Orissa High Court

Saudamini Swain And Another vs State Of Orissa And Others ....... Opp. ... on 21 February, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

            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

st 21 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

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

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,

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

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 xxxxx xxxx Xxxx xxxx xxxx

5. The petitioners, if aggrieved by the fixation of scales of pay and other conditions, are entitled to challenge or agitate the same 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.

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

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

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.

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

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

16/19.06.2000. Said circular was challenged before this

Court in OJC No. 5568 of 2000, which is subjudice but the

circular was acted upon and implemented. NTPC

management persuaded the DAV Management to absorb the

teaching staff of the taken over High Schools, which was

accepted. NTPC therefore, offered in writing the option to the

petitioners to accept the offer of the DAV failing which they

would be treated as surplus and would have to be terminated

from service. The DAV management offered to pay the total

emoluments (Basic Pay + DA) to the teachers on the

condition that the same shall not be less than the

emoluments received by the petitioners.

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

staff on the basis of their cadre/grade under their former

employer. Section 11 of the Act clearly provides that the

service conditions of the taken over employees shall not be

less favourable to what was available to them prior to the

taking over. As such, the offer given by the DAV management

for granting only the basic pay and DA cannot, by any stretch

of imagination, be treated as favourable to the petitioners

who were enjoying various allowances and pension.

Moreover, the petitioners were threatened with termination of

their services in case of non-acceptance of such offer. The

claim of the petitioners also cannot be rejected by treating

them as non-workmen in view of the fact that they are

members of NTPC Power Workers' Union and were

participating in the elections and were also enjoying several

benefits granted to other employees of OSEB/GRIDCO under

various settlements entered into by the management with the

Unions. NTPC itself has provided a list of employees

including the names of the teaching staff to the Labour

authorities for the purpose of holding secret ballot for

electing the recognized union. The teaching staff have been

treated at par with various categories of employees/workmen

such as Semi-Skilled-A, Semi-Skilled-B, Skilled-A etc. The

offer given by NTPC is highly humiliating and arbitrary. In

fact, because of such gross discrimination meted out to the

petitioners they are in receipt of salaries and allowances less

than that received by even peons and messengers.

SUBMISSIONS

16. 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

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

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

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

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

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

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

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

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

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

were in consonance with the direction of this Court in

OJC No. 13155 of 1998 and OCRMC No. 103 of

2002?

(iii) Whether the claim of the petitioners of being

discriminated in the matter of grant of appropriate

pay scale and allowances etc. is valid.

(iv) What relief are the petitioners entitled to?

ISSUE NO.(i)

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

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.

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 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.

(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

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 redeployment in the Board or under the State Government Departments;

(iii) further twenty-five percentum of them shall be absorbed in order of their suitability as may be 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

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, 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.

(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

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.     Petitioners    Qualification Designation      Date of    Pay Scale revised
      No.                                                   Joining    by GRIDCO w.e.f
                                                                       01/04/1995 & in
                                                                          which the
                                                                        teachers were
                                                                        drawing salary
      1     Dhiramani        M.A. B.Ed    Asst. Teacher   01/08/1981   4760-9370
            Manthan
      2     Saudamini        Matric ITI   Asst. Teacher   21/01/1984   3600-6550
            Swain
      3     Gobardhan Naik   B.A B.Ed     Craft Teacher   25/02/1984   3600-6550

      4     Sibamohan        TGT          Asst. Teacher   10/04/1976   4760-9370
            Senapathy
      5     Lambodhar        Matric CT    Asst. Teacher   16/11/1977   3600-6550
            Pradhan

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.

However, the petitioners being teachers were left out from the

settlement on the ground that they are not workmen within

the meaning of Industrial Disputes Act. As already stated, it

has been the consistent stand of NTPC that the petitioners

are not workmen and hence cannot be equated with the

workmen absorbed in NTPC. It is true that being teachers,

the petitioners cannot obviously be treated as workmen

within the meaning of Section 2(s) of the Industrial Disputes

Act but then, this Court finds from the record that apparently

for want of a specific cadre in the erstwhile establishment,

the teachers have been treated at par with different

categories of workmen. As per the document enclosed to the

rejoinder vide Annexure-18, the OSEB in its 304th meeting

held on 25.02.1988, granted TBA Scales for its employees,

wherein all the employees were broadly categorised as

workmen with sub-categories such as Unskilled, Semi-

Skilled-B, Semi-Skilled- A, Skilled-C, Skilled-B, Skilled-A,

Highly Skilled-B, Highly Skilled-A Supervisory-C and

Supervisory-B. They were further classified as Administrative

and Technical. Most significantly, the teachers have been

included under the sub-classification of Administrative in

appropriate grades. For instance, Asst. Teacher is treated as

Semi-Skilled-A; Asst. Teacher Matric Trained, Matric

Teacher, P.E.T., and Head Pandit (U.P. School) have been

treated as Skilled-B; Asst. Teacher Trained, I.A. Asst. Teacher

(Arts), Hindi Teacher and Graduate Teacher have been

treated as Skilled-A; Sanskrit Teacher is Highly Skilled-B;

