Applications under Articles 226 & 227 of Constitution of India v. State of Orissa & Ors.

16/19.06.2000. Said circular was challenged before this Court in OJC No. 5568 of 2000, which is subjudice but the circular was acted upon and implemented. NTPC management persuaded the DAV Management to absorb the teaching staff of the taken over High Schools, which was accepted. NTPC therefore, offered in writing the option to the petitioners to accept the offer of the DAV failing which they would be treated as surplus and would have to be terminated from service. The DAV management offered to pay the total emoluments (Basic Pay + DA) to the teachers on the condition that the same shall not be less than the emoluments received by the petitioners.

It is the further case of NTPC that the teachers cannot be classified as ‘workmen’ in terms of the Industrial Disputes Act. They were offered a package as per circular dated 03.12.2004, which they did not accept. As such, they cannot claim the benefit of superannuating at the age of 60 years. Said circular was accepted by 7 teachers and therefore, there is no question of any discrimination. The petitioners, on their own volition rejected the package offered by NTPC on 03.12.2004. As such, they are estopped to challenge the same before this Court. ADDITIONAL FACTS

In view of the stand taken by NTPC in its counter affidavit the petitioners have put forth the following additional facts in their rejoinder and additional affidavit.

13.1 The tripartite settlement with recognised union cannot prevail over the 1994 Act, which does not provide for classification of employees and particularly of the teaching staff on the basis of their cadre/grade under their former employer. Section 11 of the Act clearly provides that the service conditions of the taken over employees shall not be less favourable to what was available to them prior to the taking over. As such, the offer given by the DAV management for granting only the basic pay and DA cannot, by any stretch of imagination, be treated as favourable to the petitioners who were enjoying various allowances and pension. Moreover, the petitioners were threatened with termination of their services in case of non-acceptance of such offer. The claim of the petitioners also cannot be rejected by treating them as non-workmen in view of the fact that they are members of NTPC Power Workers’ Union and were participating in the elections and were also enjoying several benefits granted to other employees of OSEB/GRIDCO under various settlements entered into by the management with the Unions. NTPC itself has provided a list of employees including the names of the teaching staff to the Labour authorities for the purpose of holding secret ballot for electing the recognized union. The teaching staff have been treated at par with various categories of employees/workmen such as Semi-Skilled-A, Semi-Skilled-B, Skilled-A etc. The offer given by NTPC is highly humiliating and arbitrary. In fact, because of such gross discrimination meted out to the petitioners they are in receipt of salaries and allowances less than that received by even peons and messengers. SUBMISSIONS

Heard Mr. J.K. Rath, learned Senior Counsel along with Mr. B. Mishra, learned counsel for the petitioners and Mr. A.N. Das, learned counsel appearing for the NTPC.

Opening his arguments, Mr. Rath, learned Senior Counsel would submit that the NTPC is guilty of violating not only the provisions of the 1994 Act but also the specific direction of this Court in OJC No.1315 of 1998. Mr. Rath would draw attention of this Court to the provisions of the 1994 Act, particularly to Sections 10 and 11 thereof. Referring to Section 10(1) of the Act, Mr. Rath would submit that every person, who was a regular employee of the power station, shall, on and from the appointed day, be deemed to be on deputation with the State Government on the same terms and conditions as he was employed under the former employer. Sub-Section (2) provides that on the vesting of the Power Station in NTPC under Section 5, NTPC shall absorb the employees of the power station and the absorbed employees shall be governed thereafter by the rules and regulations of NTPC in force from time to time. Mr. Rath further refers to Section 11 of the Act to submit that every employee of TTPS absorbed in NTPC shall hold office or render service under the NTPC on the same terms and conditions and with the same rights and privileges as to pension, gratuity, leave and other matters as were applicable to him immediately before such vesting. It also provides that his conditions of service can be altered by the NTPC only to his advantage.

