Orissa High Court
Lingaraj Bhukta vs General Manager on 9 March, 2022
A.F.R
ORISSA HIGH COURT : C U T T A C K
O.J.C. No.7427 of 2000
An application under Articles 226 & 227 of
the Constitution of India, 1950
Lingaraj Bhukta : Petitioner
-Versus-
General Manager, NTPC & Ors. : Opposite Parties
For Petitioner : M/s. S.K. Mishra,
P.K. Mishra,
D.P. Nanda,
P.K. Mohapatra
For Opposite Party Nos.1, 2 & 3 : M/s. A.N. Das,
A.N. Pattnaik,
N. Sarkar,
R.K. Mohapatra
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
Date of hearing: 22.02.2022 :: Date of Judgment : 09.03.2022
1. In filing the writ petition the Petitioner in the guise of
imposition of illegal and arbitrary terms and conditions of service against
him by the employer, further also claiming such action to be in clear
contravention with the provision of Talcher Thermal Power Station
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(Acquisition and Transfer) Act, 1994 hereinafter in short be reflected as
"the Act, 1994", has sought for the following relief:
" PRAYER
In the circumstances, Your humble petitioner
most fervently prays that this writ petition may kindly
be admitted/accepted for hearing and after notice to the
opp.parties and after hearing the parties before the
Hon'ble Court the writ petition may be allowed and the
impugned superannuation order dt.1.3.2000 as at
Annexure-10 and the relieve order as at Annexure-11
may be quashed.
And the opp.parties be directed to allow the
petitioner to work till 60 years of age as applicable to his
co-workmen in the same establishment.
And any other and further order(s) that the
circumstances of the case, may kindly be passed."
2. Brief fact involving the case appears to be; the Petitioner
initially was appointed as driver on 20.02.1964 on trial basis in the scale
of pay of Rs.80-3-110-EB-116-4-120 in the Plant Stores, Transport and
Workshop Division, Chainpal in the Talcher Thermal Station an unit
under the control of the Govt. of Odisha. Subsequently, by order dated
8.02.1965 he was appointed as driver under the work-charged
establishment. The Talcher Thermal Power Station (hereinafter in short
be reflected as "T.T.P.S") establishment owned and managed by the State
of Odisha was initially known as Talcher Thermal Station, but however,
is renamed as Talcher Thermal Power Station "T.T.P.S." in the year 1970
and transferred to the O.S.E.B. It is pursuant to such transfer, services of
the Petitioner alongwith other work-charged staff of the whole division
were transferred to the O.S.E.B as appearing at Annexure-1. Since the
O.S.E.B could not be able to run the establishment for the financial and
technical constraints, there were extremely less generation of electricity
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and thereafter, in the process of reorganization of the Division the
Government of Odisha brought Orissa Act 7 of 1995. The the Act, 1994
was notified on 17.05.1995 vide Annexure-3 and came into force w.e.f.
3.06.1995 by the notification dated 1.06.1995 as appearing at Annexure-
4. On 1st June, 1995 by an act of the Government the T.T.P.S. was further
vested in the N.T.P.C. Ltd. w.e.f. 3.06.1995 vide Annexure-5.
