Saudamini Swain and another … v. State of Orissa and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.11200 of 2005 & W.P.(C) No. 3217 of 2006 Applications under Articles 226 & 227 of Constitution of India. AFR W.P.(C) No. 11200 of 2005 Saudamini Swain and another …… Petitioners --------------- - Versus - State of Orissa and others ...…. Opp. Parties W.P.(C) No.3217 of 2006 Sibamohan Senapaty & another …… Petitioners - Versus - The General Manager, National Thermal Power Corporation Ltd. & another ...…. Opp. Parties Advocate(s) appeared in these cases:- ______________________________________________________________ For Petitioner(s) : Mr. J.K. Rath, Senior Advocate with M/s. Basudev Mishra, B.L. Tripathy & Mr. G. Sahu, Advocates. [In both the writ petitions] For Opp. Parties: M/s. A.N. Das, A.N. Pattnaik, E.A. Das, & N. Sarkar, Advocates. [For NTPC in both the writ petitions] ____________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA Page 1 of 59 JUDGMENT 21st February, 2025 SASHIKANTA MISHRA, J. Both these writ applications involve common facts and law and were therefore, heard together and are being disposed of by this common judgment. However, for brevity, the facts pleaded in W.P.(C) No. 3217 of 2006 are considered. INTRODUCTORY FACTS 2. The erstwhile Odisha State Electricity Board (OSEB) owned a power station in Talcher, presently in the district of Angul, called Talcher Thermal Power Station (TTPS). Since TTPS, for various reasons could not operate at the optimum level resulting in loss in generation of electricity and as neither the OSEB nor the State Government were in a position to provide additional funds necessary to achieve optimum production, the State legislature enacted the Talcher Thermal Power Station (Acquisition and Transfer) Act, 1994 (in short ‘1994 Act”) for taking over the power station by National Thermal Power Corporation (NTPC), a wholly owned Government of India undertaking. Said Act came into force w.e.f. 18.05.1995 being published in the Page 2 of 59 Odisha Gazette. As per the provisions of the 1994 Act, the right, title and interest of the OSEB in relation to TTPS was vested in the State Government. Thereafter, the State Government vested the power station with NTPC free from all encumbrances as per Section 5 of the 1994 Act w.e.f. 03.06.1995. The modalities of transfer of the employees of OSEB (TTPS) to the Corporation, security of their tenure, protection of their status etc. were governed by different provisions of the 1994 Act, particularly Sections, 10, 11 & 13 thereof. As such, about 1500 employees of the erstwhile OSEB working in TTPS were taken over by NTPC pursuant to the 1994 Act. They became the regular employees of the NTPC without any break. 3. OSEB also owned and ran three schools being Talcher Thermal High School, Talcher Thermal Model Primary School and Talcher Thermal Sector-IV Primary School. All the three Schools were also transferred to NTPC by virtue of the 1994 Act with effect from 03.06.1995. By letter dated 03.07.1995, the Chief Personnel Manager, NTPC Page 3 of 59 issued a letter to the Headmasters of the three schools indicating the transfer of said schools to NTPC. CASE OF THE PETITIONERS 4. The petitioners in W.P.(C) No.11200 of 2005 were working as Asst. Teachers in Talcher Thermal High School. The two petitioners in W.P.(C) No.3217 of 2006 were working as Trained Graduate Teacher and Matric CT Teacher respectively in Talcher Thermal High School. Though strictly not workmen yet they were treated at par with different categories of workmen by the management of OSEB such as, Highly Skilled, Supervisory and Skilled-B etc. Their services were also taken over by NTPC as per the 1994 Act. 5. By an office order dated 02.09.1998, the age of retirement of the employees of NTPC was enhanced to 60 years. The retirement age of the employees of the power station was 58 years. But in view of the aforementioned office order, they were also eligible to work till 60 years. 6. The petitioners believe that they were treated unequally as compared to the other taken over employees and the direct employees of NTPC in the matter of wages, Page 4 of 59 allowances and other service conditions. They voiced such discontent before the management claiming equal treatment. However, NTPC entered into a bipartite understanding with one of the six trade unions operating in the power station on 20.08.1998, which ultimately became a tripartite settlement under the Industrial Disputes Act. Subsequent to such settlement, an office order was issued on 20/22.08.1998 calling upon the taken over employees to give their option for coming over to the NTPC Pay Scale. The petitioners being Teachers were excluded from the said order. Clause-2.8 of the said order provided that revised pay structure and allowance of GRIDCO as notified by Notification dated 21.04.1998 shall be extended to all teaching staff w.e.f. 03.06.1995. 7. Feeling aggrieved, the present petitioners and some other teachers approached this Court in OJC No.13155 of 1998. Said writ petition was disposed of on 05.03.1999 by directing NTPC to frame separate rules and regulations for the teaching staff of the Schools taken over by it as per the Page 5 of 59 1994 Act. A division Bench of this Court, inter alia, issued the following directions: “In view of the aforesaid position we direct that necessary rules and regulations be framed by NTPC keeping in view of the prescription in Section-11 of the 1994 Act as accepted in the Counter Affidavit filed by it. Such action be taken within three months from today.” 8. The above direction was not complied with by NTPC for which a contempt application was filed (OCRMC No.95 of 2000), which was disposed of granting eight weeks’ time to the NTPC for compliance. Again another contempt petition was filed (OCRMC No.103 of 2002). At this stage, NTPC filed an additional affidavit in the contempt proceeding on 06.12.2004 enclosing an office order dated 03.12.2004 regarding proposed rules and regulations of the teaching staff absorbed as employees of NTPC pursuant to the 1994 Act. Said office order dated 03.12.2004 is enclosed as Annexure-4 to the writ application. 