Advertised salary not paid
I joined a Public Sector Company (Central Govt) after advertisement, interview and selected. The Advertisement clearly promised CTC (Cost to company) of 8.5 lakhs per annum. During interview they provided a breakup. The appointment order clearly mentioned all the components payable.
But, after joining, I was paid only 5 lakhs per annum. I represented and the management did not give any proper reply.
The company has violated many acts (Section 418 of IPC, Section 420 of IPC, MRTP act, Contract act, Indian Advertisement act etc.).
I found many cases which have held that advertisement is part of the employment contract and advertised salary can not be denied.
What are the options available to enforce the company to pay the arrears? Which will get me best results : Writ petition or criminal petition or Lok Ayukta or Central Vigilance commission or Serious Frauds Department or any other agency ?
The following cases prove the point.
SUPREME COURT OF INDIA : (2009)4SCC484 Appellants: Buddhist Mission Dental College and Hospital Vs. Respondent: Bhupesh Khurana and Ors.
33. The Commission rightly came to the conclusion that this was a case of total misrepresentation on behalf of the institute which tantamounts to unfair trade practice.
35. As far as the cross objections filed by the respondents are concerned, we are of the opinion that the appellant institute by giving totally misleading and false advertisement clearly misled the respondents that the institute is affiliated by the Magadh University and recognized by the Dental Council of India. The respondents have lost their two valuable academic years which would have tremendous impact on their future career.
The above case proves that issuing misleading and false advertisement is not correct. I was misled by that I would get 8.5 lakhs per annum wheras I was paid only 5 lakhs per annum.
Supreme Court : M.D., T. Nadu Magnesite Ltd. Vs. S. Manickam and Ors. LegalCrystal Citation : legalcrystal.com/842317 Reported in : JT2010(3)SC328
11. The doctrine of promissory estoppels or equitable estoppels is well established in the administrative law of the country. To put it simply, the doctrine represents a principle evolved by equity to avoid injustice. The basis of the doctrine is that where any party has by his word or conduct made to the other party an unequivocal promise or representation by word or conduct, which is intended to create legal relations or effect a legal relationship to arise in the future, knowing as well as intending that the representation, assurance or the promise would be acted upon by the other party to whom it has been made and has in fact been so acted upon by the other party, the promise, assurance or representation should be binding on the party making it and that party should not be permitted to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings, which have taken place or are intended to take place between the parties.
The above case proves that a promise made by word in the advertisement and the appointment order can not be allowed to be violated, which is detrimental to one party.
Calcutta High Court Swapan Kumar Maity vs South Eastern Railways And Ors. on 31 August, 2006 Equivalent citations: 2007 (4) CHN 616
20 : .... As pointed out by the Supreme Court in the case of Madras City Wine Merchants' Association v. State of Tamil Nadu reported in 1994(2) SCC 509, a legitimate expectation may arise-
(a) if there is an express promise given by a public authority; or
(b) Because of the existence of a regular practice, the claimant can reasonably expect to continue; or
(c) Such an expectation must be reasonable.
There was a express promise to pay Rs 8.5 lakhs by advertisement and also confirmed by the appointment order, which has resulted in my legitimate expectation of 8.5 lakhs per annum, which was reduced to 5 lakhs.
IN THE HIGH COURT OF PUNJAB AND HARYANA Civil Writ Petition No. 3608 of 1997 MANU/PH/0945/2001 Decided On: 04.01.2001 Appellants: Kabul Singh vs. Respondent: State of Punjab
12. Therefore, taking into consideration all these factors, I am of the view that the petitioners,who applied in pursuance of the advertisement-annexure P-1 have been regularly selected by a duly constituted selection committee and, therefore, are entitled to be regularised from the dates of their initial appointment instead of 1996 and are entitled to be paid regular scales of pay as prayed for from the respective dates of their initial appointment.
In the above case, some persons were given appointment which was not as per the advertisement and the court has held that all conditions in the advertisement have to be adhered to.
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR MANU/MP/0649/1999 Equivalent Citation: 2000(2)MPJR222, 2000(2)MPLJ116 W.P. No. 1022 of 1998 Decided On: 05.11.1999 Appellants: Ravi Madanlal Paliwal Vs. Respondent: State of M.P. and others
Thereafter, the College issued advertisement in the daily newspaper 'Nav-Bharat' dated 25-6-1989 inviting applications from candidates for filling-up various posts; including the post of Assistant Professor in the department of Physics. As regards the qualification and the salary, the advertisement indicated that - "qualification and salary as per U.G.C. College Code." In pursuance of the advertisement made by the College, petitioner applied for his appointment.