On such basis, Mr. Rath argues that the petitioners were teachers in schools established by TTPS. Said schools where duly established under the provisions of the Odisha Education Act being recognised by the State Government as also by the Board of Secondary Education as educational institutions. The students of the school were permitted to appear in the Board’s examination and certificates were also issued to the students by the Board. The teachers were appointed by TTPS for the purpose of functioning and running the school. The pay structure of the teachers was also finalized with the approval of the educational authorities and as prescribed by the Board. Thus, as on the date of vesting of the TTPS with NTPC after coming into force of the 1994 Act i.e., on 03.06.1995, the petitioners, who were earlier employees of erstwhile OSEB working under TTPS, became the taken-over employees of NTPC. In view of Section 11, the petitioners are entitled to be given the same terms and conditions, rights and privileges as regards pension, gratuity, leave and other matters as were applicable to them on the date of their vesting.

What the NTPC has done in the instant case is that the petitioners were discriminated as compared to the other employees, inasmuch as they were never given the same service conditions as were applicable to them at the time of taking over. Elaborating his argument, Mr. Rath, would submit that the petitioners were entitled to the revised GRIDCO scale as on 02.06.1995 available to them as per their categorisation into different grades at par with the workmen. The TTPS being taken over with effect from

03.06.1995, the petitioners became full-fledged employees of NTPC and their salary and other entitlements ought to have been fixed on the basis of their pay scale and category as on

02.06.1995. Mr. Rath further argues that instead of offering the same service conditions, NTPC offered fitment on pre- revised GRIDCO Scale of pay and thereafter on the State Government pre-revised and revised scales, which is less than their entitlement. When the same was refused by the petitioners, NTPC offered them DAV scale, which is also less than what they were entitled to lawfully.

Mr. Rath further argues that the teachers including the petitioners were ranked inferior to even peons, messengers and attendants of the said School by giving them much higher pay scales and when such fact was brought to the notice of this Court by the petitioners in the contempt proceeding (OCRMC No. 103 of 2002), NTPC, ostensibly to cover up the same, shunted out such non-teaching staff of the Schools to various offices/departments of NTPC in the administrative side as per order dated 05.11.2004 (Annexure- 11). This, according to Mr. Rath shows the vindictive and step-motherly attitude of NTPC towards the teachers.

Ultimately, acting purportedly representation, NTPC came out with a humiliating offer by asking the petitioners to be redeployed as Stenographers for being given the NTPC scale of pay. Naturally, the petitioners did not accept the offer.

Mr. Rath, also argues that the petitioners may not be workmen in the strict sense of the term but they have been classified as different categories only for the purpose of fitment. Therefore, the stand taken by NTPC that the teachers not being workmen, the NTPC scale cannot be granted to them is untenable. Mr. Rath concludes his arguments by submitting that the petitioners are entitled to the NTPC scale of pay and all other such service conditions as are applicable to the regular employees of NTPC. This also entails that the age of superannuation of the petitioners ought to have been treated as 60 years and their initial fitment ought to have been made on the basis of the revised GRIDCO scale of pay as on 02.06.1995 corresponding to the appropriate category to which they had been classified by their former employer.

Per contra, Mr. A.N. Das would first submit that a memo was filed on behalf of the petitioners on 22.05.2022 abandoning the prayer as at serial No.1. Such prayer being quashment of Annexure-4 is therefore, no longer available to be granted.

On merits, Mr. Das would argue that as many as four offers were given by the NTPC to the petitioners but they did not accept any of the same. By letter dated 09.09.1999, the teachers were offered to be fitted from existing OSEB 1990 Pay Scales to the pre-revised scales for teaching staff under OSRP Rules, 1989 till 31.12.1995 and thereafter, to the OSRP Rules, 1998 w.e.f. 01.01.1996. But the petitioners did not respond. The situation is therefore, governed by the doctrine of sub silentio, for which the petitioners are estopped to question the said order. Notwithstanding the above, NTPC sought to make an arrangement with DAV Management for the benefit of the teachers as it does not have a cadre of teachers. Said offer was also not accepted by the petitioners. As directed by the Court, NTPC framed service conditions for the teachers by order dated 03.12.2004 offering fitment as per GRIDCO revised Pay Scales but same was also not accepted by the petitioners. The representations of the petitioners and other group of teachers was duly considered and in order to arrive at an acceptable arrangement regarding fitment of the teachers in appropriate grades, the letter dated 23/25.05.2005 was issued offering to redeploy them in the post of Stenographer subject to their acquiring the required skill and proficiency. This was also not acceptable to the petitioners. As such, the petitioners are estopped to make any further claim.

