Jharkhand High Court
Bira Ram vs The State Of Jharkhand; on 4 September, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6704 of 2023
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Bira Ram, Age-70 Years, S/o Late Shiv Pujan Ram,
Resident of Argora Housing Colony, Quarter No-H.39,
P.O.-Doranda, P.S.-Argora, Dist-Ranchi, Pin Code-
829119, Jharkhand.
....Petitioner
Versus
1. The State of Jharkhand;
2. Principal Secretary, Department of Water Resources,
Government of Jharkhand, Nepal House, PO+PS-
Doranda, Ranchi;
3. Joint Secretary, Department of Water Resources,
Government of Jharkhand, Nepal House, PO+PS-
Doranda, Ranchi.
....Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Dr. Ashok Kr. Singh, Adv.
For the Resp.-State : Mrs. Soumya S. Pandey, A.C. to A.A.G.-I
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06/Dated:-04.09.2024
Heard learned counsel for the parties.
2. The instant writ application has been preferred by the
petitioner praying therein for a direction upon the respondent
authorities to make payment of the difference of salary for the
period from 28.03.2003 to 02.08.2008 in pay-scale of
Superintending Engineer when the petitioner was working in the
capacity of Superintending Engineer, but receiving the salary in
the pay-scale of Executive Engineer.
The petitioner has further prayed for similar relief to
the effect for a direction for payment of difference of salary in the
pay-scale of Chief Engineer from 30.07.2008 to 06.07.2010 and
Engineer-in-Chief from 07.07.2010 to 31.01.2013, as the
petitioner was working in the capacity of Chief Engineer and
Engineer-in-Chief, respectively, but receiving the salary of
Executive Engineer.
The petitioner has further prayed for quashing of the
order dated 23.03.2007 issued under memo No.670 passed by
respondent authorities, whereby though, his suspension was
revoked, however, it was ordered that he would not be getting full
salary for the period of suspension.
3. The brief fact of the case is that after creation of State
of Jharkhand, petitioner's service was allotted to the Jharkhand
Cadre in the department of Water Resources, from where he
retired on 31.01.2013. The petitioner's last posting as an
Executive Engineer was in Paschim Koshi Nahar. Thereafter, the
petitioner was transferred and posted as Superintending Engineer,
Department of Water Resources, Siwan vide letter dated
18.03.2003 and in the said department he worked as
Superintending Engineer from 28.03.2003 to 23.05.2006.
During this period, though he received the salary of
Executive Engineer, but he worked as current charge of
Superintending Engineer. Likewise, on 23.05.2006 he was posted
as Chief Engineer with the substantive post of Executive Engineer
and finally the petitioner was given current charge of Engineer-in-
Chief vide order dated 05.07.2010. Thus, the petitioner has made
two-fold prayers:
(i) With regard to payment of full salary for the respective
posts in which he has worked in current charge as against
ad hoc charge
(ii) The order of punishment; whereby he was ordered not to
have full salary during the period of suspension.
At this stage, it is necessary to indicate that during
course of his service, with regard to a disciplinary proceeding an
order of punishment was issued vide order dated 23.03.2007;
whereby it was ordered that the petitioner would not be entitled to
have full salary for the said post and he will be entitled only for
subsistence allowance.
4. So far as the first issue with regard to payment of full
salary for the respective periods in which the petitioner has
worked as current charge; may be that of Superintending
Engineer or Chief Engineer or Engineer-in-Chief is concerned;
learned counsel submits that the law is well settled that if an
employee works in current charge and not on ad hoc basis, he
would be entitled for full salary for that particular period, in which
the concerned employee worked in full capacity/current charge.
He further draws attention of this Court towards the
supplementary affidavit wherein he has annexed several orders on
similar issues delivered by this Court.
5. So far as the second issue is concerned, learned
counsel submits that the order of punishment was issued without
issuing any show cause notice for not being paid full salary; as
such, the same is bad in law.
6. Learned counsel for the respondents, apart from
relying on para-No.17 of her counter affidavit, also raised an
objection of delay and laches and contended that no person
should be given relief if he is not watchful of his rights. She has
also referred to paragraph 6 of the judgment passed in the case of
U.P. Jal Nigam and Another v. Jaswant Singh and Another
reported in (2006) 11 SCC 464 and paragraph 32 and 33 of the
judgment passed in the case of Chairman, State Bank of India
and Another v. M.J. James reported in (2022) 2 SCC 301;
accordingly, she submits that even if a person is entitled for his
rights, he should not act as a fence sitter and wait for the cases of
other co-employees and then knock the door of this Court.
