U.B. Singh And Ors. vs National Thermal Power ...
2013 Latest Caselaw 2228 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 3821/1995
%                                                            May 14, 2013

U.B. SINGH AND ORS.                                         ......Petitioners
                            Through:      Ms. Kaadambari, Advocate with Ms. Avsi
                                          Malik, Advocate and Ms. Jyoti Ojha,
                                          Advocate.
                            VERSUS


NATIONAL THERMAL POWER CORPORATION & ANR. ...... Respondents

Through: Mr. Vaibhav Kalra, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.5895/2013 (restoration)

There is no opposition to the application and the same is accordingly

allowed. Writ petition is restored to its original number.

C.M. stands disposed of.

+ W.P.(C) No.3821/1995

1. This writ petition is filed by four petitioners. The four petitioners are

employees of the respondent No.1/National Thermal Power Corporation. In the

writ petition, the following prayers are made:-

"(i) Issue writ in the nature of Mandamus commanding upon respondents No.1 and 2 to show cause why the petitioner be not directed to give the same treatment as has been given to the similarly placed employees of Badarpur and Singrauli Power plants of the respondent No.1 viz National Thermal Power Corporation.

(ii) Issue of writ of certiorari calling upon respondents No.1 and 2 to transmit the records of the case and supply the same to this Hon‟ble Court so that considerable justice can be done.

(iii) Direct the respondents to give the petitioner‟s appropriate pay scale of `350-500/- with retrospective effect from 19.1.80 along with arrears of pay and other consequential benefits as has been done in case of 136 employees of Badarpur Division in 83 and 26 employees of Singrauli Division in 91.

(iv) Issue Rule Nisi in terms of prayers at paras 1 to 3 above and to award costs of this petition.

(v) To pass such further and any other orders as this Hon‟ble Court may deem just and proper in the matter."

2. So as to crystallize the arguments which were to be urged on behalf of

the petitioners, I ask the counsel for the petitioners that de hors the prayer clauses

what would be the heads of arguments of the petitioners, and counsel for the

petitioners has urged the following heads of arguments:-

(i) Petitioners are entitled to application of doctrine of „equal pay for

equal work‟ i.e petitioners are muster roll employees and were already working as

Analysts and therefore after they were appointed as Junior Analysts they should

not get the pay of a Junior Analyst but should get the higher pay of an Analyst at

which post they were working prior to their appointments as Junior Analyst.

(ii) There would be discrimination between the same group W3 to which

petitioners belong with other employees falling in the group W3 i.e if other persons

who fall in W3 category are given a higher pay scale or earlier promotion, or

benefit of a higher pay from a retrospective date, petitioners should also get the

same benefits. Within this broad head of argument, there is argument with respect

to entitlement of the petitioners to retrospective higher pay scale because others in

group W3 have got the same.

(iii) Petitioners are entitled to the benefit of the office order dated

27.8.1979 which had fixed the pay scale of a Junior Analyst at Rs.225-308/- and

which became Rs. 350-500/- at least w.e.f 1.1.1979. Since the petitioners were

appointed after 1.1.1979 in terms of appointment letters dated 18.1.1980,

petitioners should be granted the pay scale of Rs. 350-500/-.

3. The last argument and the first argument will be dealt with by me

together inasmuch as the benefit to be drawn in terms of the argument is the claim

of the pay scale of Rs.350-500/- instead of the pay scale of Rs.330-460/- which

was granted to the petitioners on their appointments. Of course, it cannot be

disputed that the Junior Analyst in terms of the order of the respondent No.1 dated

27.8.1979 were having a pay scale of Rs.225-308/- and which became Rs.350-

500/- from 1.1.1979, and therefore on a first blush, it appeared that petitioners

should not be discriminated against by denying them the pay scale of Rs.350-500/-

instead of the scale granted of Rs.330-460/- and which they got in terms of their

appointment letters. On a closer examination, however, the arguments which are

urged are not only fallacious but gross abuse of process of law. This is because the

fact of the matter is that NTPC had many employees who were either regular

employees or work charged employees or muster roll employees. Work was going

on in the Badarpur Thermal Power Station and after completion of the same, issues

arose with respect to services of the muster roll and work-charged employees on

the pay roll of Badarpur Thermal Power Station and Badarpur Thermal Power

Project and thus were at the disposal of the present respondents. The position

which had arisen was that there was already excess employment with NTPC. The

issue was also of whether muster roll employees and work charged employees

could continue with their appointments after Badarpur Thermal Power Project had

come to an end. There were many disputes and strikes and the disputes between

the workers and the management were consequently referred for conciliation.