Asst. Teacher Trained Graduate is Highly Skilled-A

Supervisory 'C'; and Headmaster is Supervisory-B.

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

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:

COMPARATIVE STATEMENT REVISED GRIDCO PAY SCALE/ALLOWANCES AS ON 02/06/1995 Name S.M. SENPATY L. PRADHAN C. N.K. PRADHAN PARIDA EMP. No. 94416 94471 95303 94062 Qualification B.A. Bed. B.A. Bed. Matric Under Matric Designation Asst. Teacher Asst. Teacher Clerk-B Peon Post Held TGT M. CT. Clerk-B Peon DOJ 10/4/76 16/11/77 2/1/76 1/6/65 Category Time bound advance - Skilled -A Skilled-A -

      pay scale after 15
      years
      Retd. Age                    58              58          58         60
      Scale of Pay            4760-9370       4020-7380    4020-7380  2550-4551
      Basic Pay                  5990            5220         5760      4131
      D.A.                          -               -           -          -
      Medical Allowance            63              54          61         44
      Conveyance                  100             100         100        100
      Allowance
      Thermal Allowance           240             240         240        120
      Total                      6336            5614         6161      4395
                           As on January- 2005

                          OSEB/ GRIDCO                                  NTPC
      CATEGORY                      High        Skilled-B        W-7            W-2
                               Skilled/Sup.C
      Time bound advance              -        High Skill-B       -               -
      pay scale after 25 years
      Scale of Pay              4760-9370      4400-7905      6700-11750     4700-9010

      Pay                         7670            6785          11267           7506
      DA                          4679            4139          5791            3964





         Medical Allowance           230             204       Reimbursable    Reimbursable

        Thermal Allowance           240             240            -               -

        Allowance

        Generation Incentive        -                  -        1447.63          1020.58
        Quarterly Incentive         -                  -        1709.38          1205.10




        Total                   12,919.00         11,468.00    21,922.01        15,231.68

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

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.

            Sl. No.   OSEB Structure       NTPC Structure
           01.       Unskilled            W2
           02.       Semi Skilled-B       W3
           03.       Semi Skilled-A       W4
           04.       Skilled-C            W5
           05.       Skilled-B            W6
           06.       Skilled-A            W7
           07.       Highly Skilled-B     W8
           08.       Highly Skilled-A     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

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.

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

(1997) 10 SCC 741

(1985) 1 SCC 523

(1997) 7 SCC 334

workmen, there was no reason as to why the same should

not have been granted to the teachers. Not doing so amounts

to discrimination, hit by the principle of equality under

Article 14 of the Constitution of India. Thus, on peculiar facts

of the case, this Court is of the considered view that cited

judgments are not applicable.

ISSUE NO.-(ii)

45. Coming to the contention that NTPC was also guilty

of not complying with the specific direction of this Court in

the earlier writ application, as already stated, this Court

taking note of the specific stand taken by the NTPC in its

counter affidavit directed it to frame necessary rules and

regulations keeping in view the prescription under Section 11

of the 1994 Act. In purported compliance of such direction,

NTPC came up with the impugned office order dated

03.12.2004 (Annexure-4) proposing certain rules and

regulations for the teaching staff. As regards pay scale,

fixation of pay, annual increments and DA, the said office

order proposed different scales for different categories of

teachers by considering the OSEB pay scale, pay scales

under OSRP Rules, 1989 and pay scales under OSRP Rules,

1998. The revised pay scales of GRIDCO which came into

effect from 01.04.1995 was also taken into account, but

despite doing so, NTPC proposed to extend the pay scales

under OSRP Rules, 1989 and OSRP Rules, 1998. It is not

understood as to why the OSRP Rules was sought to be

applied to the teaching staff when the other employees of

TTPS including the non-teaching staff of the three Schools

had been extended the NTPC pay scales. From the

comparative statement given below, it would be apparent that

giving effect to the proposed service conditions would have

resulted in reduction of emoluments received by the

petitioners.