7. Having heard learned counsel for the parties and after
going through the documents available on record and the
averments made in the respective affidavits, it appears that the
facts are admitted in this case, inasmuch as, while the petitioner
was posted as Executive Engineer on substantive post, he was
directed to take charge of Superintending Engineer as current
charge. Subsequently, he was also directed to take charge of Chief
Engineer as current charge, while he was on substantive post of
Executive Engineer and again, he was allotted the charge of
Engineer-in-Chief as current charge; though he retired from
service in the year 2013 as Executive Engineer but practically he
worked as current charge holder for Superintending Engineer,
Chief Engineer and Engineer-in-Chief for the respective period as
indicated herein above.
8. At this stage, it is unfortunate to observe that in the
State of Jharkhand, majority of cases are coming before this Court
in which the employees are given current charge on higher post
but not giving substantive promotion in that post. This Court fails
to understand as to why, the Government is sitting tight over the
matter and not giving full-fledged promotion to their respective
employees.
9. Be that as it may. So far as the first question / issue
with regard to payment of full salary to an employee, who has
worked on current charge on a full-fledged basis and not on ad
hoc basis, is entitled for the full salary or not is concerned; on this
issue, there is not much to decide, inasmuch as, the issue has
been decided right from the stage of State of Punjab and Anr. v.
Dharam Pal reported in (2017) 9 SCC 395. Thereafter, the ratio
decided in the case of Dharam Pal (supra), was subsequently
adopted by almost all High Courts of the country and particularly
this Court; as such, the issue whether the petitioner is entitled for
full salary for the period of current charge on full-fledged basis,
the issue goes in favour of the petitioner and the petitioner would
be entitled for full salary for the post of Superintending Engineer,
Chief Engineer, and Engineer-in-Chief for the respective periods
he worked as current charge and not on ad hoc basis. For brevity
relevant para 20 and 21 of the aforesaid judgment (Dharam Pal
(supra) is extracted hereinbelow:
"20. In Hari Om Sharma [Secy.-cum-Chief Engineer v. Hari Om Sharma,
(1998) 5 SCC 87 : 1998 SCC (L&S) 1273] , the respondent was promoted
as a Junior Engineer I in 1990 and had been continuing on that post
without being paid salary for the said post and without being promoted
on regular basis. It was in this situation, he approached the Central
Administrative Tribunal which allowed the claim petition with the
direction that the respondent shall be paid salary for the post of Junior
Engineer I. That apart certain other directions were also issued. The
Court took note of the fact that the respondent was promoted on a stop-
gap arrangement as Junior Engineer I and opined that this by itself
would not deny his claim of salary for the said post. In that context, the
Court held : (SCC p. 89, para 6)
"6. ... If a person is put to officiate on a higher post with greater
responsibilities, he is normally entitled to salary of that post. The
Tribunal has noticed that the respondent has been working on the
post of Junior Engineer I since 1990 and promotion for such a long
period of time cannot be treated to be a stop-gap arrangement."
21. After so stating, the Court proceeded to opine thus : (Hari Om Sharma
case [Secy.-cum-Chief Engineer v. Hari Om Sharma, (1998) 5 SCC 87 :
1998 SCC (L&S) 1273] , SCC pp. 89-90, para 8)
"8. The learned counsel for the appellant attempted to contend that
when the respondent was promoted in stop-gap arrangement as
Junior Engineer I, he had given an undertaking to the appellant
that on the basis of stop-gap arrangement, he would not claim
promotion as of right nor would he claim any benefit pertaining to
that post. The argument, to say the least, is preposterous. Apart
from the fact that the Government in its capacity as a model
employer cannot be permitted to raise such an argument, the
undertaking which is said to constitute an agreement between the
parties cannot be enforced at law. The respondent being an
employee of the appellant had to break his period of stagnation
although, as we have found earlier, he was the only person
amongst the non-diploma holders available for promotion to the post
of Junior Engineer I and was, therefore, likely to be considered for
promotion in his own right. An agreement that if a person is
promoted to the higher post or put to officiate on that post or, as in
the instant case, a stop-gap arrangement is made to place him on
the higher post, he would not claim higher salary or other attendant
benefits would be contrary to law and also against public policy. It
would, therefore, be unenforceable in view of Section 23 of the
Contract Act, 1872."
(emphasis supplied)
The principle postulated in the said case is of immense significance, for it
refers to concept of public policy and the conception of unconscionability
of contract."
