SWP/2497/2016 of SATISH KUMAR Vs FOOD CORP.OF INDIA AND ORS. on 30 December 2017

HIGH COURT OF JAMMU AND KASHMIRAT JAMMU

SWP No. 2497/2016

MP No. 4/2016, 2/2016,3/2016,1/2016 & 2/2017

Date of Order: 30.12.2017.

Satish Kumar Vs. Food Corporation of India & Ors

Coram:

Hon’ble Mr Justice M. K. Hanjura, Judge.

Appearance:

For the Petitioner(s): Mr.Sunil Sethi, Sr.Advocate with Ms. Veenu Gupta , Advocate For the Respondent(s): Ms. Monika Kohli, Advocate.

i) Whether approved for reporting in Yes/No Law Journals etc.: ii) Whether approved for publication in Press: Yes/No Yes/No 1/. The petitioner in this petition has contended that he was appointed as a computer operator on contractual basis in the Food Corporation of India in the year 2003 and his services are being utilized by the respondents continuously since the date of his appointment. The petitioner has also stated that he has been discharging his duties diligently and efficiently and it has been more than 13 years now that he has been working in the office of the Food Corporation of India. It is further submitted that the Assistant General manager, Food Corporation of India, Jammu vide his letter No. AGM (F&A) Misc. dated 12.01.2007 has appreciated the work of the petitioner and he has also certified that the petitioner has good knowledge of computer working, both in Unix system as well as Windows XP and he found the services of the petitioner to be very satisfactory. It is submitted that during the last 13 years, it was at no point of time that the services of the petitioner were ever utilized by the respondents as a part time worker, whereas, the fact remains that the services of the petitioner were being utilized on contractual basis in the Food Corporation of India. It is submitted that the petitioner is also a tax payee and tax is being deducted by the Food Corporation of India, Jammu, since financial year 2010-11. It is submitted that the salary of the petitioner is much less than that of a regular employee. The petitioner is being paid an amount of Rs. 11,276/- per month while as, the persons who are working on permanent basis are getting an approximate amount of Rs. 35,000 to Rs. 40,000/- per month, which by itself amounts to discrimination and is against the provisions of the law. It is submitted that the adherence to the rule of equality in public employment is a basic feature of our constitution and since the rule of law is the core of our constitution, the petitioner cannot be discriminated. The petitioner does not receive his salary in accordance with the principal of equal pay for equal work and equal pay for everyone is deducible from the preamble and Articles 14, 16 and 39 (d) of the Constitution of India. No irrational classification can be done between two sets of employees (engaged on temporary and regular basis) performing identical duties and responsibilities. The petitioner moved a representation to the respondents on 19.10.2016 for the redressal of his grievances but the respondents did not pay any heed to it. On 07.11.2016 the petitioner sent a reminder to the respondent No. 3 and 4 but instead of considering the representation of the petitioner, the respondents threatened the petitioner that they will terminate him from the service.

2/. In their reply the respondents have controverted the petition of the petitioner, primarily, on the grounds that the writ petition depicts misuse of precious judicial resources of the nation, as the petition is based on concocted statements, blatant and gross misinformation, no arguments at all, and fake documents, and as such, is liable to be dismissed on the first hearing itself. The petitioner has made a false statement that he was appointed as Computer Operator in the year 2003 by the answering respondent/corporation whereas he has failed to produce the appointment letter, if any, in this regard although the burden to produce the same lied on his shoulders.

Conclusion

3/. It is further pleaded that the spot quotations for awarding typing work were obtained from the market as per Rule 145 and 146 of GFR i.e. General Finance Rules. The work was awarded to the lowest quotation received i.e. to the firm of the petitioner, namely Satish Kumar Typing-cum-Computer Institute. The typing work was awarded to the aforesaid firm and not to the petitioner as a person. Not only this, even the bill for work done was also submitted by the aforesaid firm on its letter head with has been signed by the petitioner being proprietor of the firm.

4/. It is further averred that the fact remains that the documents of the work were awarded to the aforesaid firm and not to the person (petitioner) which is further corroborated by the dictum that the respondents/corporation deducted the tax from the bills of the firm @ 1 % and 2 % as provided under Section 194 (C) of Income Tax Rules, which is applicable to the firms only and not to a person. It is further submitted that in the case of a persons the tax on earning is deducted at a minimum rate of 10%, whereas in the case of firms the tax is deducted @ 1% or 2%, only this rate of tax and is on par with the payments being made to many other firms providing services to the respondents/corporations, like transporters, labour contractors, private Godown owners, etc.

