emporium. The Emporium belongs to M.P. Laghu Udyog Nigam. The Nigam has only been given a sale counter in the emporium. There is no post sanctioned by Board of Directors for these counters. Hence employees are taken on contract basis against requirement. The Nigam craves to refer the service regulations at the time of arguments. That the respondents, in order to reduce the financial expenditure and also due to surplus staff, decided not to continue the services of surplus contracted staff. That accordingly, the Corporation decided to reduce staff on several development centers and sales outlets, It is important to mention here that even the sales have gone down in almost all the sales outlets. That the petitioner was appointed on contract basis and she was working at the sale counter of the Nigam at Baba Khadak Singh Marg where sales have gone down to Rs. 4.28 lakhs for the years 1997-98 whereas the sales for the year 1996-97 were Rs. 10.20 lakhs. That for this reason also the decision had been taken by the respondents not to continue the contactual services of some of the its staff and to reduce the financial expenditure and to discontinue the services of surplus contracted staff. That accordingly, the respondent corporation has discon tinued the petitioner from the services. It is also important to mention here that the post on which the petitioner was appointed was not advertised. As referred above, these sale counters will be closed in near future due to shortage of sale. In fact, due to decrease in sale, the Nigam has taken a decision to close the sale counter at Baba Khadak Singh Marg, where the petitioner was employed on contract basis. The sale counter has been closed in the month of April, 1998 by order dated 1.4.1998 marked Annexure R-43. The goods have been sent back to the Showroom at Noida".
7. It is also mentioned that the petitioner was employed on contract is which was continued from time to time. During this period she was asked to improve her work as she used to waste her time in moving around in the show room and talking unnecessary but she did not change her attitude and for this reason also it was decided not to extend the contractual period.
8. Regarding the closur of sale counter at Baba Khadak Singh Marg, the respondent has filed affidavit dated 8th September, 1998 wherein it is mentioned as under:-
"That the Madhya Pradesh Hasthashilp Vikas Nigam have been provided a sale counter/Hasthashilp gallery in the Mrignayani Emporium of M.P. Laghu Udyod Nigam. The respondent Nigam do not have either a shop or any emporium at that place. That the emporium belongs to Laghu Udyog Nigam and M.P. Hastashilp Vikas Nigam were given a small counter for using for sale purposes. That this counter has been closed with effect from 31.3.98.
The entire goods have been sent to Noida. The counter was permitted to be used by M.P. Laghu Udyog Nigam and now the counter is closed completely."
9. Controverting the allegations of the petitioner that Shri Yogesh Nayyar junior to the petitioner was appointed, affidavit dated 8th September, 1998 further states as under :
"That I state that at Baba Khadak Singh Marg at the sale counter, here were 3 employees:-
(i) Shri Kishan Rao who was working as incharge and was appointed in 1991.
(ii) Rajesh Sharma - peon, who was working from 1990.
Both these employees have been transferred to the Noida showroom of the respondents Nigam. That the third employee, the petitioner, has already ceased to be in service after the termination order. That, in the said counter, there were no other employees.
(c) That I state that one employee, Shri Yogesh Nayyar was appointed for Noida showroom. That for some time he was sent at Baba Kharag Singh Marg to help the activities. That his services were specifically for Noida showroom. That for some time he worked at sale counter at Baba Kharag Singh Marg and then his services were returned back to the Noida showroom for where he was initially appointed.
4. That I state that Shri Yogesh Nayyar is neither junior to the petitioner, nor he is an employee of the sale counter at Baba Kharag Singh Marg. Manish Sharma left service in 1997."
10. During the course of the arguments, the petitioner could not controvert and rather conceded to the fact that sale counter at Baba Kharag Singh Marg had been closed down. However, his submission was that the petitioner could be accommodated at Noida particularly when other two employees working at Baba Kharag Singh Marg New Delhi were transferred to Noida and Shri Yogesh Nayyar junior to the petitioner was also retained in the service at Noida. However, there is no force in this submission of the petitioner in view of the fact that two employees who were working at Baba Kharag Singh Marg sale counter at New Delhi were much senior to the petitioner having been appointed in the year 1990-91 as mentioned above. In respect to Shri Yogesh Nayyar it was stated as noticed above that he was appointed specifically for Noida show room and, therefore, his case cannot be compared with the petitioner who was appointed at show room in Delhi. It is also mentioned that there is no other vacancy at Noida office and, therefore, the petitioner cannot be accommodated. According to me the case of the petitioner cannot be compared with that of Yogesh Nayyar when two were appointed in different offices. Once sale counter at Baba Kharag Singh Marg New Delhi was closed down and it was decided not to extend the contract of the petitioner, the petitioner could compare her case with those working in Baba Kharag Singh Marg's sale counter only. Therefore, it cannot be said that termination is illegal on the ground that junior to the petitioner has been accommodated while terminating the service of the petitioner. It also cannot be held that the termination of service of the petitioner is male fide as decision to terminate her services was not taken on 26.2.1998 when advance copy of the instant petition was supplied to the respondents. Decision was taken in the office of respondent No. 1 at Bhopal on 10th February, 1998 i.e. much prior to the filing of the writ petition and consequently it is a coincidence that her contractual period was to come to an end on 26.2.1998 when the petitioner gave advance copy of the writ petition to the respondents.