10. The stand of the respondents taken in para 17 of the
counter affidavit has also been deliberated by this Court in other
cases wherein this ground has been demolished by this Court and
it was held that the petitioner of the said case will be entitled for
full salary.
11. Now, the objection of delay & latches which has been
raised by learned counsel for the respondents; this court is of the
view that the State should not take such grounds in order to deny
the legitimate right of an employee. The State should not act as a
private litigant. Moreover, the issue of payment of full salary in
current charge and working on a full-fledged basis, is since no
more res integra, as such, it was also the duty of the State
Government to pay the full salary for those employees, who were
working on current charge as full-fledged employee on the higher
post.
On the one hand, the State is not giving promotion to
the respective employees in their higher stage; and on the other
hand, they are taking the plea of laches. This cannot be accepted
by this Court. The judgment relied upon by the learned counsel
for the respondents will not be applicable in the instant case,
inasmuch as, the issue involved in the case of U.P. Jal Nigam and
Another (supra) was that the petitioners, who were the employees
of the Nigam, approached the Court for enhancement of their age
of retirement from 58 years to 60 years and that was done after
their retirement. So, the facts of that case that the age of
retirement of employees of Nigam was 58 years and there was no
confusion in that regard and the petitioners of the Nigam
approached the Court after delay, and in that background, the
said order was passed that any person cannot act as a fence sitter
and wait for the result of others.
12. In the case at hand, the issue is with regard to
payment of full salary for the current charge to an employee who
is working in a full-fledged capacity and not on ad hoc basis, is by
now well settled.
13. As stated hereinabove, even by this Court, the matter
has been settled, but it has been seen that similar matters
frequently comes to this Court on this issue. In this background;
it is observed that when the law is well-settled with regard to
payment of full salary to the employees and the same is not in
dispute; then there was no occasion for the respondents, not to
extend the pay as per the settled proposition of law, propounded
by this Court.
It goes without saying that the statement made by the
petitioner in the writ application that he has made several
representations has also not been denied, but the fact remains
that if the issue is settled, it was the duty and it is the duty of the
State to extend the full salary to those persons who are entitled if
they are unable to promote them on regular basis, because on the
one hand, they are taking work from such employee on current
charge and not on ad hoc basis and on the other hand, they write
one sentence in the order that they will get the salary of the
substantive post.
14. The stand of the Respondents that in the letter of
posting itself it was indicated that the petitioner will get the salary
of the substantive post is also of no substance. At this stage, it is
also profitable to refer to the judgment passed in the case of
Central Inland Water Transport Corpn. v. Brojo Nath
Ganguly, reported in (1986) 3 SCC 156 wherein the Hon'ble Apex
Court has also held that appointment or promotion of any
employee is a contract in service jurisprudence and unreasonable
contract cannot stand in the eye of law. For brevity relevant para
89 and 91 of the aforesaid judgment is extracted hereinbelow:
"89. Should then our courts not advance with the times? Should they still
continue to cling to outmoded concepts and outworn ideologies? Should we
not adjust our thinking caps to match the fashion of the day? Should all
jurisprudential development pass us by, leaving us floundering in the
sloughs of 19th century theories? Should the strong be permitted to push the
weak to the wall? Should they be allowed to ride roughshod over the weak?
Should the courts sit back and watch supinely while the strong trample
underfoot the rights of the weak? We have a Constitution for our country.
Our judges are bound by their oath to "uphold the Constitution and the
laws". The Constitution was enacted to secure to all the citizens of this
country social and economic justice. Article 14 of the Constitution guarantees
to all persons equality before the law and the equal protection of the laws.
The principle deducible from the above discussions on this part of the case is
in consonance with right and reason, intended to secure social and economic
justice and conforms to the mandate of the great equality clause in Article14.
This principle is that the courts will not enforce and will, when
called upon to do so, strike down an unfair and unreasonable
contract, or an unfair and unreasonable clause in a contract,
entered into between parties who are not equal in bargaining power.
It is difficult to give an exhaustive list of all bargains of this type. No court
can visualize the different situations which can arise in the affairs of men.