There were detailed negotiations before the Conciliation Officer, and consequently

a memorandum of agreement was signed between the Management of

NTPC/respondent No.1 and Badarpur Thermal Power Employees Union on

27.5.1978. This agreement is a detailed agreement which shows that there were

various issues which arose on NTPC taking over employees of Badarpur Thermal

Power Station and Badarpur Thermal Power Project inasmuch as with respect to

notifications or the fact that muster roll and work charged employees can or cannot

be regularized, if they have to be regularized then against which posts and which

scale of pay and so on and so forth. Obviously considerable amount of bargaining

would have taken place on either side before the agreement dated 27.5.1978 was

entered into. The most important aspect which is to be noted is that in terms of

Article IV (3)(c) it was provided that regular posts that would remain vacant after

operation of clauses (a) and (b) which pertain to promotion from lower grade to

higher grade of regular employees of NTPC, the vacant posts will be suitably

downgraded and non-regular employees will be considered against these posts for

regularization. With respect to muster roll employees such as the petitioners, they

were to be taken at a step below the work charged employees i.e on the posts

which were available after operation of earlier paras of the agreement because they

remained unfilled, the same were to be filled in by employment thereto of muster

roll employees. In order to better appreciate this entire aspect, it is necessary to

reproduce paras of Article IV and which read as under:-

"Article IV PRINCIPLES OF APPOINTMENT OF MUSTER ROLL WORKERS ON WORK CHARGED BASIS.

1. Both parties to the Agreement appreciated that with the completion of the construction activities of the 4th Unit of the Project, there are a large number of surplus personnel in certain categories even amongst the employees who are already regular and work-charged. In spite of this and the fact that employees recruited on muster roll and work-charged basis are normally discharged from service on completion of the construction

activities after payment of terminal benefits due under the laws, the Union appreciated the management‟s gesture in making a firm commitment to all workmen to the effect that there will be no retrenchment of any employee. Notwithstanding the surplus situation as above, have identified certain areas where vacancies of long term nature are immediately available, in an act to absorb as many muster roll workers as possible. Vacancies presently available, vacancies to occur an of the 4th Unit and restoration of gene in the 1st Unit and vacancies in NTPC new projects which regular work- charged and muster roll workers of and BTEP could be considered are given in Annexures I and III respectively. Both parties agreeing that muster roll workers will be appointed to work charged posts based on the vacancy shown in the said Annexures on the basis of the principles and procedures laid down herein.

3. The regular and work charged posts in the workmen category at Badarpur shall be filled on the basis of the following principles and order of preference:

(a) By promotion of eligible regular employees of the same category from the next lower grade subject to NTPC‟s promotion policy and procedures.

(b) Subjects to suitability in terms of qualifications, skills, experience and other factors as may be prescribed, work charged employees of the same or higher grades will be considered for regular vacancies which cannot be filled on the basis of (a) above.

c) Regular posts that remain vacant after operation of (a) and (b) above will be suitably down-graded and work-charged employees will be considered against these posts by following the same principles as laid down in (b) above.

d) The regular posts that still remain unfilled after operation of (a),(b) and

(c) above will be converted to work-charged in the lowest grade for the concerned category and these work-charged posts will be filled by selection of muster roll employees of any category subject to suitability in terms of qualifications, skill, experience and aptitude as per Company policy and procedures.

e) Only where, in the judgment of the Management, regular posts of workmen at Badarpur cannot be filled out of internal candidates from amongst regular, work-charged and muster roll employees, by following the principles as above, rest will be made to recruitment of candidate from outside.

f) In addition to the above, wherever vacancies of a purely temporary nature arise in the workmen categories at Badarpur, work-charged posts will be created for a specified duration and suitable muster roll workers will be given first preference for appointment to such work-charged posts.

g) The vacancy position will be reviewed on the basis of requirements once every six months and whenever new vacancies occur, they will filled on the basis of the above principles.

h) No resultant vacancies arising out of promotion or absorption of any regular or work-charged employees from a category which is surplus would be filled up.

i) Subject to the terms and principles laid down in the Agreement, Management will make all possible efforts to absorb the muster roll workers of BTPS & BTPP as on the pay roll on 1.4.1978 on work-charged basis and as Trainees by September 1979.