It is, in the above circumstance and for the provision in the Act,
1994, the employees of the O.S.E.B. working in the Establishment of the
T.T.P.S became the employees of the N.T.P.C. Ltd. Petitioner claimed
that despite such transfer and merger of rights, service condition of the
employees including that of Petitioner were not altered. On the contrary
through Section 10(2) (a) and Section 11(1) of the Act, 1994, there is
benefits being enjoyed by the Petitioner and other persons like that of the
Petitioner while remaining to continue till such person is duly terminated,
but however with a rider to continue until his remuneration and other
conditions of service as a package is duly altered by the Corporation to
such persons' advantage. Petitioner here claimed that for the Rule
following 24.5 of the N.T.P.C service Rules, age of retirement of the
employees of the N.T.P.C was 58 years, while the matter stood thus,
following a memo dated 19.05.1998 of the Department of Public
Enterprises the age of retirement of the employees below Board level was
raised from 58 years to 60 years; which was also confirmed by the
N.T.P.C. Circular No.382/98 dated 29.05.1995 also being circulated
through News Flash in June, 1998 as appearing at Annexure-6. Petitioner
here claims that while the matter stood thus, the Asst. Labour
Commissioner, Angul vide letter dated 10.08.1998 circulated among all
the Unions a comparable statement of the benefits enjoyed by the
employees of the erstwhile T.T.P.S and proposed benefits to be extended
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by the N.T.P.C vide Annexure-7. It is claimed that the Management on
20.09.1998 entered into a settlement with N.T.P.C. Men's Congress,
Talcher Thermal the recognized Union in Form-K i.e. under the Orissa
Industrial Disputes Rule, 1959 in the involvement of the conciliation of
the Officer-cum-Asst. Labour Commissioner. It is claimed that as per the
terms of the said settlement, the same was kept secret and on the other
hand while issuing Annexure-9 a correspondence dated 21/22.08.1998 the
Management intimated very important changes in many important service
conditions of the employees came from T.T.P.S. The Petitioner claimed
that Annexure-9 is an outcome of the settlement at Annexure-8 and
through paragraph no.10 the Petitioner describes the changes made. In
reference to the condition at clause 2.13 therein the Petitioner while
admitting that he had less than 10 years of service left for retirement on
3.06.1995, on the other hand contended that in the event of Petitioner's
acceptance of offer under clause 2.13, the Petitioner would have lost more
than Rs.2,000/- per month and would have been landed in great financial
loss. Petitioner thus contended that by using the condition at clause 2.3
there has been an attempt by the employer to act contrary to the
protection granted to the Petitioner and such employees U/s.11(1) of the
Act, 1994.
3. It is, in the above background of the matter and on reiteration of the
above facts Mr. Mishra, learned counsel for the Petitioner keeping in
view the prayer involved in the writ petition contended that once there is
protection of the benefits on introduction of benefits to the advantage of
the Petitioner, the settlement should not have contained the restricted
clause like clause 2.13. Mr. Mishra, learned counsel for Petitioner also
contended that once the N.T.P.C Rule 24.5 prescribed age of
superannuation of the N.T.P.C. employees being at 60 years of age and
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since such a benefit was to the advantage of the persons like that of the
Petitioner came over from the T.T.P.S, such benefit would have
automatically fallen to the credit of the Petitioner. Mr. Mishra, learned
counsel for Petitioner claimed that in view of the clear protection on
benefits the Management as well as the Union involved in the tripartite
settlement had no business to attempt to restrict the conditions
advantageous to the Petitioner on introduction of the clause 2.13. It is,
taking this Court to the settlement at Annexure-8 and the Office order at
Annexure-9 the Petitioner alleged that both these documents nowhere
indicates restriction of benefits to the Petitioner and similarly situated
employees, those who would not opt for the N.T.P.C. pay scale benefit
structure. At the same time the Petitioner also challenged the validity of
the settlement and office order at Annexures-8 & 9, which is claimed to
be remaining contrary to the provision at the Act, 1994. Mr. Mishra,
learned counsel for Petitioner at the same time also admitted that the
Petitioner has also filed O.J.C. Nos.13930/12760/13298 of 1998
challenging the legality of the said settlement and office order
respectively, which are all claimed to be not in accordance with the Act,
1994. It is, in the above background of the matter, Mr. Mishra, learned
counsel for Petitioner requested this Court to allow the writ petition in
interfering in the order of superannuation as well as the relieve order at
Annexures-10 & 11 respectively and thereby granting appropriate relief.
4. Drawing the attention of this Court to the interlocutory order
passed by this Court and also in reference to order dated 6.09.2000
Mr. Mishra, learned counsel for Petitioner contended that for the
protection granted therein in the event of success of the Petitioner
following the direction dated 6.09.2000, he is to be entitled to all benefits,
which he would have got, had he not retired from service. Mr. Mishra,
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learned counsel for Petitioner again in reference to the rejoinder affidavit
at the instance of the Petitioner attempted to raise further grounds through
paragraph nos.4 & 5 particularly in his attempt to challenge both the
orders at Annexure-8 & 9. It is needless to indicate here that for the own
submission of the Petitioner, in paragraph 19 of the writ petition both
Annexures-8 & 9 herein are already in challenge in O.J.C. No.13930 of
1998, O.J.C. No.12760 of 1998 and O.J.C. No.13298 of 1998. Though
these writ petitions are claimed to be pending, but this Court from the
records finds, in disposal of the O.J.C. No.12760 of 1998 through
paragraph nos.10 & 11, this Court has declined to entertain the writ
petition involving these two developments and leaving it open for the
parties to find-out other forum, if any, available and to have its exercise
accordingly.