COMPARATIVE STATEMENT AS PER OFFICE ORDER REF. NO. 045-8-ER/13614 3RD NOV. 2004.

PARA TABLE 5.2.2. AND 5.3.2. AS ON 03.06.1995

Name Sibamohan Senapaty Lambodar Pradhan Employee No. 94416 94471 Qualification B.A. B.Fd. B.A. B.Fd.

      Post Held                      T.G.T.                              M.C.T
                       OESB/GRIDCO PROPOSED               OESB/GRIDCO          PROPOSED
                                         OSRP-1989                             OSRP-1989
                       4760-150(5)-      1600-50-2300-    4020-115(5)-4595- 1400-40-1800-
       Scale of Pay
                       5510-160(5)-      EB-60-2660       125(5)-5220-         EB-50-2300
                       6310-170(18)-                      135(16)-7380

      Basic Pay        5990              2150             5220               1850
      DA               Nil               2688             Nil                2313
      Total            5990              4838             5220               4163

46. As already stated, this Court, while dropping the

contempt proceeding (ORMC No. 103 of 2002) was of the view

that the points urged by the petitioners need proper

consideration by the Management. That apart, it was also

observed 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. From what is

narrated hereinbefore, this Court is also of the considered

view that the proposed service conditions as per office order

dated 03.12.2004 cannot be treated as a full compliance of

the direction of this Court being in apparent violation of the

mandate of Section 11 of the Act. It is stated at the cost of

repetition that this Court directed the NTPC management to

frame rules in view of the prescription of Seciton-11 of the

1994 Act. So, essentially compliance of the mandate of

Section 11 was the paramount consideration for this Court

while issuing the direction. This Court in OCRMC No. 103 of

2002, granted liberty to the petitioners to raise their

grievance with regard to fixation and parity of their scale of

pay by way of representation with direction to the

Management to consider the same in its proper perspective.

Pursuant to such direction, the representation dated

14.02.2005 was submitted by the petitioners. NTPC in its

letter dated 29/30.03.2005 informed the petitioners that the

revised conditions of service of the teaching staff is being re-

examined. There was no further response in so far as the

representation dated 14.02.2005 is concerned. But

surprisingly, acting on a representation submitted by another

group of teachers on 09.02.2005, the General Manager of

NTPC, in letter dated 23/25.05.2005 intimated that their

request had been examined keeping in view the judgment

passed by the High Court and the order passed in the

contempt proceeding and gave an offer to the teachers to be

redeployed in NTPC pay scale and benefit structure in the

post of stenographer at any unit of NTPC other than TTPS

wherever vacancy exists with a condition that such

redeployment will be subject to their acquiring typing and

shorthand speed as applicable to Stenographer post in NTPC

and qualifying in the test for the same. The pay scale was

fixed at Rs.6700-11750/- in W7 grade. This Court is of the

view that having assured the petitioners in its letter dated

29/30.03.2005 to re-examine the revised conditions of

service of the teaching staff framed on 03.12.2004, it was

obviously not open to the Management to come up with such

an offer that had no bearing whatsoever with the service

conditions framed on 03.12.2004. By letter dated

06.08.2005, the petitioners rightly refused to accept such

offer.

47. Before going further into the above aspect it would be

apposite at this stage to mention that according to learned

counsel appearing for NTPC, as many as four offers were

given to the petitioners regarding their fitment and placement

in appropriate grades purportedly in consonance with the

mandate of Section 11. By letter dated 09.09.1999, the

petitioners were informed that as on 03.06.1995 they shall be

fitted from the existing OSEB 1990 pay scale to the pre

revised scales of pay for teaching staff under OSRP Rules,

1989 till 31.12.1995 and thereafter, the revised scales of pay

for teaching staff of Odisha Government w.e.f. 01.01.1996

with full revision benefits shall be granted. The teachers did

not accept the offer though no communication in this regard

was made by them. By office order dated 19.06.2000, the

Management informed that the taken-over Schools were

decided to be run under the Management of DAV, CMC.

Accordingly, offer letters were issued by the DAV

Management in June, 2002 indicating that their total

emoluments (Basic Pay +DA) shall not be less than their

present emoluments (Basic Pay + DA). There was no response

from the petitioners. The third offer is the order dated

03.12.2004 (Annexure-4) proposing the service conditions,

which has already been discussed hereinbefore. The fourth

and final offer of the NTPC is letter dated 23/25.05.2005

(Annexure-8), which has also been discussed hereinbefore.