In the above case, some persons were appointed not as per the advertisement and the court held that they have to be given salary as advertised.
IN THE HIGH COURT OF GAUHATI (SHILLONG BENCH) MANU/GH/0151/1997 Equivalent Citation: 1999(2)GLT18 Decided On: 20.11.1997 Appellants: Rajat Kanti Choudhury and Anr. Vs. Respondent: State of Meghalaya and Ors.
Held, Petitioner's appointment was made as per terms of advertisement which was issued by Government of Meghalaya
The above case also holds that the conditions in the advertisement can not be violated.
IN THE HIGH COURT OF PATNA MANU/BH/0221/2006 Equivalent Citation : 2007(1) PLJR159 C.W.J.C. No. 15417 of 2004 Decided On: 26.07.2006 Appellants: Ganesh Singh and Ors. Vs. Respondent: The State of Bihar and Ors.
Held, in letter in requisition sent to Commission as well as in advertisement for recruitment of 1750 posts a single date of eligibility had been prescribed, on which date candidates should not have been above 50 years of age - Further after said examination, second advertisement also spoke of continuity of recruitment process under next advertisement and it was clearly provided therein that candidates, who had already applied under earlier advertisement need not apply fresh - There could not be a better example of recruitment process being same when clear statement was that no fresh application was required, if candidates applied pursuant to earlier advertisement - In fact it was made clear that all previous terms and conditions as per Advertisement shall remain as they were - Once it was held that entire recruitment process was one and same and in 1750 posts were covered by same advertisement then it had to be held that concerned letter had no application to case of Petitioners - Said letter in its own terms was prospective in operation - Writ Petition allowed and authorities directed to appoint Petitioners on higher post in pay scale as prayed for
In the above case also, it was held that the conditions of advertisement can not be violated.
Delhi High Court Mahindra And Mahindra Ltd. And ... vs Union Of India on 1 August, 1980 Equivalent citations: 1983 53 CompCas 337 Delhi, ILR 1980 Delhi 1232
These three petitioners made a representation to the company against the said reduction in their promised remuneration
In the above case also, the court held that the promised salary can not be reduced under any circumstances. Even a government order can not reduce the promised salary.
Supreme Court of India M. Raja vs Ceeri Educational Society Pilani ... on 31 October, 2006. Appeal (civil) 4614 of 2006 PETITIONER: M. Raja RESPONDENT: CEERI Educational Society Pilani & Anr. DATE OF JUDGMENT: 31/10/2006
The appellant had been given the benefit of pay protection. He accepted the same. He had moreover been given also additional benefits. However, the offer of appointment cannot be read so as to extend such benefits in regard to the applicability of the recommendations of the Fifth Central Pay Commission which would come in force in future. The respondents in that sense are right in contending that their being no commitment in that behalf, the question of being bound by the purported commitment did not arise. Revision of pay took place subsequently. It was, therefore, a subsequent development. Rights of the parties are not governed by any statutory provisions. They have to be considered having regard to the terms and conditions contained in the offer of appointment as also the subsequent correspondences of the parties.
The matter which was never contemplated by the parties could not have been the subject matter of contract and, thus, could not have been the basis for making a promise.
The above case has clearly hed that any subsequent DA merger or pay revision (about which both the parties were not having any knowledge on the date of appointment), which are later developments can not be cited for denying the salary on the date of joining.
Calcutta High Court Tarun Dutta vs State Of West Bengal And Ors. on 30 November, 2004 Equivalent citations: (2005) 3 CALLT 143 HC
52. Another tricky point has been taken by the respondents regarding maintainability of this writ because of the ground of delay. This aspect of delay in filing a writ petition is no longer res-integra.
53. It is now settled that if the action is a continuous cause of action and if the petitioner can explain the delay, the writ cannot be said to be not maintainable on the ground of delay.
The above case proves that if it is continuous cause of action the delay in can be condoned. The person in the case took up the matter after 12 years and the court considered it. In my case, I have been continuously representing from the day of my joining and my request can not be rejected on account of delay.