5. To the contrary Mr. A. Das, learned counsel for the Opposite Party-
Management while not disputing the development in bringing the
employment of the Petitioner to the O.S.E.B. then to the N.T.P.C in view
of the introduction of the Act, 1994 at Annexure-3, submitted that there is
also no denial to the existence of the Settlement vide Annexure-8
governing the parties. For the nature of a tripartite settlement Mr. Das,
learned counsel for the Opposite Parties while not disputing the
protection granted to the Petitioner through Section 10(2) (a) and Section
11(1) of the Act, 1994, however giving reference to the clause 2.13 of the
tripartite settlement involved contended that for the clear provision
through clause 2.13 the Petitioner had a right either to continue with the
package of service condition including retirement as under
O.S.E.B/GRIDCO Rule or to opt for package of service condition under
the NTPC Act and Rules. It is alleged that in spite of a provision being
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made in the tripartite settlement requiring an option by the employees to
switchover to the N.T.P.C service condition, in the event the N.T.P.C
package as a whole was not to the advantage of the Petitioner, nothing
prevented the Petitioner to exercise his option while remaining in service.
It is, at this stage of the matter, Mr. Das, learned counsel for the Opposite
Parties taking this Court to the pleadings of the Petitioner in paragraph
no.11 contended that on his own submission of the Petitioner; had the
Petitioner opted for N.T.P.C pay scale and benefits structure, he would
have lost more than Rs.2,000/- per month resulting a great level of
financial loss all throughout his service career. Mr. Das, learned counsel
for the Opposite Party here contended that the Petitioner cannot choose to
continue in the erstwhile service condition in service aspect and certain
other aspect through the N.T.P.C. service conditions. For the requirement
he had the only option and on the own submission of the Petitioner in
paragraph 11 he is estopped to claim otherwise. Taking this Court to the
counter averments in paragraph nos.6.1 to 6.20 Mr. Das, learned counsel
for the Opposite Party in reference to the plea of the Opposite Parties
therein also contended that the Petitioner went wrong in claiming that the
tripartite settlement was kept secret as the tripartite settlement brought
under the I.D. Act not only as good as an award but also binds all the
parties involved at the time of settlement, further also binds those who are
joining the establishment subsequently. Settlement is of a binding nature.
On reading both the orders under Annexures-8 & 9 Mr. Das, learned
counsel for the Opposite Parties contended that there cannot be isolated
reading of both. It is, in the aforesaid premises Mr. Das, learned counsel
for the Opposite Parties attempted to justify the orders at Annexures-10 &
11 and thus requests this Court for dismissal of the writ petition.
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6. Undisputedly for the provision in the Act, 1994 the services of the
Petitioner was ultimately brought over to the N.T.P.C. and on the own
submission of the Petitioner categorically made in paragraph no.6 in spite
of such transfer and acquisition, the rights and service conditions of the
employee were not altered. It is also further claimed that through Section
10(2) (a) and Section 11(1) of the Act, 1994 the service conditions of the
Petitioner and similarly situated persons were well taken care of. This
Court here takes into account the provisions at Section 10(2) (a) and
Section 11(1) of the 1994 Act, which reads as follows:
"10. (1) Every person who has been
immediately befor ehte appointed day, 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, subject to the provision a.....(sic.) in sub-
section(2).
(a) Subject to the provisions of clauses (b) and
(c) of this sub-section and sub-sections (3)
and (4), all the 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.
11. (1) Every employee of the Power Station
abolished in the Corporation shall 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,
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leave and other matters, as would have been
applicable to him immediately before such
vesting, till his employment under 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.
7. On reading the aforesaid provisions it becomes clear that while
protecting the service conditions of the persons came over from the
erstwhile employer intact, the only departure made through the provision
at Section 11(I) of the Act, 1994 referred to hereinabove and there shall
be protection of all such rights privilege as to pension, gratuity, leave and
other matters as would have been applicable to him immediately before
such vesting till his employment under the new employer is terminated,
or until his remuneration and other conditions of service as a package is
duly attended by the Corporation to his advantage. It is, at this stage of
the matter, this Court finds, Petitioner in clear tone made in paragraph
no.19 of the writ petition that he has already challenged the legality of the
settlement and Office order at Annexures-8 & 9 by filing O.J.C.