11. This brings into discussion the point about the validity of the termination order on the ground that one month or pay in liew thereof was not given while terminating the service of the petitioner. The case of the respondent is that on 27th February, 1998 salary of the petitioner for December, 1997 January, 1998, and 26th February, 1998 alongwith one month notice pay was sent to the petitioner. It is thus clear that one month notice pay was not offered on 26th February, 1997 while terminating her service. The counsel for the petitioner relies upon the judgment of the Hon'ble Supreme Court in the case of Sayeed Azam Hussian Vs. Andhra Bank Ltd. reported in AIR 1995 S.C. 1350 to contend that payment of salary in liew of one month notice had to be simultaneous with termination of service and, therefore, such termination is illegal. A perusal of the said judgment would show that in the said case Hon'ble Supreme court was considering the Provisions of Section 25-F of the Industrial Disputes Act which relates to retrenchment of workmen. It is an admitted position in law that payment of notice pay and retrenchment compensation as per Section 25-F of the Industrial Act to a retrenched employee is a condition precedent and if such compensation and notice is not given before or simultaneous with the termination then termination is illegal. In the instant case there is no plea that there is violation of Section 25(F) of the Industrial Disputes Act. In fact there is no reference to the Provisions of Section 25(F) of the Industrial Disputes Act in the entire petition nor it was even orally argued. Therefore, the aforesaid judgment cited by the counsel for the petitioner is distinguishable and not applicable to the facts and circumstances of this case. It may also be relevant to mention that in the writ petition, the plea that termination is illegal on the ground that notice pay was not given is not even take and it was the point raised only at the time of arguments on the basis of aforesaid judgment. The contractual agreement which is on record states that the service of the petitioner could be terminated by giving one month's notice or one month's pay. Thus it cannot be said that payment of one month pay is condition precedent and the termination because illegal merely because one month's pay is not given simultaneously while terminating the services of the petitioner. In such a case the petitioner can, at the most claim one month notice pay and this has been given to her. It cannot be a ground to invalidate the termination. I may mention that dealing with the provisions of Rule 5 of the C.C.S. Temporary Services Rules it has been held in a numbers of Judgments that in case one month notice or pay is not given while terminating the service then the such termination does not become illegal.
Accordingly I held that termination of petitioner's service is not illegal.
12. Re-equal lay with equal work.
The petitioner has next contended that she is entitled to the pay scale of Rs. 950-1400 with other allowances and medical allowances on the basis of "equal pay for equal work". The appointment order of the petitioner shows that she was admittedly appointed on contract basis on a consolidated pay of Rs. 2000/- per month. she was not taken as a regular employee nor any procedure for appointment on regular basis was followed. In State of Haryana & Ors. Vs. Jasmer Singh & Ors. . The Hon'ble Supreme Court held that daily wager worker cannot be treated at par with the persons working on regular basis, and they cannot be paid minimum of regular pay scale. It would be worth while to notice the following observations of the Apex Court in the aforesaid judgment.
10. "The responders, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Harayana holding similar posts Daily rated workers are not required to possess the quali fications prescribed for regular workers nor do they have to fulfill the requirement relating to age. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred and his being subject to the disciplinary jurisdiction of the authority as prescribed which the daily rated workman are not subjected to. They cannot therefore, be equated with regular workmen for the purposes to their wages. Nor can they claim the minimum of the regular pay scale of the regularly employed".
13. Moreover, the petition lacks material particular about the duties being performed by her and the duties which are performed by regular employees appointed as well as sales persons. It is also not stated as to what are the recruitment rules for appointment to the post of sales persons and whether she fulfillled all these qualifications and, therefore, can be treated at par with these who are appointed as sales persons be regular basis. The duties which are performed by sales persons are also not mentioned. It is only stated that she is performing the same duties as are performed by other sales persons. In the absence of this material it is not possible to arrive at any definite conclusion in this petition.
14. For the aforesaid reasons, this prayer of the petitioner also cannot be allowed.
15. In view of my aforesaid discussion, the present writ petition has no merit and the same is accordingly dismissed, with no order as to costs.