05/. It is further contended that the payments were made to the firm of the petitioner only on the basis of the work done and not as a component of the salary to be paid to an employee of the respondents/corporation. This is clear from the monthly bills submitted by the firm/units every month, wherein the details of the work done are given in the form of the total number of pages typed where after the payment is made on the basis of the rate approved per page. It is pertinent to mention here that the firm has also mentioned its address as 359, Digiana, Jammu on, its letter head while submitting the monthly bills for the work done. Copies of the bills and the payment receipts are attached and are collectively marked as Annexure “A”. 06/. It is further stated that the respondents/corporation is hiring the services of various firms, like transport contractors, private Godown owners etc at small scale on quotation basis. Not only this, the respondents/corporation is also utilizing the services of travel agencies etc and is also purchasing the products for its use from the stationery shops, the lamination shops etc on quotation basis. On the analogy of the contrived arguments projected by the petitioner in the writ petition, the respondents/corporation has to absorb all those persons associated with the aforesaid firms as regular employees which is not acceptable. Similar observations has also been made by the Apex Court in case titled “State of Karnataka Vs. Uma Devi” which is reproduced herein below:- "As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in Public Sector Undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened, so the court ought not to impose a financial burden on the State by such direction, as such direction may turn counter productive."

07/. Had the petitioner been a contractual employee, there would have been a proper contract signed by the both the parties i.e. the petitioner and the respondents/corporation, which is not so in the case on hand.

08/. Heard and considered.

09/. To canvas her arguments that the petitioner has a right of regularization to the post of the Computer Assistant, the learned counsel for the petitioner has relied on the law laid down in the cases of "Union of India & Ors Vs. Harish Chander" reported in 2010 V. (4) JKJ 34 "Hari Nandan Prasad and Anr V. Employer I/R, Management of FCI & Anr" reported in 2014 AIR (SC) 1848. "R.K. Panda Vs. Steel Authority of India" reported in 1994 (5) SCC 304. "Air India Statutory Corporation Vs. United Labour Union & Ors" decided by the Supreme Court of India on 06.11.1994 in Civil appeal numbers 15536 -37, 15532- 15534 of 1996 (arising out of SLP No. 7418-19/92 and 12353-55/95 as also on others. She has urged that the judicial dictums cited above support her view that the petitioner has a right to be regularized against the post which he has been holding in contractual capacity.

10/. The petitioner has not placed on record any order or agreement from the perusal of which this court could come to the conclusion that he was appointed as a computer operator on contractual basis in the year 2003 in the respondents corporation and that he has been discharging his duties as such to date. The petitioner has based his case on the edifice of the letter bearing No. AGM (F&A) JK/mis dated 12.1.2007 issued by Assistant Manager Food Corporation of India, whereby the officer has appreciated his work and has certified that he has good technical knowledge of computer working, both in UNIX system as well as Windows XP and that his services are satisfactory. This letter which forms the part of the file has been issued on 12.01.2007. Subsequently, the Assistant General Manager (F&A) of the Food Corporation of India addressed a communication bearing No. Miscellaneous 32(1) / ACCTC/15-16 dated 06.12.2016 to the officer for confirming the veracity of the certificate allegedly issued by him. The letter stated that neither any such certificate is seen to have been issued by the corporation from the record available in the office nor does the certificate bear any running dispatch number through which it can be verified. it also stated that AGM (FA) had no authority/DOP to issue any such certificate as per the provisions of the rules of the Food Corporation of India staff Regulation Act 1971 even if it was based on the facts. The officer in reply to the letter confirmed and asserted that he has not issued the certificate as referred to in the letter. This reply of the officer erodes the credibility of the letter under the wharf and woof of which the petitioner has tried to carve out a case in his favour.

11/. Be that as it may, what is reiterated here is that petitioner has not been able to persuade this Court that he was appointed as a computer operator on contractual basis on the strength of any order or authority except for the letter aforesaid which on enquiry has been reported to be incorrect by its maker who has denied its execution. The respondents have placed a copy of the affidavit on record which is attached to the petition as Annexure “C” wherein he has deposed in unequivocal terms that he is extending his services to the FCI on account of typing work and other related work as per the quotation and the scheduled rates fixed by FCI. The petitioner has also stated in the affidavit that he is working purely as an outsourced person and will not claim any employment on this assignment. This affidavit constitutes legal evidence and does not support the contention propounded by the petitioner in his pleadings.

