Mr. Ashish Tiwari vs Steel Authority Of India & Others
2001 Latest Caselaw 975 Del

ORDER

Vikramajit Sen, J.

1. The contention of the Petitioner/Applicant in the Writ Petition is that he is entitled to be regularised in the Executive Cadre of the Respondent (SAIL); that SAIL be directed to pay the same salary and other benefits are being paid to regular employees; and that the services of the Petitioner be not terminate during the pendency of the Writ Petition. The Respondent have been extending the temporary service of the Petitioner from time to time even though it appears that an Order to this effect had not been passed by the Court. The prayer in this application is for the issuance of directions to the Respondents to pay to the Petitioner equal amount of pay and allowances as has been paid to other employees who initially joined the Respondent Company at a consolidated amount and have been confirmed in the appropriate pay scale.

2. In the course of arguments, Counsel for the Respondent SAIL had disclosed that the offer of regular employment however, in the Non-Executive Cadre, had been made to the Petitioner but this was declined. On my inquiry as to whether the Petitioner would be willing to accept this appointment it was submitted that these salaries would be accepted provided all back wages were also paid. On the question of whether the Respondents would be willing to pay the extant salaries for Non-Executive Cadre to the Petitioner, without prejudice to his contentions in the Writ Petition, Learned Counsel for the Respondent had stated that he would have to obtain instructions from his client. There is, therefore, quite evidently a calcification of the stands on both sides.

3. On 28.2.2001, the Respondents has been directed to file an affidavit disclosing the total emolument of the staff who are maintaining files, drafting correspondence etc. a function which the Petitioner appears to be fulfillling. In response to this Order, an additional affidavit has been filed wherein it has been stated that as per the orders passed by the Labour Department of the Government of National Capital Territory of Delhi, the graduates are eligible for a monthly salary of Rs.3108/- together with allowances aggregating Rs.3179/-. The Petitioner, however, is getting a salary of Rs.3725/- per month. Mr. Rajiv Dutta. Learned Senior Counsel for the Petitioner, justifiably states that this response is evasive. But when the Respondents' offer to the Petitioner for regular employment in the non-Executive Cadre is recalled, the prevaricatory nature of the reply loses significance.

4. As has been mentioned above, the prayer in the application is for the payment of salaries of the Executive Cadre. If this prayer is granted, it would tantamount to virtually allowing the Writ Petition. At this interlocutory stage, it would be inappropriate to venture down such a path. Even otherwise, there is clearly insufficient data before the Court on the vexed question of whether the Petitioner is entitled to appointment under the Executive Cadre. The Petitioner must wait for a final disposal of the Writ Petition. However, it is not uncommon that once a party initiates legal action, the Respondents' attitude becomes more obdurate and persecutory. it was for this reason that an additional affidavit has been called for. Clearly, the Petitioner is receiving the minimum legal wages. in addition thereto since he has been offered a regular employment in a Non-Executive Cadre a bias and prejudicially attitude towards him cannot be successfully predicated by the Petitioner. In fact, it is he who has declined the offer. I see no reason for the Court to grant a relief which he has himself spurned and refused to accept. If he succeeds in the Writ Petition, thee may not be any obstacle in granting the back wages, together with interest thereon.

5. Learned Counsel for the Respondent has relied on Union of India and Others v. Pradip Kumar Dey, (2000) 8 SCC 580, in support of the argument that the Court in these proceedings cannot order wages/salary on a scale other than that offered by the Respondents. A careful reading of the judgment, however, discloses that there are exception to this rule inter alia, that if there is a violation of the 'equal pay for equal work' rule, Courts can interfere. In this Writ Petition, as has already been noticed above, it is not clear at this stage of the lis that the Petitioner is receiving salary less than others who are performing the same duties. It cannot also be held at this juncture that the Respondents' attitude is one of hostile discrimination. These exceptions, therefore, do not exist in the present case. If the Petitioner is successful in proving his case retribution in the form of compensatory costs can be awarded.

6. For these several reasons, I am not persuaded to allow the application and thereby direct the Respondents to pay allowance equal to those other employees in the Executive Cadre. This is, however, without prejudice to a decision on the merits of the case.

7. The application is dismissed. However, there shall be no order as to costs.