Delhi High Court
K.V. Chandrasekharan vs Union Of India (Uoi) And Ors. on 30 May, 2008
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
JUDGMENT Sanjiv Khanna, J.
1. The petitioner, Mr. K.V. Chandrashekharan has filed the present Writ Petition against Wasco India Limited (hereinafter referred to as the WAPCOS, for short) a Government of India Undertaking claiming payment of Bhutan Deputation Allowance as per the scales fixed by the Ministry of External Affairs, Government of India.
2. The petitioner was an employee in the Ministry of Water Resources, Government of India and was posted with the Central Water Commission (hereinafter referred to as the CWC, for short). During the period 30th October, 1985 to 30th April, 1991, he was posted on deputation as Assistant Engineer/Assistant Executive Engineer in Chukha Hydel Power Project, Bhutan. In this period, he was paid Bhutan Compensatory Allowance (hereinafter referred as BCA, for short) as per the scale fixed by the Ministry of External Affairs (hereinafter referred to as MEA, for short).
3. WAPCOS was awarded work for survey and investigation for preparation of detailed project report for Chukha Hydel Power Project-stage II. For the said work, WAPCOS wanted to engage services of surplus staff who had earlier worked in Chukha Hydel Power Project. A letter of request dated 6th April, 1991 was written by WAPCOS to the General Manager, Chukha Hydel Power Project stating that they would like to appoint a Liaison Officer (Technical) and others on deputation. The letter also stated that the existing allowance drawn shall be protected. However, no appointment was made in terms of the said letter.
4. After completing his deputation at Bhutan, on 30th April, 1991 the petitioner joined his parent Department, i.e. CWC and thereafter he applied for selection to the post of Liaison Officer (Technical) on deputation in WAPCOS. On 9th September, 1991, the petitioner was selected and offered appointment to the said post. Letter dated 9th September, 1991 stipulated that the petitioner would be governed by the usual terms and conditions of deputation of the Central Government issued by the Ministry of Water Resources and the detailed terms and conditions would be issued at an early date. By Office Order dated 21st October, 1991, the petitioner was posted at Bhutan as Liaison Officer (Technical). The Office Order also stipulated that during his posting at Bhutan, the petitioner would be governed by the terms and conditions as per the Annexure to the said letter. The relevant terms and conditions contained in the Annexure are as under:
Terms and conditions governing assignment of Experts deputed to Bhutan in connection with Investigation and Preparation of Detailed Projects Reports (DPRS) for Tala Hydro Electric Projects and Wangchu Reservoir Scheme - Bhutan.
The terms and conditions of appointment for the above said project for the officers and staff proceeding to Bhutan shall be the same as admissible to the officers/staff of the similar grade deputed to Bhutan under the Ministry of External Affairs Orders issued from time to time. A copy of each enumerated circular number related to the said terms and conditions is attached.
1. Q/FD/6910/10/86 dated 15.7.87 The terms and conditions are however subject to amendments by the Ministry of External Affairs from time to time.
MAIN FEATURES ARE AS UNDER:
a) x x x x
b) FOR SERVICES IN BHUTAN BASIC PAY plus (BCA) as admissible.
The (BCA) of Group 'A', 'B', 'C' & 'D' Officers Staff whose pay has been refixed in the revised pay scales under Central Civil Services (Revised Pay) Rules, 1986/Central Civil Services (Revised Pay) Amendment Rules, 1987 shall be reduced as follows. Deputationist will not be entitled to any deputation allowance during service in Bhutan.
x x x x x BHUTAN COMPENSATORY ALLOWANCE (SEE ANNEXURE-I) ATTACHED The minimum Compensatory allowance is Rs. 1945/- and maximum B.C.A. is Rs. 6090/- at Bhutan for different categories. This B.C.A. includes remuneration of two part time servants (domestic) which the Officers can engage on the standard rates of wages subject to entitlement and certification viz:
Rs.
