Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO.4439 OF 2012 An application under Articles 226 & 227 of the Constitution of India. The Management of Rengali Hydro Electric Project, Rengali : Petitioner -Versus- The Presiding Officer, Industrial Tribunal, Bhubaneswar & Anr. : Opposite Parties For Petitioner : Mr.D.Pr.Nanda, Sr. Adv. instructed by Mr. B.P.Panda, Advocate For O.Ps. (For O.P.No.2) : Mr.R.Acharya, Adv. J U D G M E N T CORAM : JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO Date of Hearing: 18.04.2023 Date of Judgment :18.05.2023 Per Biswanath Rath,J This writ petition involves a challenge to the award dated 1st October, 2011 passed by the Industrial Tribunal, Bhubaneswar vide I.D. Case No.1 of 2009.
Facts
2. Factual background of the case is that 27 workmen working as <riggers= represented by 2nd party-Union being disputant workmen working in Rengali Hydro Electric Circle, a power sector of Rengali Dam Project, raised an industrial dispute on the premise that the sector Page 1 of 11 // 2 // was under the control of the Irrigation and Power Department of Government of Orissa. On merger of their employer establishment with the Orissa Hydro Power Corporation Limited in the year 1995, the workmen by virtue of Orissa Electricity Reforms Act, 1995, through their Union raised a demand for re-fixation of pay scale of the riggers of Rengali Dam Project from 1974 onwards. The pleadings disclose that for the 2nd Party-workmen request to apply the award in I.D. Case No.20 of 1998 to them remaining unheard the representative Union moved this Court in W.P.(C).No.4805 of 2007 and this Court disposing of W.P.(C).No.4805 of 2007 directed the Labour Authority for taking a lawful decision on the request of the Union. The competent authority, on consideration of the demand of the Union, by letter dated 12th January 2009 made the following reference to the Industrial Tribunal for adjudication : <Whether the demand on entitlement of scale of pay @Rs.300-410/- w.e.f. 1.1.74, Rs.840-1240/- w.e.f. 1.1.85, Rs.975-1660/- w.e.f. 1.5.89, Rs.3200-4900/- w.e.f. 1.1.96, Rs.3600-6205/- w.e.f. 1.4.97 in respect of 27 nos. of Riggers( Annex-F) working in RHEP OHPC Ltd., Rengali is legal and/ or justified? If so, what relief the 27 nos. of Riggers are entitled to?.= 3. Pursuant to receipt of notice issued by the learned Tribunal in the I.D. Case No.1 of 2009, the 1st party Management challenged the reference on various grounds, one of the allegation being that the workmen belonging to Union not being party to earlier I.D. Case No.20 of 1988 cannot be permitted to claim implementation of the award passed in some other dispute. The Management also objected the proceeding on the ground that since the date of absorption of the Page 2 of 11 // 3 // disputant workmen in the Corporation, they have been getting their pay and perks prescribed by the Corporation from time to time and it is urged once the workmen have accepted they pay as admissible to them in a Corporation, they are estopped from claiming pay scale, meant for Govt. employees. It is further submitted that in the event the claim of disputant workmen is allowed, it would amount to enjoyment of double benefit. The Management further objected the reference contending that the pay scales of disputant workmen being considered in terms of bipartite settlement dated 20.12.2003, which resulted in resolution of all such disputes and submitted that in the above premises, the workmen are also estopped from claiming otherwise. 4. Each side before the learned Industrial Tribunal appears to have adduced oral as well as documentary evidence with introduction of document also marked as Ext. 1 to 17 from the side of 2nd party Union and Ext. A to G on behalf of 1st party Management. It is considering the rival contentions of the Management as well as Workmen and taking into consideration the provisions in the Rule-6 (8) (a) of the Scheme of Merger, the Tribunal come to observe as follows: <Accordingly, it is held that the disputant workmen are entitled to be placed in the same pay scale as the State Government has fixed from time to time starting from 1.1.74 till 31.3.97 for the post of Riggers working in the Irrigation Sector of Rengali Dam Project. Their demand for re-fixation of pay scale with effect from 1.4.97 is held to be Page 3 of 11 // 4 // to get the differential wages computed unjust and thus not permissible. The disputant workmen are in entitled accordance with the observations made above. The First Party to implement the Award within a period of two months of the date of its publication in the Official Gazette.= Challenging the impugned award, Mr.Nanda, learned Senior 5.
Legal Reasoning
eye of law. In the result, this Court interferes with the impugned ward at Annexure-11 and sets aside the same. 11.