As regards the allegation regarding violation of the provisions of the Act, Mr. Das would argue that Section 10 relates to absorption while Section 11 relates to fitment. Fitment is to be made on the same terms and conditions and rights and privileges as applicable on 02.06.1995. From the offers given by NTPC it would be amply clear that it performed its part of the obligation which the petitioners chose not to accept. As on 02.06.1995, the petitioners were getting GRIDCO (OSEB) Scale and that is what NTPC offered as the basis for their further fitment. Teachers not being workmen and there being no cadre of teachers in NTPC, there is no other way of effecting a fitment of the teachers. In fact, 7 out of the 28 teachers accepted the offer, and the others, barring the petitioners, did not raise any further claim. As regards letter dated 23/25.05.2005, Mr. Das would submit that it was an honest attempt by NTPC Management to find out a corresponding grade to fit the teachers in an appropriate scale. As regards the allegation regarding violation of the directions of this Court in the earlier writ application, Mr. Das would argue that the proposed service conditions having been framed by NTPC but not being accepted by the petitioners, no further obligation remains with it.

Before highlighting the issues involved in the case it would be proper to deal with the first contention raised by Mr. A.N. Das, learned counsel for the NTPC that the petitioners in W.P.(C) No. 3217 of 2006 had abandoned their prayer for quashment of Annexure-4 as per memo filed in the Court on 25.02.2020. Mr. J.K. Rath, learned Senior Counsel appearing for the petitioners on the other hand would submit that though such a memo was filed by the previous conducting counsel, yet the same was never acted upon nor any order passed by the Court accepting the same. That apart, the present counsel engaging him has informed that the petitioners did not wish to press the said memo.

This Court finds that a memo was filed on

25.02.2020 indicating that the petitioners do not want to press the prayer to set aside Annexure-4 series since the same was never implemented and was superseded by the revised proposal under Annexure-8. Reference to the order sheet of the case however, reflects that said memo was never taken note of by the Court nor any order passed in that regard and particularly in view of the statement of the learned Senior Counsel being instructed by the counsel for the petitioner, this Court deems it proper to ignore the said memo. ISSUES FOR DETERMINATION

Having regard to the rival contentions, it is evident that the following issues primarily arise for determination in these writ applications: (i) Whether the mandate of Section 11 of the 1994 Act was followed in letter and spirit by the NTPC management? (ii) Whether the order dated 03.12.2024 (Annexure-4) passed and the subsequent offers given by the NTPC were in consonance with the direction of this Court in OJC No. 13155 of 1998 and OCRMC No. 103 of 2002? (iii) Whether the claim of the petitioners of being discriminated in the matter of grant of appropriate pay scale and allowances etc. is valid. (iv) What relief are the petitioners entitled to? ISSUE NO.(i)

This Court has given its anxious consideration to the rival contentions noted above. Simply stated, according to the petitioners, they are entitled to be fully absorbed and treated as regular employees of the NTPC and to all financial and service conditions but have been discriminated by the Management of NTPC in this regard. This, according to the petitioners, violates Section 11 of the 1994 Act. On the other hand, it is the stand of the NTPC that the petitioners being teachers cannot be treated as workmen within the meaning of Industrial Disputes Act and therefore, the terms and conditions on which the workmen were absorbed cannot be extended to them. Moreover, NTPC establishment does not have a cadre of teachers and therefore, the petitioners were offered to be fitted against appropriate pay scales on the basis of what they were receiving immediately prior to the date of acquisition of TTPS by NTPC. Four such offers were given but none was acceptable to them.

