Mr. G.C. Tayal, S/O Late Sh. Ram ... vs National Small Industries Corpn. ...
2003 Latest Caselaw 505 Del

JUDGMENT

Vijender Jain, J.

1. Rule.

2. The only prayer survives in the writ petition is the entitlement of the petitioner to the basic pay and allowances in Indian currency for the period from May 1989 to April 1993 together with increments as well as interest, as the same has been recovered by the respondent. The only dispute in this writ petition is with regard to payment of component of CCS and house rent allowance from the salary of the petitioner for the aforesaid period.

3. Mr. Sanat Kumar appearing for the respondent has contended that in terms of Clause 20 of the agreement which was entered into between Ministry of External Affairs and National Small Industries Corporation Ltd./respondent No. 1,the petitioner was only entitled to basic pay which he was getting in India along with foreign allowance.

4. For the proper interpretation and construction of the agreement on which reliance has been placed by respondent No. 1, two clauses are important which reads as under:

"1. The term 'Actual Cost shall include the following :

Cost of all incidental charges of the field unit such as:

1. Salaries and allowances including overtime payment of all staff (such of the staff and workers who are not on NSIC's nominal muster-roll) employed on execution of works, super-vision, accounts administration recruitment of labour, purchase and maintenance of store etc. Salary and allowances shall also include in fringe benefits as remuneration like foreign allowance, LTC, children educational allowance, CPF/EPF , remuneration, compensation, housing subsidy, leave encashment, gratuity, pensionary benefits, if any etc. that may become payable to staff as per the rules of the Corporation or Govt. of India/Nepal from time to time. This will include foreign allowance, free furnished accommodation, leave salary and pension contribution etc. to the staff posted to this unit on deputation admissible as per Ministry of External affairs rules pertaining to India based staff working on Indian aided projects in Nepal.

20. MANPOWER DEPLOYMENT FROM NSIC

The NSIC will execute the work including Engineers (Civil and Mechanical) for execution of civil work and implementing all the project. The cadre wise details of the officials with their salaries is given as under:

 1. Civil Engineers
    (Stationed at site) 1 Salary of Rs.7,500/-per month

2. Supervisors
   (Stationed at site)         2 Salary Rs.5200/- per month.

3.  Accounts
  (Stationed at site)          2 Salary Rs.4,500/-per month.

4.Engineer(Mechanical)  1 Salary Rs.7,500/-per month.
   (Stationed at Kathmandu)
 

The staff should be provided free furnished accommodation for the family, transport and medical facilities by NSIC. The salary in India shall also be protected. The other facilities as stipulated in clause 1(e) (i) to the field staff, shall also be applicable."

5. From the plain reading of the aforesaid two clauses it is clear that salaries and allowances shall include all fringe benefits or remuneration like foreign allowance, LTC, children educational allowance, CPF/EPF contribution, compensation, housing subsidy, leave encashment, gratuity, pensionary benefits, if any. This will also include foreign allowance, free furnished accommodation, leave salary and pension contribution etc. as the same are admissible as per Ministry of External Affairs Rules pertaining to India based staff working on Indian aided projects in Nepal. Clause 20 of the aforesaid agreement details the salaries which is to be given. The petitioner was deputed for supervising the construction work of Industrial estate in Nepal and his salary was 5200/- per month. There is further stipulation in the aforesaid clause that the staff shall be provided free furnished accommodation for the family, transport and medical facilities by respondent No. 1. Then comes in the important words in agreement that "the salary in India shall also be protected". The other facilities as stipulated in Clause 1 (e) (i) to the field staff shall also be applicable." Once the facilities which are stipulated in Clause 1 (e) (i) is also protected, then the deduction of any component of salary by the respondent is unwarranted. If the respondent wanted to give only basic pay then the word 'salary' ought not have been mentioned in the agreement instead word 'basic pay' ought to have been mentioned in Clause 1 (e) (i) of the agreement. Having not done so, the respondent cannot claim that the petitioner is not entitled to the salary which the petitioner was entitled to draw in India salary as per fundamental rules is comprised of basic pay plus CCS and house rent allowance. A person who goes outside the country to work goes in order to get better perks. It was the condition of the service on which the petitioner had gone abroad that he will be entitled to free furnished accommodation but that does not mean that he will not be entitled to his salary which he was entitled in India particularly when same was protected by the agreement. I see no force in the argument of the respondent. I direct the respondent to pay to the petitioner the amount which respondent has recovered i.e. the difference between basic pay and CCS plus HRA for the period from May 1989 to April 1993. The said components be paid by the respondent within eight weeks. If the same is not paid within eight weeks, the petitioner shall also be entitled to the interest @ 6% per annum.

6. Writ petition is allowed.

7. Rule is made absolute.