Arguments
Counsel appearing on behalf of the Management, draws attention of this Court to a notification of the Department of Energy, i.e., Orissa Electricity Reform (Transfer of Undertakings, Assets, Liabilities, Proceedings and Personnel) Scheme Rules, 1996. Taking this court through the condition of Transfer of personnel vide Rule-6, Mr.Nanda, learned Senior Counsel for the petitioner contended that the provision being clear to the extent that the personnel who are subject to transfer are prevented from asserting or claiming any benefit of service under the State Government or the Board. Again, taking this Court through the provision in Orissa Electricity Reform Act,1995, a contention is advanced that for the provision contained in Section 24 of the Act, 1995, transfer of the personnel under the scheme shall be on terms and conditions that may be determined in accordance with transfer scheme. It is in view of the Rule-6 being specific as indicated hereinabove. Learned Senior Counsel for the petitioner contended that the Tribunal failed in appreciating the legal provisions obstructing the claim of the 2nd party Workmen and arrived at a wrong and illegal award, which unless is interfered and set aside shall cause miscarriage of justice. Page 4 of 11 // 5 // 6. Per contra, Mr.Acharya, learned counsel appearing for the workmen even though did not dispute the merger of establishment under which the opp.party-workmen are working with the Rengali Hydro Electric Project by virtue of a merger scheme referred to above and the Reform Act, 1995, took this Court through Rule-3 as well as Rule-7 & 8 of the Rules, 1996 and attempted to justify the award impugned herein. 7. In course of hearing, on realizing that the <reference against the 1st Party Management is somewhat misdirected and that such a reference should have been made as against the State, Mr.Acharya, learned counsel also made a request to this Court to at least providing opportunity to the 2nd Party workmen to seek a reference against the State Government on the cause of action involved herein. 8. Considering the rival contentions of the parties and as this Court finds Rule-6 of the Rule, 1996 and Section 24 of the Orissa Electricity Reform Act,1995 being relevant for the purpose, both the provisions are reproduced herein : 6. Transfer of Personnel. - (1) All personnel of the Board who are either in the employment of the Board or deputed to and have been working for the Board on the effective date, shall be subject to transfer as provided in these rules without any further act or thing to be done by the Board the State Government or the personnel as the case may be. (2) Upon such transfer the personnel who are subject to the transfer, shall not assert or claim any as the case may be, Page 5 of 11 // 6 // benefit of service under the State Government or the Board except as provided in these rules. (3) The State Government shall classify the personnel into different groups on so far as practicable having regard to the Classification of the undertakings residuary assets and residuary liabilities: Provided that the classification of personnel shall not be called into question on the ground that it is not consistent with the classification of the Undertakings and residuary asserts and residuary liabilities. (4) Upon transfer the personnel shall form a part of the services of OHPC or Gridco, as the case may be in the post, scale of pay and seniority in accordance with Schedules C and D : Provided that the placement of the personnel in the post, scale of pay, seniority shall be subject to orders that may be passed by the Courts or Tribunal in the proceedings pending on the effective date. (5) On the effective that the personnel of the Board shall stand transferred to OHPC or Gridco, as may be designated in accordance with the classification made by the State Government under Sub-rules (3) and (4) and the provisions of Schedule D. (6) All personnel of the State Government working under the Board on deputation or assignment shall stand reverted to the services of the State Government on the effective date. (7) All personnel who revert to the services of the State Government under Sub-rule (6) and other employees of the State Government assigned for the electricity generation, transmission, distribution and supply related work as provided in Schedule "C" shall stand deputed to the services of OHPC or the Gridco. on the effective date : Provided that they shall continue to retain their lien in the posts held by them under the State Government till permanent absorption in the Transferees. Page 6 of 11 // 7 // (8) (a) The transfer of personnel shall be subject to the condition that the terms and conditions of the services applicable to them on the effective date shall not in any way be less favourable to them than those applicable to them immediately before such date and all benefits of their respective services rendered before the effective date shall be recognised and taken into account while fixing the condition of services under the Transferee, except as otherwise provided under these rules. (b) Subject to Sub-clause (a), the OHPC or Gridco, as the case may be, shall frame regulation governing the conditions of services of personnel so transferred under Sub-rules (5) and (7). to the personnel of (9) (a) Subject to these rules, the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962 (hereinafter called "CCA Rules") framed by the State Government and as modified from time to time and applicable the Board or State Government as the case may be, immediately before the effective date, shall mutatis mutandis be applicable to the such personnel transferred to the services of OHPC or Gridco. as the case may be until such time OHPC or Gridco. frame its own rule on the subject and the personnel so transferred shall be under the disciplinary control of OHPC or Gridco. as the case may be: Provided that in the matter of application of CCA Rules to the personnel under the service of OHPC or Gridco. any interpretation and/or the Department of Energy, State Government, shall be final and binding : clarifications issued by All proceedings Provided further that until permanent absorption of the personnel of the State Government the Service rules applicable to them as Government Employees shall continue to apply. (b) disciplinary proceedings pending against the personnel prior to the effective date or the proceedings to be instituted against the personnel lapses or other acts of commission or commission committed before the effective date, shall not lapse and shall be decided as the case may be after following the procedure, laid down in the CCA Rules as applicable under Sub-rule 9(a). for