One can only attempt to give some illustrations. For instance, the above
principle will apply where the inequality of bargaining power is the result of
the great disparity in the economic strength of the contracting parties. It will
apply where the inequality is the result of circumstances, whether of the
creation of the parties or not. It will apply to situations in which the weaker
party is in a position in which he can obtain goods or services or means of
livelihood only upon the terms imposed by the stronger party or go without
them. It will also apply where a man has no choice, or rather no meaningful
choice, but to give his assent to a contract or to sign on the dotted line in a
prescribed or standard form or to accept a set of rules as part of the contract,
however unfair, unreasonable and unconscionable a clause in that contract
or form or rules may be. This principle, however, will not apply where the
bargaining power of the contracting parties is equal or almost equal. This
principle may not apply where both parties are businessmen and the
contract is a commercial transaction. In today's complex world of giant
corporations with their vast infrastructural organizations and with the State
through its instrumentalities and agencies entering into almost every branch
of industry and commerce, there can be myriad situations which result in
unfair and unreasonable bargains between parties possessing wholly
disproportionate and unequal bargaining power. These cases can neither be
enumerated nor fully illustrated. The court must judge each case on its own
facts and circumstances.
91. Is a contract of the type mentioned above to be adjudged voidable or
void? If it was induced by undue influence, then under Section 19-A of the
Indian Contract Act, it would be voidable. It is, however, rarely that
contracts of the types to which the principle formulated by us above applies
are induced by undue influence as defined by Section 16(1) of the Indian
Contract Act, even though at times they are between parties one of whom
holds a real or apparent authority over the other. In the vast majority of
cases, however, such contracts are entered into by the weaker party
under pressure of circumstances, generally economic, which results
in inequality of bargaining power. Such contracts will not fall
within the four corners of the definition of "undue influence" given
in Section 16(1). Further, the majority of such contracts are in a
standard or prescribed form or consist of a set of rules. They are not
contracts between individuals containing terms meant for those
individuals alone. Contracts in prescribed or standard forms or
which embody a set of rules as part of the contract are entered into
by the party with superior bargaining power with a large number of
persons who have far less bargaining power or no bargaining power
at all. Such contracts which affect a large number of persons or a
group or groups of persons, if they are unconscionable, unfair and
unreasonable, are injurious to the public interest. To say that such a
contract is only voidable would be to compel each person with whom
the party with superior bargaining power had contracted to go to
court to have the contract adjudged voidable. This would only result
in multiplicity of litigation which no court should encourage and
would also not be in the public interest. Such a contract or such a
clause in a contract ought, therefore, to be adjudged void. While the
law of contracts in England is mostly judge-made, the law of contracts in
India is enacted in a statute, namely, the Indian Contract Act, 1872. In order
that such a contract should be void, it must fall under one of the relevant
sections of the Indian Contract Act. The only relevant provision in the Indian
Contract Act which can apply is Section 23 when it states that "The
consideration or object of an agreement is lawful, unless ... the court regards
it as ... opposed to public policy.""
[Emphasis Supplied]
15. Having regard to the aforesaid discussion, so far as 1st
grievance of the petitioner is concerned; he would be entitled for
full salary for the respective post and the differential salary shall
be paid to him. Thus, 1st issue goes in favour of this petitioner.
16. However, the stand of the State counsel with regard to
laches will certainly apply in the 2nd issue i.e. in case of the
punishment order imposed upon the petitioner in the year 2007.
The petitioner really slept over the matter and knocked the door of
this Court after almost 15 years; as such, this Court is of the
opinion that for such act, he is not entitled for full salary for the
suspension period. Further, there is no document or specific
representation has been demonstrated by learned counsel for the
petitioner in order to show that immediately, after such order, he
has represented the department for such relief; as such, he is not
entitled for full salary for the period of suspension. Accordingly,
the 2nd issue goes against the petitioner.
17. Accordingly, the concerned respondent is directed to
make calculation of amount payable to the petitioner in the light
of observation made herein above. As stated hereinabove, the
petitioner would be entitled for full salary for the respective post
as such, the concerned respondent is directed to calculate the
differential salary i.e. the difference of salary for the period from
28.03.2003 to 02.08.2008 in pay-scale of Superintending
Engineer when the petitioner was working in the capacity of
Superintending Engineer, but receiving the salary in the pay-scale
of Executive Engineer, and also difference of salary in the pay-
scale of Chief Engineer from 30.07.2008 to 06.07.2010 and
Engineer-in-Chief from 07.07.2010 to 31.01.2013, as the
petitioner was working in the capacity of Chief Engineer and
Engineer-in-Chief, respectively, but receiving the salary of
Executive Engineer.
It is made clear that the entire exercise shall be
completed within a period of twelve weeks from the date of
receipt/production of copy of this order.
18. As a result, the instant writ application stands partly
allowed in the manner indicated hereinabove.
(Deepak Roshan, J.)
vikas/-
AFR