As already stated, this Court has found that none of

the offers extended to the petitioners was in conformity with

the mandate of Section 11 of the 1994 Act rather, were

disadvantageous to them. Therefore, this Court is of further

view that non-acceptance of such offers cannot act as

estoppel.

48. The final offer vide letter dated 23/25.05.2005 needs

special mention. Teachers were asked to become

Stenographers! Persons, who had rendered decades of service

as teachers, were asked to get themselves trained to acquire

proficiency, pass the qualifying test and be redeployed as

Stenographers in other units of NTPC. For one, the offer is,

on the face of it, humiliating as rightly contended by learned

counsel for the petitioners. Secondly, this Court has not

found anything to suggest that there was any legal

impediment in treating the petitioners at par with other

employees, including the non-teaching staff of the School,

who were taken on NTPC Pay Scale and benefit structure.

Thirdly, it was given out that in case the petitioners did not

opt for fitment in NTPC pay scale and benefit structure as

offered, they shall continue in the existing pay scale and

benefit structure. The choice thus, given to the petitioners

was nothing but a 'Hobson's Choice', meaning, no choice.

Viewed plainly, the petitioners/teachers, being already

treated at par with different categories of workmen, could

have been fitted in appropriate pay scales of NTPC like the

workmen and other taken over employees of TTPS. The fact

that NTPC does not have a cadre of teachers in its

establishment is immaterial inasmuch as on its own

admission, the Management of the Schools owned by NTPC is

entrusted to DAV, CMC. In such event, the teachers working

under Management of DAV could also have been granted

NTPC scale of pay.

49. It is well settled that an unfair or unreasonable

contract cannot be endorsed by the Court. Moreover on the

face of unequal bargaining power of the parties the above

principle becomes all the more relevant. This proposition was

highlighted by the Supreme Court in the case of the Central

Inland Water Transport Corporation Ltd, v. Brojo Nath

Ganguly and Anr4, in the following words.

"88. As seen above, apart from judicial decisions, the United States and the United Kingdom have statutorily recognised, at least in certain areas of the law of contracts, that there can be unreasonableness (or lack of fairness, if one prefers that phrase) in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control or as a result of situations not of their creation. Other legal systems also permit judicial review of a contractual transaction entered into in similar circumstances. For example, Section 138(2) of the German Civil Code provides that a transaction is void

(1986) 3 SCC 156

"when a person" exploits "the distressed situation, inexperience, lack of judgmental ability, or grave weakness of will of another to obtain the grant or promise of pecuniary advantages ... which are obviously disproportionate to the performance given in return". The position according to the French law is very much the same.

89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws".

The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood

only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances."

It is not unreasonable to suppose that the 7

teachers, who are said to have accepted the above offer,

may have succumbed to pressure having perhaps

realised their inability to put up a fight against the

mighty management, which the present petitioners have

attempted. In the case of Chairman and MD NTPC Ltd.

v. Reshmi Construction, Builders and Contractors5,

Supreme Court referring to maxim 'Necessitas Non

Habet Legem' observed as follows-

(2004) 2 SCC 663

"Further, necessitas non habet legem is an old age maxim which means necessity knows no law. A person may sometimes have to succumb to the pressure of other party to the bargain who is on a stronger position."

In this context it would be apposite to state that

NTPC, being a Public Sector Undertaking (PSU) under the

Government of India, can also be treated as a functionary of

the State. As such, the obligation cast upon the State to act

as a model employer can also be extended to a PSU like

NTPC. In other words, as a model employer, NTPC has a

social obligation to treat its employees in such manner that

no employee feels left out from the benefits extended to other

employees.

50. The Supreme Court expressed the above sentiment

in its judgment in the case of Bhupendra Nath Hazarika and

another v. State of Assam and others6 in the following

words-

61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.

62. Almost a quarter century back, this Court in Balram Gupta v. Union of India [1987 Supp SCC

(2013) 2 SCC 516

228 : 1988 SCC (L&S) 126 : (1987) 5 ATC 246] had observed thus : (SCC p. 236, para 13) "13. ... As a model employer the Government must conduct itself with high probity and candour with its employees.

xx xx xx"

51. Therefore the argument that seven of the teachers

accepted the offer dated 23/25.05.2005 does not necessarily

make it a valid or acceptable offer for all.