misconduct, including Page 7 of 11 // 8 // (10) (a) Except as specifically provided otherwise herein in respect of all statutory and other schemes and employment related matters including the provident fund, gratuity fund, superannuation fund or any other special fund created or existing for the benefit of the personnel on the effective date, the Transferee of the relevant personnel shall stand substituted for all purposes whatsoever and all the rights, the State powers and obligations of Government, as the case may be, in relation to any and all such matters shall become those of the transferee. the Board or in the respective (b) All accumulations funds including the provident fund, gratuity and superannuation including all interests and other accruals of the respective personnel to be transferred to OHPC or Gridco. on the effective date shall be transferred to the corresponding funds to be established or formed by the OHPC or Gridco. as the case may be. retirement benefits including provident (c) All obligations in respect of payment of pension and other fund, superannuation and gratuity to the employees who have retired from the services of the Board before the effective date shall be discharged by Gridco. until such obligations are appropriately assigned to OHPC and Gridco. and OHPC shall reimburse Gridco. for the expenditure incurred by Gridco. relating to such obligation assigned to OHPC, (d) The personnel of the State Government transferred to OHPC or Gridco. ("the Transferee") who are eligible for pensionary and other superannuation benefits as would be applicable or admissible to them if they had continued in the service under the State Government, shall be entitled to receive the entire benefits from the Transferee in the following manner unless otherwise specifically provided by the State Government - (i) The services rendered by them under the State Government up to the date of permanent absorption shall be taken into account for the purpose of grant of the pensionary and other retirement benefits together with the service to be rendered by them under the relevant Transferee after the said date. (ii) The pensionary and other benefits will be sanctioned and paid by the relevant tranferee. Page 8 of 11 // 9 // (iii) The respective liability in regard to the above shall be apportioned between the State Government and the transferee based on the length of service rendered by the personnel in each of the two organisations. (iv) The State Government shall transfer from time to time the funds to OHPC or Gridco as the case may be, representing the State Government in regard to the obligations mentioned under Sub-rule (iii). the share of liability of the (e) The period of the service of the personnel under the Board or Government, as the case may be, and under the Transferee shall be treated as continuous for the purpose of all service benefits. (f) The personnel transferred to the service of OHPC or Gridco under these rules shall be deemed to have entered into an agreement with OHPC or Gridco or the respective nominated authority, as the case may be, to repay the loans, advance and other sums due or otherwise perform the obligations undertaken by him to the Board or the State Government which remain outstanding against him on the effective date, as per the original terms and conditions. (11) Notwithstanding anything contained in these rules all personnel of the Central Government working under the Board or assigned the electricity generation, transmission, distribution and supply related work of the Board shall stand reverted to their respective department in the Central Government.= for Section 24 of the Orissa Electricity Reform Act,1955: (1) The State government may by a transfer scheme provide for the transfer of the personnel to GRIDCO and OHPC, on the vesting of the properties, rights and liabilities in the GRIDCO or OHPC under Section 23. (2) Upon such transfer under the transfer scheme the personnel shall hold office or service under GRIDCO or OHPC, as the case may be, on terms and conditions that may be determined in accordance with the transfer scheme. Provided that such terms and conditions on the transfer shall not in any way be less favourable than Page 9 of 11 // 10 // (3) those which would have been applicable to them if there had been no such vesting. in Notwithstanding anything contained the Industrial Disputes Act, 1947 or any other law as is applicable, and except for the provisions made in this Act, the transfer of the employment of the personnel referred to in sub-section (1) shall not entitle such employees to any compensation or damages under this Act or any other Central or Stage law or under the general law, save as provided in the transfer scheme.= Reading both the provisions as taken note of, hereinabove, this Court finds Section 24 of the Act, 1995 makes it clear that person on transfer under such Transfer Scheme shall hold Office of new Company or Corporation , as the case may be, on terms and conditions that may be determined in accordance with the Transfer Scheme. 9. Now coming to the Rule-6 of the Transfer Scheme, 1996, this Court finds upon transfer of the personnel, such personnel shall not assert any claim in benefit of service under the State Government or Board except as provided in these rules. It is in the above circumstance, this Court finds there is force in the submission of Mr.Acharya, learned counsel that a reference on the other hand should have been made against the State rather than reference against the 1st Party Management hereinabove. However, since this Court finds the present writ petition under Article 227 of the Constitution of India, it is observed this Court has no authority to grant relief as prayed for by Mr. Acharya. It may Page 10 of 11 // 11 // simply be observed parties are to undertake any such exercise, if so advised. 10. Now coming to the merits of the present case, this Court finds sufficient force in the submission of Mr.Nanda, learned Senior Counsel through the legal provisions taken note hereinabove. Considering the provisions at Rule-6 of the Rule, 1996 and Section 24 of the Orissa Electricity Act, this Court finds the Industrial Tribunal did not interpret them correctly. As a consequence, this Court finds the award contrary to the legal provisions taken note hereinabove and thus not sustainable in the
Decision
The writ petition succeeds but however in the circumstance of the case, there shall be no order as to cost. (Biswanath Rath) Judge M.S.Sahoo,J. I agree. (M.S.Sahoo) Judge Orissa High Court, Cuttack. The 18th day of May, 2023/sks SUSIL KUMAR SWAIN Digitally signed by SUSIL KUMAR SWAIN Date: 2023.05.18 16:15:51 +05'30' Page 11 of 11