9. In view of such development, the contempt proceeding was dropped inter alia, with the following observations: “Orl.Crl.Misc.Case No.103 OF 2002 Xxxx Xxxx xxxxx xxxx xxxx xxxx Page 6 of 59 5. The petitioners, if aggrieved by the fixation of scales of pay and other conditions, are entitled to challenge or agitate in a separate proceeding or may move the Management for the purpose, but the same cannot be considered in the present contempt application. However, we feel that the points urged on behalf of the petitioners need proper consideration by the Management. the same 6. In that view of the matter, we are of the considered opinion that there is no wilful or deliberate violation of this Court’s order, as alleged. However, while dropping the contempt proceeding we observe that in the event the petitioners raise their grievance with regard to fixation and parity of their scale of pay by way of a representation, the Management should consider the same in its proper perspective. Sd/-P.K.Hohanty, J Sd/-J.P.Mishra, J. [Emphasis added] 10. According to the petitioners, the office order dated 03.12.2004 is not in conformity with the direction issued by the Division Bench in the earlier writ application and is nothing but an eyewash inasmuch as, if the same is given effect to, it would amount to granting less favourable benefits than what the petitioners were receiving or were entitled to receive as on 03.06.1995. By letter dated 14/15.01.2005, the Chief Manager (HR) intimated the Headmaster of Talcher Thermal High School that the petitioners will be paid salary through DAV CMC management and will be under Page 7 of 59 administrative control of DAV management. The petitioners, unable to accept such offer, submitted a joint representation to the Management on 14.02.2005 along with a tabular statement showing their conditions of service, followed by a reminder on 02.03.2005. 11. In response, the General Manager of NTPC, vide letter dated 29/30.03.2005, (copy enclosed as Annexure-7) informed that the revised conditions of service of the teaching staff framed on 03.12.2004 is being re-examined. Ultimately, by letter dated 25/23.05.2005 (copy enclosed as Annexure- 8), the General Manager of NTPC, inter alia, informed that there is no cadre of teachers in NTPC and therefore, in order to give an opportunity to the teachers to be redeployed in NTPC pay and benefit structure, they were required to exercise option for being deployed in the post of Stenographer subject to acquiring typing and shorthand speed as applicable to Stenographers of NTPC and qualifying in the test to be conducted for the same. Significantly, said communication contained no reference to the representation dated 14.02.2005. The petitioners, instead of accepting the Page 8 of 59 offer, submitted another representation on 08.08.2005 to the management to reconsider the representation dated 14.02.2005 and not to give effect to Annexure-8. However, no action whatsoever was taken by the management. The petitioners contend that the conduct of NTPC is contrary to their own undertaking given before this Court in the earlier writ application as also the observations of this Court. Furthermore, they have been made inferior to even Class-IV employees of the School in the matter of pay scales. As such, the petitioners in both the cases have preferred these writ applications with the following common prayers: (i) To quash the office order dated 03.12.2004 (Annexure-4) and letter dated 25/23.05.2005 (Annexure-8); (ii) To direct NTPC to absorb the petitioners as employees of NTPC w.e.f. 03.06.1995 and apply the service conditions of NTPC to them; and (iii) To fit the petitioners in NTPC pay scale basing on the GRIDCO revised scale of pay as on 02.06.1995. Page 9 of 59 Thus, the case of the petitioners, in a nutshell, is that in view of the express provision under Section 11 of the 1994 Act they are entitled to be treated as full-fledged employees of the NTPC and granted all financial and service benefits applicable to its regular employees. CASE OF NTPC 12. The stand taken by NTPC, as can be culled out from the preliminary counter affidavit and counter affidavit filed in both these cases is that NTPC does not have any system of running Schools departmentally in any of its projects across the country though as per its policy, it provides for all infrastructure like building, playground, laboratory etc. The Schools are actually run by reputed educational institutions. This policy is adopted by NTPC in all of its projects across the country including taken over projects like UNCHHAR and TANDA in U.P. where the Schools have been handed over to DAV Educational Society. As per Section 11(1) of 1994 Act and the bipartite settlement with recognized unions, the service conditions of all workmen, excluding teachers were changed over to those in NTPC as a package to their Page 10 of 59 advantage. As regards the teaching staff, the same was to be taken up separately but the petitioners and others approached this Court in OJC No. 13155 of 1998 apprehending discrimination and unfair treatment. Pursuant to direction of this Court in order dated 05.03.1999, NTPC framed the terms and conditions of the service of the teachers on 09.09.1999 which was duly served upon all teachers including the petitioners. 13. In order to improve the quality of education in the Schools, the management decided to run the said Schools under the management of DAV CMC vide circular issued on
Facts