TLE : 366* SLE : 305* MLE : 244* * subject to certification
5. Annexure I referred to under the heading 'Bhutan Compensatory Allowance' was also enclosed with the terms and conditions. Annexure 1 quantified the BCA admissible to each category of post w.e.f. 1st December, 1987 as per which Executive Engineer who was drawing a pay exceeding Rs. 3500/- was to be paid Rs. 6090/- as BCA and Assistant Executive Engineer drawing a pay not exceeding Rs. 3000/-, was to be paid Rs. 5410/- as BCA. It is clear from Annexure 1 governing the terms and conditions of appointment that the amount payable towards BCA was specifically quantified and mentioned therein.
6. It is an admitted case of the parties that the BCA fixed by the MEA was much higher than BCA mentioned in Annexure 1 to the terms and conditions and as mentioned in the Office Order dated 21st October, 1991 by which the petitioner was posted as Liaison Officer (Technical) at Bhutan.
7. The petitioner claims that there is violation of the terms and conditions of employment and he is entitled to BCA of Rs. 15,280/- w.e.f. 1st December, 1991 as fixed by MEA. This enhancement was made by MEA by letter dated 18th March, 1993 with retrospective effect from 1st December, 1991. The petitioner claims that he has written letters to the respondent-Company against the payment of BCA on lower scale. The petitioner has enclosed letter dated 8th January, 1992 with the Writ Petition. It is stated in this letter that the petitioner while working on deputation with the Chukha Hydel Power Project till 30th April, 1991, was getting 25% more BCA than what was being paid to him. He protested and submitted that the emoluments drawn by him while working with Chukha Hydel Power Project should be protected and accordingly requested that he shall be paid arrears w.e.f. 25th October, 1991 onwards. In the next letter dated 18th June, 1992 written by the petitioner, it was stated that MEA had accorded grant of 25% adhoc increase in BCA w.e.f. 1st December, 1991. The respondent - company was requested to look into the matter and sanction higher BCA. The third letter written by the petitioner is dated 6th January, 1993. In this letter, it was stated that the petitioner had agreed to be governed by the terms and conditions of deputation as was mentioned and enclosed with the Office Order dated 21st October, 1991. It appears that thereafter the MEA, by its letter dated 18th March, 1993, increased BCA to Rs. 15,280/- for the post of Executive Engineer drawing pay exceeding Rs. 3500/- p.m. This Office Order was made effective from 1st December, 1990. The petitioner claimed benefit of this Office Order.
7. The petitioner thereafter on 1st May, 1993 wrote a letter in which he raised the issue of BCA as under:
There was an ad-hoc increase of 25% in the B.C.A. w.e.f. 1.12.1990 and a further hike from 1.12.1991. A copy of the latest order on B.C.A. issued by M.E.A. vide their letter No. E-IV/235/3/93 dated 18.3.93 is enclosed for ready reference. As against these hikes, I am being paid an additional 33% B.C.A. (on 1987 rates) that too, from 1.4.1992 onwards, which is far less than the actual B.C.A. The total amount of B.C.A. being paid to me, at present is not even half of my actual entitlement. As such, I request your goodself to kindly arrange to pay full B.C.A. to me along with the arrears accrued so far, at an early date.
8. Some other letters were also written by the petitioner thereafter. On 28th February, 1995, the petitioner was repatriated to his parent Department. He then again raised this issue with WAPCOS and claimed alleged arrears of BCA for the period between 25th October, 1991 to 28th February, 1995.
9. WAPCOS denied its liability to pay the said amount on the ground that payment of BCA was regulated by the provisions of Office Order dated 21st October, 1991 and the amount paid to the petitioner was in terms of the said Order. It is further stated that WAPCOS though being a Government of India Undertaking is distinct from Government of India and is managed and run on commercial lines. It is stated that the rates of BCA prescribed by the Government of India or the MEA are not applicable to WAPCOS. It is also stated that WAPCOS revised BCA for its employees @ Rs. 33% on 1st April, 1992 and 20% w.e.f. 1st April, 1994 after reviewing the working estimates. It is also pointed out that the petitioner has been paid similar allowance as was paid to other employees of WAPCOS working at Bhutan.