12/. Annexure “A” attached to the petition bears testimony to the fact that the petitioner has raised bills for various periods in his capacity as a computer typist. The bill dated 02.4.2012 is for an amount of Rs. 12992, the bill dated 02.05.2011 amounts to Rs. 10758/- the bill dated 1.02.2012 is for an amount of Rs. 12996, the bill dated 2.01.2012 is for an amount of Rs.12894, the bill dated 1.12.2011 is for an amount of Rs. 11998/-, the bill dated 2.5.2011 is for an amount of Rs.10758/-, the bill dated 1.11.2012 is for an amount of Rs. 13410/-, and the bill dated 1.11.2011 is for an amount of Rs. 11958/-, so on and so forth. These bills have been submitted by the petitioner in the capacity of a proprietorship firm and not as a contractual employee as contended by him and to crown it all the submission of the bills by the petitioner to the FCI constitutes sufficient proof to lay down that he was not working as a contractual employee as in that event the corporation would have as a matter of course released his wages/salary every month without the submission of the bills by him which are ordinarily raised to clear a liability.

13/. Annexure “C” attached to the petition depicts that income tax @ 1 % and 2% calculated at Rs. 1397/- has been deducted from an amount of Rs. 11,7070/-paid/credited to the petitioner by the respondents Corporation on the dates 26.04.2010, 1.05.2010, 18.05.2010, 2.6.2010, 03.06.2010, 02.07.2010, 10.08.2010, 13.08.2010, 03.09.2010, 04.10.2010, 23.10.2010, 03.11.2010, 03.12.2010, 03.1.2011, 04.02.2011, 03.03.2011. It is in the shape of form No. 16-A i.e. a certificate of deduction of Tax at Source under section 203 of the Income Tax Act, 1961 for interest on securities, dividends, interest other than, interest on securities, winning from lottery or crossword puzzle; winning from horse race, payments to contractors and sub-contractors, insurance commission payments to non-resident sportsmen/sports association; payments in respect of deposits under National savings scheme, payment on account of repurchase of units by mutual Fund or Unit Trust of India, commission, remuneration or price on sale of lottery tickets, rent, fees for professional or technical services, income in respect of units, other sums under section 195, income of foreign companies referred to in section 196A (2) : income from units referred to in section 196B; income from foreign currency honds or shares of an Indian company referred to in section 196C and income of foreign institutional investors from securities referred to in section 196D. This rate of tax is applicable to the firms and not to the employees where for the payment of the tax the minimum prescribed rate is 10%.

14/. Annexure “B” attached to the petition of the petitioner is an agreement between ABN personnel work and Food Corporation of India Limited for providing all types of contractual man power, making the ABN personnel responsible for payment of their consolidated wages to be reimbursed by the Food Corporation of India as per aggregate rates. In terms of the agreement aforesaid, ABN, Jammu addressed a communication to the General Manger Food Corporation of India Jammu, on the subject “outsourcing of computer typist for the office of RO Jammu” sponsoring Satish Kumar i.e. petitioner as a computer typist at a gross CTC/Month (excluding agency charges) of Rs. 13517 and the date of his joining is shown to be the 1[st] day of May 2014. This communication knocks the bottom out of the argument of the petitioner that he was appointed as a computer operator on contractual basis with the respondents corporation. The petitioner has not knocked at the doors of the court with clean hands. He has misrepresented the facts. He has given an incorrect account of events.

15/. In view of the preceding analysis, the petitioner has failed to show that he had any title to the post and he be allowed to continue to hold the post to be regularized. He has also failed to show that although he was irregularly appointed by the department without inviting applications from the eligible candidates in furtherance of the advertisement, yet he has a right to be regularized. One of the tests laid down for regularizing the appointments made irregularly as laid down in Uma Devi’s case is that the person should be holding the post continuously for a period of 10 years as otherwise for making appointments to public posts issuance of advertisement inviting applications from the eligible candidates is a condition precedent and the petitioner has failed to establish that he was holding the post on contractual basis since the year 2003. Therefore, the petition of the petitioner is devoid of any merit. It entails dismissal, as a corollary to which the same is dismissed.

SRINAGAR 30.12.2017. Showkat.

(M.K.Hanjura)

Judge.