Nos.13938/12760/13298 of 1998. In course of hearing on production of a
copy of the judgment in O.J.C. No.12760 of 1998 decided by this
particular Bench in its judgment dated 19.01.2016, this Court finds, in
paragraph nos.10 & 11 therein on the aspect of challenge to the settlement
involved this Court has come to observe as follows:
"10. Per contra, by filing a preliminary counter affidavit
as well as notes of submissions supported with affidavit, the
opposite parties contended that a settlement on the core
issue is already arrived at in course of a conciliation
proceeding under the provisions of Industrial Dispute Act,
1947 hereinafter called as the Act, 1947, the disputes raised
herein is for an Industrial Adjudication and as such the
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petitioners are estopped from raising the present disputes by
way of a writ petition under Article 226 of the Constitution
of India, the writ petition as a whole is not maintainable.
The opposite parties further submitted that the
settlement being a tripartite settlement, it not only bind the
Union participated in the settlement but also binds all the
workmen and it is in this circumstance, requested for not
entertaining the writ petition and directing the petitioners to
take recourse to the Dispute Redressal Mechanism provided
under the I.D. Act, 1947.
11. In answering to the submission of the petitioners
that in view of the provisions contained in Section 18 of the
Act, 1994 taking away the effect of the settlement under
Section 18 of the I.D. Act, the opposite parties through their
Senior Counsel contended that the stipulation therein clearly
mandates that the provisions under the T.T.P.S. Act or the
Act, 1994, they have effect notwithstanding anything
inconsistent therewith contained in The Code of Civil
Procedure, 1908, The Transfer of Properties Act, 1882 or
The Registration Act, 1908 or in any other State Laws for
the time being in force and any instrument have effect by
virtue of any of the said laws other than this Act and
consequently, the provision of the Act 1994 do not over ride
any Central law or in any instrument having effect by virtue
of the said laws and therefore the tripartite settlement dated
20.08.1998 arrived in course of conciliation is binding on all
including the petitioners."
8. It is, in the circumstance, this Court taking into account the
Petitioner's challenge in paragraph no.19 to the particular settlements also
involved herein and the consequential Office letter at Annexures-8 & 9,
finds, the same are not open to be considered until unless the judgment of
this Court in W.P.(C) No.12760 of 1998 is interfered with and/or altered
by higher forum.
9. It is here taking into consideration the requirement of option to
switchover to N.T.P.C. structure, this Court reading through the clause
2.13 of the tripartite settlement at Annexure-8 also taken note
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hereinabove, finds, the Petitioner has clear admission through paragraph
no.11, reasoning not to go for such option. For the background involved
herein, this Court is of the view that once the Petitioner comes to admit
that he had less than 10 years of service before superannuation as on
3.06.1995 and if he opts, he would have lost more than Rs.2000/- per
month from salary, it gives a clear indication that the Petitioner chose not
to give his option to switchover his service condition to the N.T.P.C.
service conditions. This Court, therefore, observes, while the Petitioner
chooses to remain in certain set of condition available under the erstwhile
employer, at the same time claimed to be governed by the N.T.P.C. Rules
only so far it relates to age of superannuation, whole option must go as
one package either under the benefits of the erstwhile employer or the
whole benefits under the new employer and not otherwise.
10. As discussed hereinabove, while the Petitioner was aware of the
provision at Section 10(2) (a) and Section 11(1) of the Act, 1994, he has
also come to know regarding existence of the conditions through tripartite
settlement. This Court here observes, once the Petitioner choose not to
come otherwise with his option under the requirement of tripartite
settlement to switchover to the N.T.P.C. condition, there is voluntary
abandonment of the compulsory requirement. This Court, therefore, holds
that the Petitioner has made his case fail by his own conduct.
11. The writ petition thus stands dismissed. In the circumstance there is
no order as to cost.
(...........................)
Biswanath Rath
Judge
Orissa High Court, Cuttack.
The 9th day of March, 2022//
Ayaskanta Jena,
Senior Stenographer