10. The respondents have also relied upon the letter dated 21st October, 1992 written by Deputy Finance Advisor, WAPCOS to the petititoner. It is stated in this letter that the letter dated 2nd September, 1992 written by the petitioner regarding pay protection was referred to and examined but the petitioners claim cannot be accepted. It was stated that pay protection could be granted for the last pay drawn by the petitioner in the parent office and not the last pay drawn by the petitioner in Chukha Hydel Power Project. With regard to BCA, it was stated that the same was regulated as per the provisions made in the working cost estimate of the project and the allowance payable to the employees of the Government of India posted at Bhutan does not apply to WAPCOS. The petitioner disputes receipt of the said letter and states that the same was never served on him and he did not have knowledge about the same. It will be difficult for this Court to decide this controversy without recording evidence. This is a disputed question of fact.
11. The petitioner was admittedly originally appointed in WAPCOS on deputation for a period of two years w.e.f. 21st October, 1991. He was regularly paid salary including BCA. It is not the case of the petitioner that he has been paid a lower amount towards BCA compared to other employees of WAPCOS. The petitioner was, therefore, throughout aware and had knowledge of the fact that he was being paid BCA as per WAPCOS policy and decision and not as per the scale fixed by the MEA. This position continued from 21st October, 1991 onwards till the first term of deputation expired after two years. The term thereafter was extended by letter dated 6th January, 1993 on the same terms and conditions as were mentioned in the Office Order dated 21st October, 1991. The term was once again extended by letter dated 16th June, 1993 upto 31st May, 1994. As already stated above, the petitioner was repatriated to his parent Department on 31st May, 1995. The petitioner accepted the said extensions granted by WAPCOS. He did not protest and ask for his repatriation because he was not being paid BCA as per the scales provided by the MEA. The petitioner may have written some letters but as per his own case, he did not receive any response in writing from WAPCOS. The BCA paid to the petitioner was as per the scales prescribed by WAPCOS. Preponderance predicates therefore that the petitioner was fully aware and had knowledge of the fact that BCA payable by MEA instructions was not implemented and applied by WAPCOS. They had their own policy for payment of BCA. The petitioner also agreed to extension of his deputation period inspite of BCA being paid to him at a lower scale than what he had demanded and what was payable by MEA. He never asked for his repatriation on the ground that the BCA being paid to him was not acceptable.
12. Pay protection mentioned in the earlier letter dated 6th April, 1991 is not applicable to the petitioner. The petitioner had applied for appointment after he was relieved and had rejoined his parent Department-CWC on 30th April, 1991. The appointment was not in terms of the letter dated 6th April, 1991. The petitioner has mentioned in the Writ Petition that the Managing Director, WAPCOS had written letter dated 7th May, 1991 to the Chairman, CWC asking him to spare the services of the petitioner for a period of two years. Thereafter, the petitioner applied for and was selected and appointed on 15th October, 1991 and terms and conditions of his appointment at Bhutan were issued to him on 21st October, 1991.
13. I have quoted the terms and conditions of appointment mentioned in the Order dated 21st October, 1991. The first portion of the said terms and conditions states that officers and staff proceeding to Bhutan shall be the same as is admissible to the officers and staff of the similar grade under the Orders that may be issued by MEA from time to time. The first part therefore, stipulates that an officer would be entitled to the same pay and allowance as was paid to officers working under the MEA and orders issued by the said Ministry from time to time would apply. This clause is general in nature as also indicated by the placement under the heading "terms and conditions". It is well established that when operative part of the deed is clear it cannot be controlled by the recital or other parts of the deed. If the operative part is ambiguous or goes beyond the recitals or is general it may be controlled by the recitals and other parts of the deed.
14. With regard to BCA there was a separate clause mentioned in the terms and conditions. The said clause as quoted above stipulates the minimum and the maximum BCA that shall be paid for different categories. There was also an annexure to the terms and conditions quantifying and specifically stipulating the BCA that was payable for each category of post depending upon the pay scale. The maximum amount payable towards BCA was Rs. 6090/. Therefore, the petitioner was fully aware of the BCA which was payable to him as the amount was fixed and quantified in Annexure 1. An express covenant overrides a general clause. A deed/document has to be read as a whole to ascertain the intention of the parties and the meaning. Every word and clause must be given effect to. It is only when conflict between two clauses is irreconcilable that the earlier clause overrides the later. However when a later clause does not destroy but qualifies the earlier clause, then the two have to be read together.