ISSUE NO.(iii)

In the preceding paragraphs it was mentioned that

the petitioners were treated at par with different categories of

workmen by the erstwhile employer being sub-classified as

Administrative Grade. An office order was issued by NTPC on

21/22.08.1998 providing pay scales, allowances, benefits

and other terms and conditions of service of workmen on the

regular rules of TTPS absorbed in NTPC. This was evidently

on the basis of the so called tripartite settlement entered into

by the Management with the concerned trade union. Clause-

2.2 provides the equivalence of grades in workmen category

between OSEB pay scales and NTPC pay scales as on the

date of absorption in the following tabular form.

       Sl.        OSEB               Pay Scale      NTPC Structure    Grade
      No.      Structure                           (Revised w.e.f.
             (Revised w.e.f.                         01.01.92)
               01.04.90)                             Pay Scale
                 Grade
      01.    Unskilled          860-22-1058-26-    2100-40-2380-     W2
                                1240-30-1540       45-2965
      02.    Semi-Skilled-B     930-26-1086-30-    2175-45-2490-     W3
                                1296-35-1611       50-3140
      03.    Semi-Skilled-A     1050-30-1200-35-   2230-50-2580-     W4
                                1375-40-1735       55-3295
      04.    Skilled-C          1150-40-1350-45-   2285-60-2705-     W5
                                1665-50-2115       70-3615
      05.    Skilled-B          1250-45-1520-50-   2350-70-2240-     W6
                                1920-55-2250       80-3880
      06.    Skilled-A          1345-50-1595-55-   2485-80-3045-     W7
                                1980-60-2530       85-4150
      07.    Highly Skilled-B   1390-60-1810-65-   2575-85-3425-     W8
                                2265-70-2685       95-4375
      08.    Highly Skilled-A   1355-65-2040-70-   2755-105-3805-    W9
                                2600-75-3200       115-4955

52. Clause- 2.3.1 provides for the placement in the

equivalent grade of workmen who had not completed ten

years of service as on the date of absorption, while clause

2.3.2 provided for the same for the workmen who had

completed ten years of service. Same being relevant for the

present case, is quoted hereinbelow:

2.3.1 All workmen who have not completed 10 years of service in their existing grade as on 03.06.95 (4 years in case of ITI qualified workmen in their respective trade) will be placed in equivalent grade as per the table at 2.2. above w.e.f. 03.06.1995. On placement they will be redesignated as per corresponding designation existing in NTPC structure.

2.3.2 The workmen who have completed 10 years of service or more in existing grade and payscale as on 03.06.95 (4 years or more in respect of ITI qualified workmen in their respective trade) will be placed in the next higher grade in NTPC w.e.f. 03.06.1995 as

under. The corresponding pay scales will be as stated in para 2.2. above."

53. The petitioners have attempted to show that the

persons placed in the same grade under the erstwhile

employer were given higher pay scales as compared to them.

In particular, a comparison is sought to be made between

one Rabinarayan Barik, who was working as Junior Grade

Typist and Lambodar Pradhan (petitioner No.2 in W.P.(C) No.

3217 of 2006). Both were on the pay scale Rs.4020-115-

4595-125-5220-135-7380. The pay of both as on 01.04.1995

was fixed at Rs.5220/-by the GRIDCO in view of the pay

revision effected on 23.07.1998. It would be useful at this

stage to refer once again to the classification made by the

erstwhile OSEB vide order dated 14.04.1988 regarding time

bound advancement pay scales of its employees i.e.,

Annexure-18. What is relevant to note is that both the Junior

Grade Typist as well as Asst. Teacher (Matric Trained) were

categorised as Skilled-B with the sub-classification-

Administrative. Petitioners have relied upon the pay slip of

said Rabinarayan Barik as well as Lambodar Pradhan for the

month of January, 2011. Rabinarayan Barik has been

described as W-9 with his total emoluments being

Rs.68,852.20. Lambodar Pradhan, on the other hand, has

been described as Highly Skilled-B with his total emoluments

being Rs.30,210/-. Thus, while both the employees were in

receipt of same emoluments under the erstwhile employer,

the same was materially altered upon their absorption in

NTPC so much so that the emoluments of Rabinarayan Barik

became more than double of that of Lambodar Pradhan. The

above fact being brought on record by the petitioners in the

additional affidavit filed in the case, the NTPC in its reply

affidavit has stated as follows:

"7.0. In reply to paragraph 6 the deponent most humbly says and submits and adopts the submissions in the paragraphs herein above. R.N. Barik, Junior Steno Typist was changed to NTPC pay & benefit structure, etc., in terms of the tripartite settlement dated 20.08.1998 under the Industrial Disputes Act, 1947. Accordingly, he has been drawing salary under the NTPC pay & benefit structure w.e.f. 03.06.1995. The petitioner and other teachers being not covered under the tripartite settlement dated 20.08.1998 and having on their own volition and choice not opted and accepted the NTPC pay & benefit, etc are estopped in law from raising any grievance. The petitioner continuing under the revised GRIDCO structure cannot therefore compare with the salary drawn by R.N.Barik under the NTPC structure. The OPs adopt the submissions in the above paragraphs and the same are not reiterated for the sake of brevity and convenience."