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 Page 11 of 59 emoluments (Basic Pay + DA) to the teachers on the condition that the same shall not be less than the emoluments received by the petitioners. 14. 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 15. 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 Page 12 of 59 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 Page 13 of 59 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 16.
Legal Reasoning
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? Page 23 of 59 ISSUE NO.(i) 29. 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. 30. In view of such opposing contentions it becomes imperative to first refer to certain background facts at the Page 24 of 59 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 10. 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. (b) Officers in the rank of Executive Engineer and above, whatever designation they hold, shall be retained by the Board for deployment in other activities of the Board of the State Government. (c) Officers in the rank of Assistant Engineer, whatever designation they hold shall be kept on deputation with the Corporation, and their absorption in the Corporation or repatriation to the Board or the State Government shall be regulated in the following manner:- (i) twenty-five percentum of them shall be absorbed, in order of their suitability as may be determined by the Page 25 of 59 in the Board or under Corporation, during the first year of vesting of the Power Station in the Corporation; (ii) twenty-five percentum of them shall be repatriated to the Board during the first year of such vesting for the State redeployment Government Departments; (iii) further twenty-five percentum of them shall be in order of their suitability as may be absorbed determined by the Corporation, during the second and third years of such vesting (that is 15% in second year and 10% in the third year); (iv) the remaining twenty-five percentum of the officers shall be repatriated to the Board during the second and third years of such vesting for redeployment in the Board or under the State Government Departments. (3) All Stipendiary Engineers in employment in the Power Station immediately before the appointed day, shall be retained by the Board. (4) Notwithstanding anything in the preceding sub- sections, employees appointed, if any, in the Power Station after the 11th October 1994 shall be retained by the Board. [Emphasis added] 31. 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 Page 26 of 59 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, the 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] 32. 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 Page 27 of 59 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. 33. 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. 34. 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. Page 28 of 59 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 Page 29 of 59 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. 35. 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 Page 30 of 59 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. 36. In the representation dated 14.02.2005, the 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 years 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 Page 31 of 59 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 37. 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 the 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 Page 32 of 59 averment and comparative statement has not been specifically denied or disputed by NTPC in its counter. 38. It would be more than evident from the above that discrimination is writ large and tell-tale on the face of the record. 39. 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. 40. 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. Page 33 of 59 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 41. 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. 42. 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 Page 34 of 59 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. Page 35 of 59 43. It would be worthwhile to refer to some judgments relied upon by Mr. Das to justify the stand of the NTPC that there 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. 44. A reading of the cited decisions reveals that it is legally permissible to maintain different age of 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
Arguments
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. 17. 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 Page 14 of 59 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. 18. 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 Page 15 of 59 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. 19. 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 Page 16 of 59 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. 20. 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 Page 17 of 59 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. 21. Ultimately, acting purportedly on their 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. 22. 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 Page 18 of 59 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. 23. 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. 24. 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 Page 19 of 59 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. 25. 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 Page 20 of 59 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. 26. Before highlighting the issues involved in the case it would be proper to deal with the first contention raised by Page 21 of 59 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. 27. 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 Page 22 of 59 the petitioner, this Court deems it proper to ignore the said memo. ISSUES FOR DETERMINATION 28. 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