15. The amount payable towards BCA was the subject matter of a specific clause in the terms and conditions of appointment. The said clause will override any general recital made below the heading. In the case of U.P. SEB v. Hari Shankar Jain reported in (1978) 4 SCC 16, the Supreme Court while dealing with the question of applicability of the Industrial Employment (Standing Orders) Act, with matters related to the employment conditions of the employees of the UP State Electricity Board, overriding the provisions of Section 79 of the Electricity Supply Act, has held that the Standing Orders Act would apply to all matters specifically dealt with notwithstanding the provisions of Section 79 of the Electricity Supply Act. The Court in the said case observed as under:
8. The maxim "Generalia specialibus non derogant" is quite well-known. The rule flowing from the maxim has been explained in Mary Seward v. Owner of the "Vera Cruz" as follows:
Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
The question in Seward v. Owner of the "Vera Cruz" was whether Section 7 of the Admiralty Court Act of 1861, which gave jurisdiction to that Court over "any claim for damage done by any ship" also gave jurisdiction over claims for loss of life which would otherwise come under the Fatal Accidents Act. It was held that the general words of Section 7 of the Admiralty Court Act did not exclude the applicability of the Fatal Accidents Act and therefore, the Admiralty Court had no jurisdiction to entertain a claim for damages for loss of life.
9. The reason for the rule that a general provision should yield to a specific provision is this: In passing a special Act, Parliament devotes its entire consideration to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former Special Act unless it appears that the Special Act again received consideration from Parliament. Vide London and Blackwall Railway v. Limehouse District Board of Works, and Thorpe v. Adams. In J&K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P., this Court observed (at p. 1174):
The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions, one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect.
16. The above observations dealing with interpretation of statutes is apposite and are equally applicable for interpreting the terms and conditions of appointment. Terms and conditions of appointment of the petitioner were contractual in nature. It was open to the parties to agree or to not accept the terms and conditions. It is difficult to accept the contention of the petitioner that he was entitled to BCA at a rate higher than the figures mentioned in the terms and conditions of appointment on the basis of the general clause which stipulates that staff and officers posted at Bhutan would be given the same grade as payable to employees under the MEA. This will make the clause relating to BCA fixing the maximum and the minimum otiose and redundant. It will make the clause relating to BCA nugatory. However, it is possible to harmoniously read both the clauses. Therefore it is not possible to accept the contention raised by the petitioner.
17. I may also note that the present Writ Petition has been filed for recovery of money under a contract. Normally in respect of contractual disputes a Writ Petition is not an appropriate remedy. When allegations of breach of contract are made a party should file a civil suit for adjudication of the disputes. I also find that past claims made by the petitioner in the present Writ Petition which was filed on 4th October, 1996 are barred by limitation in respect of the period prior to 7th October, 1993.
18. Learned Counsel for the respondent had also raised preliminary objection about the maintainability of the petition against WAPCOS on the ground that it is not a State under Article 12 of the Constitution of India. I may note here that the Writ Petition was originally dismissed by this Court vide Order dated 27th May, 1998 holding that a writ petition against WAPCOS was not maintainable as it was not a State. A Division Bench of this Court in LPA No304 of 1998 had set aside the said Order and had held that the petitioner was a State and therefore writ petition was maintainable. The Supreme Court by Order dated 22nd June, 1999 granted the Special Leave Petition and the Order passed by the Division Bench was set aside and the matter was remanded back to the Single Judge to decide afresh the question whether WAPCOS is a State without being influenced by any observation made by the Division Bench.