And it is hereby clarified that the muster roll workers selected as Trainees will be paid the same rates of daily wage as applicable to them immediately prior to their selection as Trainees.

j) Meanwhile, Management will take immediate action to appoint an impartial national body like National Productivity Council to carry out an in-depth study of the manpower requirements in BTPS& BTPP. The BTPPEU agree to extend full cooperation and support to the said body in carrying out the manpower study as above. The report along with the recommendations regarding manpower based on the said study will be made available before September, 1979. Both the parties agree to abide by the findings of the said body in this regard and the cases of muster roll workers who are not absorbed by September 1979 will be dealt with for appointment as work-charged after training or otherwise on the basis of the said recommendations."

4. Therefore, it is quite clear that muster roll employees such as the

petitioners; and petitioners admittedly were muster roll employees before their

formal appointments with the respondent No.1; were not to be treated as normal

appointments to the posts to which they were to be appointed i.e either as work

charged employees or to a regular post with the respondent No.1. The respondent

No.1 was in terms of the agreement completely justified in downgrading the scale

of pay in terms of the agreement entered into between the Union and the

respondents because the regular pay scale was for regularly employed employees

and not for casual labours such as the petitioners. It is only for this reason that

when the petitioners were appointed in terms of their appointment letters dated

18.1.1980 whereby they were specifically given a lower pay scale of Rs.330-460/-.

Obviously, it was for the benefit of the petitioners to accept the employment albeit

at a lower pay scale because otherwise they would have been left without any

employment. On the one hand was the issue of unemployment and on the other

hand was the benefit of employment to be taken with the respondent No.1 on a

lower pay scale. Petitioners obviously opted for the latter and therefore they were

given appointment as Junior Analysts but not on the scale of pay of Rs.350-500/-

as payable to the regularly appointed Junior Analysts of the respondent No.1 but at

a pay scale of Rs.330-460/-. Therefore, in my opinion, in the present case there

does not arise the question of applicability of the doctrine of „equal pay for equal

work‟ because the doctrine of „equal pay for equal work‟ arises under the normal

circumstances of regular appointment to posts of an employer and when issues of

qualifications, scope of duties, hierarchy of promotion etc etc are seen for

application of doctrine of „equal pay for equal work‟. In the present case, as

already stated above, petitioners having taken the benefit of the employment letters

dated 18.1.1980 in the absence of which they would have been otherwise

unemployed, these persons cannot claim equality with regularly appointed Junior

Analysts who were having a pay scale of Rs.350-500/- in the respondent No.1.

Therefore, I reject the argument urged on behalf of the petitioners

based on the doctrine of „equal pay for equal work‟.

5. The related argument for claiming of the pay scale of Rs.350-500/- as

payable to Junior Analysts was based on the office order of the respondent No.1

dated 27.8.1979. No doubt, this office order requires that a Junior Analyst must

have a pay scale unrevised of Rs.225-308/- (revised Rs.350-500/-) however the

office order dated 27.8.1979 deals with normal appointments of Junior Analysts

pursuant to that office order, whereas as already stated above, appointments of the

petitioners were pursuant to the settlement before the Conciliation Officer and the

petitioners therefore specifically took the appointments in terms of their

appointment letters dated 18.1.1980 which gave them the specific lower pay scale

of Rs.330-460/-. Petitioners therefore in my opinion are also not entitled to benefit

of the pay scale of Rs.350-500/- by placing reliance on the office order dated

27.8.1979 of the respondent No.1.

6. Another argument which was raised on behalf of petitioners was that

since other persons such as one Mr. Ram Dayal and another Sh. Shiv Nath Ram

and so on were on their promotions given retrospective benefit of the scale of pay

of Rs.350-500/-, thus the petitioners should not be discriminated against and they

should also be given a higher pay scale of Rs.350-500/- because petitioners also

fall under the same group W3 as the other employees Sh. Ram Dayal and Sh. Shiv

Nath Ram.