In view of such opposing contentions it becomes imperative to first refer to certain background facts at the outset. Admittedly, the petitioners were working as teachers in Schools established by OSEB for the children of the employees of TTPS. There is no dispute that they were regular employees of OSEB/TTPS. By virtue of the 1994 Act, TTPS was taken over by NTPC. In this context, Section 10 of the said Act, being relevant is quoted below. (3) and

Absorption of employees. (1) Every person who has been, immediately before the appointed day, a regular employ employee of the Power Station, shall, on and from the appointed day, be deemed to be on deputation with the State Government on the same terms and conditions, subject to the provisions contained in sub-section (2). (2) On the vesting of the Power Station in the Corporation under section 5, the Corporation shall, save as otherwise provided, absorb the employees of the Board working in the Power Station, in the following manner:- (a) Subject to the provisions of clauses (b) and (c) of this (4), all the sub-section and sub-sections employees on the regular rolls of the Power Station shall be absorbed in the services of the Corporation who may, with a view to achieving better productivity and efficiency, redeploy them in Talcher Super Thermal Power Project or in any other Project or Power Station belonging to them and such employees absorbed in the services of the Corporation shall be governed by the Rules and Regulations of the Corporation in force from time to time.

Thus, on and from the appointed date, all the employees of TTPS were deemed to be on deputation with the State Government and upon vesting of TTPS with NTPC i.e., on 03.06.1995, they were absorbed in the services of NTPC to be governed by its rules and regulations. As regards the terms and conditions of service of such employees, Section 11 is relevant and is quoted below:

11. Terms and conditions of service of employees of Power Station at to be carried to their disadvantage.: (1) Every employee of the Power Station absorbed in the Corporation shall of till his employment under hold office or render service under the Corporation on the same terms and conditions and with the same rights and privileges as to pension, gratuity, leave and other matters, as would have been applicable to him immediately before such vesting, Corporation is duly terminated or until his remuneration and other conditions of service as a package are duly altered by the Corporation to his-advantage. (2) The financial liabilities of the Board in relation to the employees absorbed by the Corporation on account of the matters referred to in sub-section (1) for the services rendered under the Board shall be computed till the date immediately preceding the date of vesting of the Power Station with the Corporation and the amount shall be paid to the Corporation as soon as the employees are absorbed.

[Emphasis added]

A plain reading of sub-section (1) of Section 11 would show that absorption of the employees of TTPS in NTPC shall be on the same terms and conditions and with same rights and privileges as to pension, gratuity, leave and other matters as were applicable to them immediately before such vesting. The language employed in sub-Section (1) would also indicate that the conditions of service cannot be altered to disadvantage of the absorbed employees. It therefore, becomes necessary to know as to what were the service conditions of the absorbed employees immediately prior to the date of vesting i.e. on 02.06.1995. Admittedly, the petitioners were teachers in different Schools run by OSEB. It is pertinent to mention that GRID Corporation of Odisha (GRIDCO) after taking over OSEB, effected a Pay revision for the employees w.e.f. 01.04.1995.

The following table reflects the position in detail. Sl. No. 1 2 3 4 5 Petitioners Qualification Designation Date of Joining Pay Scale revised by GRIDCO w.e.f 01/04/1995 & in which the teachers were drawing salary Dhiramani Manthan Saudamini Swain M.A. B.Ed Asst. Teacher 01/08/1981 4760-9370 Matric ITI Asst. Teacher 21/01/1984 3600-6550 Gobardhan Naik B.A B.Ed Craft Teacher 25/02/1984 3600-6550 Sibamohan Senapathy Lambodhar Pradhan TGT Asst. Teacher 10/04/1976 4760-9370 Matric CT Asst. Teacher 16/11/1977 3600-6550 From a conjoint reading of Sections 10 and 11 of the 1994 Act, it follows that the petitioners (Teachers) were entitled to be fitted to the appropriate scale of NTPC on the basis of the GRIDCO revised pay scale as on 02.06.1995.