19. The admitted position is that the WAPCOS is a Government of India Undertaking. It is a company registered under the Companies Act, 1956 but the majority shares are held by the Government of India. Memorandum and Articles of Association of WAPCOS placed on record shows that it was incorporated on 26th June, 1969 and the President of India was one of the subscribers. The other subscribers were Chairman, Vice Chairman of the Central Water and Power Commission under Ministry of Irrigation and the Joint Secretary, MEA. The only plea taken by the respondent-WAPCOS in the counter affidavit is that WAPCOS is a Company incorporated under the Companies Act, 1956 and therefore it is not a State and no other ground or plea is taken. However, in support of the said plea, during arguments reliance was placed upon the judgment of the Rajasthan High Court in the case of WAPCOS Karamchari Sangh v. Union of India and Ors. (Writ Petition Civil No. 2335/1992). In the said case Rajasthan High Court had relied upon the decision in the case of Mohan Khanna v. National Council of Education, Research and Training and Ors. and held that a company being a juristic personality is not a State. It was also observed that the respondent-Company is not strictly performing governmental functions and its primary objects were to establish, provide and perform engineering and related technical and consultancy services for development of water resources, irrigation and drainage, electric power, flood control and water supply projects. I may note here that a Constitutional Bench of the Supreme Court in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. has examined this issue in depth and detail. Judgment in the case of Mohan Khanna (supra) was also considered and it was held that the said decision strikes a note of caution that tests as formulated in the earlier decisions in the cases of Ajay Haisa v. Khalid Mujib Serhrawardi , Sukhdev Singh v. Bhagat Ram , Ramanna Dayaram Shetty v. International Airport Authority , Som Prakash Rekhi v. Union of India , should not be regarded as conclusive or clinching but merely indicative. It was held that NCERT was an autonomous body whose activities were not related to governmental function and the government control was confined only to proper utilization of grant and since its funding was not entirely from Government, NCERT did not satisfy the requirements of a State. The tests as formulated in Ajay Hasia's case are as under:
(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15) (3) It may also be a relevant factor...whether the corporation enjoys monopoly status which is State-conferred or State-protected. (SCC p. 508, para 15) (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15) (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16) (6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government
20. In the case of Air India Statutory Corporation and Ors. v. United Labour Union and Ors. , it was held as under:
26. (1) The constitution of the corporation or instrumentality or agency or corporation aggregate or corporation sole is not of sole material relevance to decide whether it is by or under the control of the appropriate Government under the Act.
(2) If it is a statutory corporation, it is an instrumentality or agency of the State. If it is a company owned wholly or partially by a share capital, floated from public exchequer, it gives indicia that it is controlled by or under the authority of the appropriate Government.
(3) In commercial activities carried on by a corporation established by or under the control of the appropriate Government having protection under Articles 14 and 19(2), it is an instrumentality or agency of the State.
(4) The State is a service corporation. It acts through its instrumentalities, agencies or persons - natural or juridical.
(5) The governing power, wherever located, must be subject to the fundamental constitutional limitations and abide by the principles laid in the directive principles.
(6) The framework of service regulations made in the appropriate rules or regulations should be consistent with and subject to the same public law, principles and limitations.
(7) Though the instrumentality, agency or person conducts commercial activities according to business principles and are separately accountable under their appropriate bye-laws or memorandum of association, they become the arm of the Government.
(8) The existence of deep and pervasive State control depends upon the facts and circumstances in a given situation and in the altered situation it is not the sole criterion to decide whether the agency or instrumentality or persons is by or under the control of the appropriate Government.
(9) Functions of an instrumentality, agency or person are of public importance following public interest element.
21. These tests are not rigid principles and in each case it has to be examined whether the body can be considered to be a State within the meaning of Article 12. In the case of Pradeep Kumar Biswas (supra), it was observe as under:
40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
22. The test which is to be applied is whether functional administrative and financial control of the Government was deep and pervasive. In the case of Federal Bank Limited v. Sagar Thomas and Ors. , it was observed:
From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.
23. In the present case, the plea taken by the respondent-WAPCOS is that it is a Company and therefore not a State. The said broad plea is obviously contrary to and cannot be accepted in view of the judgment in the case of Pradeep Kumar Biswas (supra). The decision of the Rajasthan High Court requires consideration in view of the subsequent decision of the Constitutional Bench of the Supreme Court in the case of Pradeep Kumar Biswas (supra). The respondent-WAPCOS has not denied that the majority shares in the said Company are held by the Government of India. It is also not denied that the petitioner was a government servant who was sent on deputation to a government-Company. These indicate that the respondent-WAPCOS is a State. However, I wish to clarify that the above findings should not be treated as binding and as a precedent in other cases as the relevant materials have not been made available and are not on record.
24. In view of the findings given above, the Writ Petition is dismissed.
In the facts and circumstances of the case, there will be no order as to costs.