16. Monopolies and Restrictive Trade Practices Commission Director-General Of ... vs Sahara India Saving And ... on 6 September, 1989 Equivalent citations: 1990 68 CompCas 153 NULL Bench: G Luthra, H Gupta
The Supreme Court in Lakhanpal National Ltd. v. MRTPC  66 Comp Cas 519 as well as while dealing with the interpretation of the definition of unfair trade practice as given in Section 36A of the Monopolies andRestrictive Trade Practices Act made the following observations (page 524 of 66 Comp Cas) : ''Does it lead a reasonable person in the position of a buyer to a wrong conclusion ?..... It is, therefore, necessary to examine whether the representation complained of contains an element of misleading the buyer. Does a reasonable man on reading the advertisement form a belief different from what the truth is ?" (emphasis supplied)
The above case makes it clear that the misleading advertisement and the false promises in the appointment order were made only to mislead me into believing that I would be getting a higher salary.
Supreme Court of India: M.D., T. Nadu Magnesite Ltd. Vs. S. Manickam and Ors. JT2010(3)SC328
11. The doctrine of promissory estoppel or equitable estoppel is well established in the administrative law of the country. To put it simply, the doctrine represents a principle evolved by equity to avoid injustice. The basis of the doctrine is that where any party has by his word or conduct made to the other party an unequivocal promise or representation by word or conduct, which is intended to create legal relations or effect a legal relationship to arise in the future, knowing as well as intending that the representation, assurance or the promise would be acted upon by the other party to whom it has been made and has in fact been so acted upon by the other party, the promise, assurance or representation should be binding on the party making it and that party should not be permitted to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings, which have taken place or are intended to take place between the parties.
This case proves that once a promise has been made (in the appointment order), it should not be allowed to gone back on.
Supreme Court of India Official Liquidator Vs. Dayanand and Ors. LegalCrystal Citation : legalcrystal.com/676237: (2009)IIILLJ305SC; 2008(13)SCALE558; (2008)10SCC1;
In short, a person can be said to have a 'legitimate expectation' of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above 'fairness in action' but far below 'promissory estoppel'. It may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial.
The above case proves that before dashing the hope of a person, an opportunity has be given, which was not done in my case.
20. Karnataka High Court WP 32357/2013 S R Krishna Vs State of Karnataka and others
3.Heard the learned counsel for both the parties. The selection has been made pursuant to issuance of the notification treating the petitioner as permanent employee of the fourth respondent. Hence for all purpose, he is entitled for salary and benefits payable to the permanent employees. Unless he is heard, no adverse orders could be passed..... Direction is issued to respondent 2,3 and 4 to extend all consequential and monetary benefits to the petitioner with interest at 6 % p.a. from the appointed date. The delay in approaching this court is condoned in the interest of justice.
The above case makes it clear that the notification can not be violated. I should have been given a hearing before reducing my salary, which was not done.
Gauhati HC : Mrs. Subrata Borah Chowlek Wife of Chowken Gohain and Mrs. Anima Gogoi Wife of Deepti Kumar Gogoi Vs. The Indian Oil Corporation Ltd., represented by the Chairman and Ors. LegalCrystal Citation : legalcrystal.com/136473 Decided On : Apr-29-2009
19. .... If the respondent-Corporation had acted contrary to the promises made out in the advertisement and the selection, the Court is entitled to find out the reasons thereof.
23. .... the respondents acted contrary to such promises and extracted the services of the petitioners in exploitative terms.
32. In Union of India v. Wing Commander T. Parthasarathi reported in (2001) 1 SCC 158 it was observed by the Apex Court that a substantive legal right cannot be denied to a person merely on some policy decision of the Government or any certificate issued by him acknowledging a particular position which has no legal sanctity. In the instant case, the respondent-Corporation could not place on record any such policy decision warranting appointment of the petitioners contrary to the promises made out to them.
36.....The respondents with their eyes wide open made out the promises to the petitioners for regular appointment and conducted the selection on that basis. At no point of time, they were intimated that their appointment shall be on less than 45 days basis and that they would also not be entitled to service benefits as promised in the advertisement.
The above judgement makes it very clear that the promises made in the advertisement can not be gone back on.
Section 418 in The Indian Penal Code, 1860
418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.-- Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound either by law, or by legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.