Now, what would be appropriate pay scale of NTPC for fitment? In this regard, there appears to have been a bipartite settlement signed by NTPC with one of the Unions, which was subsequently held to be a tripartite settlement on

21.08.1988 to decide the fitment of the absorbed employees. However, the petitioners being teachers were left out from the settlement on the ground that they are not workmen within the meaning of Industrial Disputes Act. As already stated, it has been the consistent stand of NTPC that the petitioners are not workmen and hence cannot be equated with the workmen absorbed in NTPC. It is true that being teachers, the petitioners cannot obviously be treated as workmen within the meaning of Section 2(s) of the Industrial Disputes Act but then, this Court finds from the record that apparently for want of a specific cadre in the erstwhile establishment, the teachers have been treated at par with different categories of workmen. As per the document enclosed to the rejoinder vide Annexure-18, the OSEB in its 304th meeting held on 25.02.1988, granted TBA Scales for its employees, wherein all the employees were broadly categorised as workmen with sub-categories such as Unskilled, Semi- Skilled-B, Semi-Skilled- A, Skilled-C, Skilled-B, Skilled-A, Highly Skilled-B, Highly Skilled-A Supervisory-C and Supervisory-B. They were further classified as Administrative and Technical. Most significantly, the teachers have been included under the sub-classification of Administrative in appropriate grades. For instance, Asst. Teacher is treated as Semi-Skilled-A; Asst. Teacher Matric Trained, Matric Teacher, P.E.T., and Head Pandit (U.P. School) have been treated as Skilled-B; Asst. Teacher Trained, I.A. Asst. Teacher (Arts), Hindi Teacher and Graduate Teacher have been treated as Skilled-A; Sanskrit Teacher is Highly Skilled-B; Asst. Teacher Trained Graduate is Highly Skilled-A Supervisory ‘C’; and Headmaster is Supervisory-B.

It would also be relevant to note that despite not being strictly workmen, the petitioners were members of trade unions and were participating in elections. In fact, on as many as three occasions NTPC itself forwarded a list of the members of the union for the purpose of voting, which includes the names of the petitioners. Having done so, it is not open to the NTPC to reject the claim of the petitioners on the ground that they were not workmen. From what has been narrated hereinabove, it is clear that even though the petitioners cannot be treated as workmen strictly yet, they have been always been treated at par with different categories of workmen obviously for the purpose of fitting them in appropriate pay scales so as to bring about uniformity. This vital aspect has never been considered by NTPC resulting in meting out differential treatment to the teachers which is amplified in the succeeding paragraphs.

In representation dated 14.02.2005, petitioners have enclosed a comparative statement, which is extracted below: REVISED GRIDCO PAY SCALE/ALLOWANCES AS ON 02/06/1995 COMPARATIVE STATEMENT Name S.M. SENPATY L. PRADHAN EMP. No. Qualification 94416 B.A. Bed. 94471 B.A. Bed. C. PRADHAN 95303 Matric N.K. PARIDA 94062 Under Matric Peon Peon 1/6/65 Designation Post Held DOJ Category Time bound advance pay scale after 15 Retd. Age Scale of Pay Basic Pay D.A. Medical Allowance Conveyance Allowance Thermal Allowance Total Asst. Teacher TGT 10/4/76 Asst. Teacher M. CT. 16/11/77 Clerk-B Clerk-B 2/1/76 - Skilled –A Skilled-A - 58 4760-9370 5990 - 63 100 58 4020-7380 5220 - 54 100 58 4020-7380 5760 - 61 100 60 2550-4551 4131 - 44 100 240 6336 240 5614 240 6161 120 4395 As on January- 2005 CATEGORY Time bound advance pay scale after 25 years Scale of Pay OSEB/ GRIDCO High Skilled/Sup.C - NTPC Skilled-B W-7 High Skill-B - W-2 - 4760-9370 4400-7905 6700-11750 4700-9010 Pay DA 7670 4679 6785 4139 11267 5791 7506 3964 Medical Allowance Conveyance Allowance Thermal Allowance Factory Compensatory Allowance Special Pay Generation Incentive Quarterly Incentive Trans. Sub Lunch. Sub LIT Reimb Wash Reimb Total Retd. Age 230 100 240 - - - - - - - - 12,919.00 58 204 100 240 - - - - - - - - 11,468.00 58 Reimbursable Reimbursable - 563 - 386 - 1447.63 1709.38 445 483 80 136 21,922.01 60 206 1020.58 1205.10 245 483 80 136 15,231.68 60

