Lok Pal vs State of Himachal Pradesh

Tarlok Singh Chauhan, J.—This appeal is directed against the judgment passed by the learned writ Court, whereby the claim of the writ petitioner-appellant for grant of consolidated salary of Rs. 43,000/- per month in terms of advertisement as against salary of Rs. 21,000/- per month actually being paid to him has been rejected.

The appellant''s case in brief may be noticed. Respondents vide advertisement dated 27.7.2012 invited applications for filling up seven different posts. Out of which there was one post of Assistant Professor in the subject of Chemistry, which was to be filled up on contract basis on a consolidated salary of Rs. 43,000/- per month. Appellant applied and was called for interview held on 21.8.2012. Subsequent to the interview he received telephonic information from mobile bearing number 94180-79253 informing him that he had been selected and should join by 25.8.2012. He accordingly joined on 25.8.2012.

On 29.8.2012 the appellant received his appointment letter which was dated 24.8.2012 and claims to have been shocked to see that the terms and conditions thereof were not in accordance with the advertisement notice and had been totally changed to his disadvantage. Instead of being offered consolidated salary of Rs. 43,000/- per month, the appellant was to be paid reduced maximum salary of Rs. 21,000/-. The appointment now offered to him was hourly/lecture basis and it was categorically mentioned that his services shall stand automatically terminated in case of joining of factuality on regular/contract basis. Objections filed by him were not redressed. It is in this background that the appellant filed a writ petition for grant of the following reliefs:--

"i) Issue a writ of certiorari to quash Annexure P-3 i.e. appointment letter dated 24-08-2012 received by the petitioner on 29-08-2012 to the extent whereby appointment has been offered to the present petitioner on a hourly/lecture basis.

ii) Issue a writ of mandamus directing the Respondent authorities to offer appointment to the present petitioner on a contract basis as was specified in the advertisement dated 27-07-2012 i.e. Annexure P-1."

During the course of hearing, the appellant has confined his claim to relief No. (ii) only.

The respondents filed their reply, wherein it was averred that the appellant himself had given a written undertaking that he was willing to be considered for the post in question on payment of Rs. 21,000/-, to be paid out of Student Welfare Fund and because this fact has been concealed by him, therefore, the petition deserved to be dismissed. It was also averred that the posts of lecturers are to be filled up through H.P. Public Service Commission and the filling up posts through the Commission is a long drawn process. The teaching schedule is a time bound work, therefore, respondent No. 3 vide its letter dated 18.5.2012 had sought permission to fill up the different posts out of the Student Welfare Fund. Accordingly respondent No. 2 vide its letter dated 24.5.2012 had given its necessary approval to fill the different posts from Student Welfare Fund on hourly basis.

Notably the respondents did not deny the issuance of the advertisement, but stated that the applications received in response to the advertisement were scrutinized by a committee and it was found that the Institute could not get the ''best talent''. Therefore, it was decided that undertakings be taken from the applicants called for interview that they are willing to be considered for hourly basis and would be paid out of the Students Welfare Fund and the decision of their appointment on contract/hourly basis under Students Welfare Fund was left to the Selection Committee.

The learned writ Court held that since the appellant himself had agreed to work on a reduced salary of Rs. 21,000/- per month, therefore, he was estopped from challenging the appointment letter dated 24.8.2012 and accordingly the writ petition was ordered to be dismissed.

We have heard the learned counsel for the parties and have gone through the records.

Apparently, the only reason accorded by the respondents for paying lesser remuneration to the appellant is that in response to the advertisement it had failed to get the best talent. If that be so, we fail to understand as to where at the first place was there a necessity of appointing the appellant after compelling him to accept a lesser remuneration. The respondents to counter this would then rely upon the undertaking given by the appellant and contend that it was the appellant, who himself had agreed to work on a lesser remuneration. Suffice it to say that this undertaking is in the nature of champerity and therefore, void.

This case reflects a sorry state of affairs where the respondents on the sheer strength of its bargaining power have taken advantage of their position and imposed wholly un-equitable and unreasonable condition of employment on their prospective employees, who did not have any other choice but to accept the employment on the terms and conditions offered by the respondents. This action of the respondents is violative of Article 14 of the Constitution. Here it is apt to reproduce relevant observations of the Hon''ble Supreme Court in the celebrated decision of Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, , which reads as under:--

"88. As seen above, apart from judicial decisions, the United States and the United Kingdom have statutorily recognized, at least in certain areas of the law of contracts, that there can be unreasonableness (or lack of fairness, if one prefers that phrase) in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control or as a result of situations not of their creation. Other legal systems also permit judicial review of a contractual transaction entered into in similar circumstances. For example, section 138(2) of the German Civil Code provides that a transaction is void "when a person" exploits "the distressed situation, inexperience, lack of judgmental ability, or grave weakness of will of another to obtain the grant or promise of pecuniary advantages........ which are obviously disproportionate to the performance given in return." The position according to the French law is very much the same.