7. Once again, in my opinion, the argument urged on behalf of the

petitioners is misconceived. No doubt, Sh. Ram Dayal and Sh. Shiv Nath Ram fall

in W3 category, however, it is shown that original appointment of these persons

were quite clearly different than the petitioners who were only muster roll

employees. Whereas Sh. Ram Dayal Singh was a Rigger on the work charged

establishment i.e a step higher than muster roll employee such as the petitioners;

Sh. Shiv Nath Ram was appointed as a Senior Attendant (sub station). As already

stated that regular terms of employment and regular terms of ordinary

consideration of a particular scale of pay did not apply to various employees which

the respondent No.1 took in pursuant to the memorandum of settlement dated

27.5.1978. Once persons although in the normal appointment of respondent No.1

fell under one category of W3, yet it cannot mean that unequals should be treated

as equals because appointments of petitioners do not fall in the realm of

ordinary/normal/regular appointees. Petitioners are unequals with other employees

taken in by the respondent No.1 because muster roll employees were a step below

the work charged employees like the work charged employees were a step below

the regular employees of Badarpur Thermal Power Project. Also what was the

promotion policy pursuant to which Sh. Ram Dayal and Sh. Shiv Nath Ram have

been given promotions and consequently retrospective higher pay scale is not

before this Court for analytically analyzing complete identity of the petitioners

with said Sh. Ram Dayal and Sh. Shiv Nath Ram and therefore it is not possible for

this Court to arrive at definite findings of complete identity in all respects of the

petitioners with Sh. Ram Dayal Singh and Sh. Shiv Nath Ram. Complete identity

on facts being a sine qua non, one cannot proceed ahead by assuming automatic

identity of petitioners with Sh. Ram Dayal Singh and Sh. Shiv Nath Ram, merely

because all of them fall in the W3 category because even W3 category persons

were placed differently by virtue of the settlement before the Conciliation Officer.

8. I must finally mention that petitioners by means of this writ petition in

the year 1995 are seeking to re-open the finality which has been achieved and

benefits taken of appointments in the year 1980 i.e of over 15 years back. In fact,

the representations were given to the Grievance Committee of the respondent

which rejected the same on this very basis that after 15 years there cannot be

reopening of the pay scales especially because the petitioners have taken the

benefits of employment. The said order of competent authority reads as under:-

" NTPC-BADARPUR DIVN.

     No.BTPS:04:95/181                        Dt. 9.6.95
     To
              S/Shri Udai Bhan Singh (54308)/
              Kishan Lal (54304)/
              B.K.K. Sharma (54306)/
              T.K. Bose (54307)
              W.T.P. BTPS.

This has reference to your identical submissions before the Grievance Committee, Stage-III. After giving you opportunity to substantiate your submissions through personal appearance before the Committee, and also on examining the records pertaining to the matter, Committee has arrived at the conclusion that your appointment in Jan. 1980 in the regular cadre/post in your discipline was consequent to the selection process and offer of appointment in our appropriate scale/post, which had been accepted by you. As such, it may not be possible to review the scale after a lapse of 15 years.

Sd/-

(T.V. Rao) Chairman, Grievance Committee Stage-III (Sr. Supdt. B.M.D.)"

9. Merely because the order is passed in the year 1995 does not mean

that this petition can be filed thereafter because there is no record before this Court

that any representation was made with respondent No.1 from 1980 till about 1995

or so leading to the indubitable conclusion that there is unexplained silence of the

petitioners for about 15 years.

10. The conclusion of the above is that petitioners were only muster

roll employees with the Badarpur Thermal Power Station or Badarpur Thermal

Power Project. On completion of Badarpur Thermal Power Project and

Badarpur Thermal Power Station, ordinarily workers on muster roll or work

charged employees would not have been able to continue in service. The

Badarpur Thermal Power Station and Project was to be transferred to the

respondent No.1. Disputes arose, strikes took place, negotiations were held and

ultimately an agreed memorandum was signed between the Workers‟ Union

representing the petitioners and the respondent No.1. Pursuant to this

memorandum, petitioners took benefit of employment subject to a lesser pay

scale in terms of their appointment letters dated 18.1.1980. Different employees

naturally have to be treated differently inasmuch as muster roll employees were

not work charged employees, and petitioners were at the lowest range of muster

roll employees. Detailed modalities for different employees were therefore

provided in memorandum between the Workers‟ Union and the respondent

No.1, and some of the paras of which I have already reproduced above. In spite

of taking benefit of terms of the settlement, yet, the petitioners for no reason

want to let the litigation continue to simmer. This is unacceptable in law.

11. In view of the above, the petition not only being wholly devoid of

merits, but being also abuse of process of law, also barred by delay and laches,

is accordingly dismissed with costs of `30,000/-.

MAY 14, 2013                                        VALMIKI J. MEHTA, J.
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