A bare look at the table would show that in case of a clerk and a peon, the total emoluments as on 02.06.1995 were Rs.6161/- and Rs.4395/- respectively, whereas, the total emoluments of teachers (petitioners) were Rs.6,336/- and Rs.5,614/- respectively. The same as on January, 2005 went up to Rs.21,922/- and Rs.15,231/- respectively in case of the clerk and the peon, whereas in so far as the petitioners are concerned, the same went only up to Rs.12,919/- and Rs.11,468/- respectively. There is thus a substantial difference in the emoluments of the teachers as compared to the clerks and peons. Not only that, there is disparity as regards the age of superannuation also inasmuch as while the same is 60 years for the Clerk and the Peon, it is 58 years for the teachers. Significantly, this averment and comparative statement has not been specifically denied or disputed by NTPC in its counter.

It would be more than evident from the above that discrimination is writ large and tell-tale on the face of the record.

As already stated, despite not being workmen in the strict sense of the term, the teachers have been treated at par with workmen and categorised accordingly for the purpose of payment of their salaries and allowances by the erstwhile employer. Had the same been accepted by NTPC, the petitioners would obviously have been fitted against appropriate grades like the workmen and other employees, thereby receiving much higher emoluments than what they were actually given.

All the petitioners having rendered more than 10 years’ service could have been placed in appropriate grades under NTPC structure as was done in case of workmen as per Clause-2.3.2 of the tripartite agreement in the following manner. Sl. No. 01. 02. 03. 04. 05. 06. 07. 08. OSEB Structure Unskilled Semi Skilled-B Semi Skilled-A Skilled-C Skilled-B Skilled-A Highly Skilled-B Highly Skilled-A NTPC Structure W2 W3 W4 W5 W6 W7 W8 W10

Why such decision was not taken in respect of the teachers, has not been satisfactorily explained by the NTPC save and except for taking the consistent stand that they are not workmen, which needless to say, could not have been a valid reason for the gross discrimination meted out to them in the manner narrated before. This Court is therefore, of the considered view that the mandate of Section 11 of 1994 Act was not followed in its letter and spirit in case of the petitioners by the NTPC Management.

NTPC has basically harped upon two pleas, namely, that the petitioners being teachers are not workmen and secondly, it does not have a cadre of teachers in its establishment. The first plea has already been discussed in detail hereinbefore and is rejected as untenable because it is not the case of the petitioners that they were workmen but the fact that they have always been treated at par with the workmen was never considered by the NTPC. As to the plea that NTPC does not have a cadre of teachers, the same is also not worthy of consideration because it is not as if its management was not aware of the existence of the three schools run by the OSEB and the teachers employed therein before agreeing to take over TTPS. That apart, the 1994 Act, which is obviously binding on all concerned, speaks of ‘every employee’ of TTPS, who as per Section 10 of 1994 Act were absorbed. Having acted as per the provisions of Section 10 of the Act in absorbing all the employees of TTPS, it is not open to the NTPC to turn around to complain that it does not have a cadre of teachers. Even accepting the argument for a moment that it does not have a cadre of teachers, the same is immaterial if the fundamental fact that the teachers being regular employees of TTPS were always treated at par with workmen is taken into account. Therefore, irrespective of whether the services of the teachers are placed under DAV Management or directly under the NTPC administration, the mandate of Section 11 of the 1994 Act as discussed in detail earlier can never be ignored.

It would be worthwhile to refer to some judgments relied upon by Mr. Das to justify the stand of the NTPC that is no legal bar in providing different age of superannuation for different employees of the establishment. Mr. Das has cited the judgments of the Supreme Court in Osmania University v. V.S. Muthurangam1, K. Nagaraj v. State of A.P.2, and Union of India v. Lieut E. Iacats3.

A reading of the cited decisions reveals that it is legally permissible to maintain different superannuation for different categories of employees in one establishment. The question involved in the present case is however, entirely different for the reasons indicated below. The employees of TTPS, without distinction as to categories and grades were taken over by NTPC and as per Section 11 were entitled to be granted same benefits as they were receiving prior to such taking over. This Court has already held that the petitioners, though teachers were treated at par with workmen by the former employer. So, if NTPC decided to give the benefit of the enhanced age of superannuation to the