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 nineteenth-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 under-foot 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 Art. 14. 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."

In terms of the aforesaid exposition of law, it is clear that this Court has the jurisdiction and power to strike or set aside the unfavourable term of contract of employment which purports to give effect to unreasonable bargain violating Article 14 of the Constitution.

The undertaking obtained from the appellant is so unfair and unreasonable that it shocks the conscious of this Court. It reflects the inequality of the bargaining power between the appellant and the respondents which emanates from the great disparity in the economic strength between the job seeker and job giver.

The appellant was compelled by circumstances to accept the offer made by the respondents, but then the mere acceptance of this offer would not give it a stamp of approval regarding its validity. It is an age old maxim that "necessity knows no law" and a person sometimes may have to succumb to pressure of the other party to bargain who is in stronger position. Although, it may not be strictly in place, but the Court cannot shut its eyes to this ground reality.

At this stage, it shall be apt to quote the following observations of the Hon''ble Supreme Court in Chairman and M.D., N.T.P.C. Ltd. Vs. Reshmi Constructions, Builders and Contractors, :--

"28. Further, necessitas non habet legem is an age-old maxim which means necessity knows no law. A person may sometimes have to succumb to the pressure of the other party to the bargain who is in a stronger position."

Notably the respondents herein are none other than the functionaries of the State who are expected to function like a model employer. A model employer is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation. A model employer should not exploit its employees and take advantage of their helplessness and misery. The conduct of the respondents falls short of expectation of a model employer.

The Hon''ble Supreme Court in its decision in Bhupendra Nath Hazarika and Another Vs. State of Assam and Others, has succinctly explained this position in the following terms:--

"61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.

Almost a quarter century back, this Court in Balram Gupta Vs. Union of India (UOI) and Anr, had observed thus: (SCC p. 236, para 13)

"13.... As a model employer the Government must conduct itself with high probity and candour with its employees."

In State of Haryana and others Vs. Piara Singh and others etc. etc., the Court had clearly stated: (SCC p. 134, para 21).

"21....The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."

In Secretary, State of Karnataka and Others Vs. Umadevi and Others, the Constitution Bench, while discussing the role of State in recruitment procedure, stated that if rules have been made under Article 3089 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer.

In Principal, Mehar Chand Polytechnic, Jalandhar City and Another Vs. Anu Lumba and Others, the Court observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to al the citizens of India entitled for being considered for recruitment in the vacant posts.

We have stated the role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretized . We say no more."

The respondents would still contend that it was the petitioner himself, who had agreed to the terms and conditions of his employment by accepting Rs. 21,000/- per month as remuneration instead of Rs. 43,000/- per month. Though, we have already held this contention of the respondents to be unsustainable yet the question, arises as to whether it is open to the State to disobey the Constitutional mandate merely because a person tells the State that it may do so? Complete answer to this question is found in the following observations of the Hon''ble Supreme Court in Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another, :--

"14. Such being the true intent and effect of Art. 14 the question arises, can a breach of the obligation imposed on the State be waived by any person? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no, objection to my doing it." I do not think the state will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State''s above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear,'' on the language of Art. 14 that it is a command issued by the Constitution to the State a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every Welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State."

This, in my opinion, is the true position and it cannot therefore be urged that it is open to a citizen to waive his fundamental rights conferred by Part III of the Constitution. The Supreme Court is the bulwark of the fundamental rights which have been for the first time enacted in the Constitution and it would be a sacrilege to whittle down those rights in the manner attempted to be done."

Therefore, once it is concluded by the aforesaid examination of law that it is not open to a citizen to waive off his fundamental right, then there is no gain saying that the appellant was in no manner estopped from filing the writ petition.

The matter can be looked at from a different angle. Indisputably, the appellant had been appointed and assigned the duties to teach the students and such duties had in fact been performed by him. Now, even if, it is assumed that the appellant was not the best talent as alleged by the respondents, even then the fact still remains that he has performed the job assigned to him. Then, how and in what manner the respondents have sought on to themselves a compensatory benefit by paying the appellant only Rs. 21,000/- per month instead of Rs. 43,000/- per month is beyond our comprehension. Therefore, even on this score the stand of the respondents cannot be countenanced.

In view of the discussion made herein above, we find merit in this appeal and the same is accordingly allowed. The judgment passed by the learned writ Court is accordingly set aside. Consequently, the respondents are directed to pay to the appellant salary of Rs. 43,000/- per month for the entire period he had worked with the respondents. Normally this would be a fit case where heavy costs should have been imposed on the respondents but we are refraining from doing so firstly because the learned writ Court had decided the case in their favour and secondly the total length of service put in by the appellant does not warrant so. All the pending application(s), if any shall stand disposed of.