54. In essence, according to NTPC, the petitioners not

being workmen were not covered under the tripartite

settlement dated 20.08.1998 and not having accepted the

offers given by NTPC cannot compare themselves with the

salary drawn by Rabinarayan Barik under the NTPC

structure. The above plea can be considered only to be

rejected for the following reasons:

Firstly, Section 11 of the 1994 Act does not make

any distinction between workmen and non-workmen but

speaks of 'every employee' of the Power Station absorbed in

the Corporation.

Secondly, the provision mandates that such

employee shall hold office or render service under the

Corporation on the same terms and conditions as would have

been applicable to him immediately before such vesting. So,

the action of NTPC in picking up only a section of employees

of TTPS, even if they are in majority, and fitting them to its

pay structure under the so called tripartite agreement but

offering the remaining employees unacceptable offers of

fitment to their disadvantage is certainly not what is intended

by Section 11.

Thirdly, there is no provision in the 1994 Act

permitting NTPC to segregate the employees of TTPS into

different categories.

Finally, this Court is unable to accept that the so-

called offers given by NTPC were worthy of acceptance in the

first place so that refusal of the petitioners to accept them

would estopp them from laying a valid claim.

55. Thus, the mandate of Section 11 was to maintain the

status as existing immediately prior to the date of vesting.

This is where NTPC appears to have gone beyond the

provisions of the 1994 Act by entering into separate

agreement for the workmen category of employees. Be that as

it may, it was still imperative for NTPC to have accepted the

status of the other employees as existing immediately prior to

the date of vesting. Viewed thus, the status of teachers of

being at par with different categories of workmen with

corresponding pay scales ought to have been accepted as the

foundation for their further fitment in NTPC pay scale but by

treating them otherwise, the terms and conditions on which

the teachers were employed under the previous employer was

never maintained.

56. Much has been argued with regard to the effect of

the non-acceptance by the teachers of the four offers given by

the NTPC from time to time. The law of estoppel has been

invoked in this respect. Law is well settled that there can be

no estoppel in case of a contract between two unequals. In

the instant case, teachers were pitted against the mighty

NTPC and therefore, had practically no bargaining power

unlike the workmen who were represented by the trade

unions resulting in a much favour fitment for them as per the

terms of the tripartite settlement. The teachers however,

despite being members of the trade union, were not made

parties to the settlement.

57. From what has been narrated hereinbefore, this

Court is left with no doubt that the claim of the petitioners of

being discriminated in the matter of grant of appropriate pay

scales and allowances is valid.

ISSUE NO.(iv)

58. Having held thus, this Court would now proceed to

examine as to what relief can be granted to the petitioners.

Since the petitioners were treated at par with different

categories of workmen prior to vesting, there is no other

option open to NTPC than to treat them as such in view of

the provision under Section 11 of the 1994 Act. This would

entail firstly, ascertaining the appropriate grade in which

they were fitted in the former establishment and the

equivalent grade under NTPC structure to be extended to

them. To illustrate, petitioner No.1 in W.P.(C) No. 3217 of

2006, Sibamohan Senapati being a Trained Graduate

Teacher was treated at par with Highly Skilled-

A/Supervisory-C category. As per the equivalence of grades

effected for workmen (having more than 10 years of service)

the equivalent grade under NTPC structure is W-10 in the

pay scale of Rs.2865-115-4015-125-5265. Similarly,

petitioner No.2 in W.P.(C) No.3217 of 2006, Lambodar

Pradhan, being Matric CT Asst. Teacher, was treated at par

with Skilled-B category. So, the equivalent grade under NTPC

structure is W-5 in the Pay Scale of Rs.2350-70-2840-80-

3880. On such basis the Basic Pay, DA, VDA and other

allowance need to be worked out right from the date of

absorption i.e. 03.06.1995.

59. As regards the date of superannuation, it is to be

noted that once the petitioners are absorbed in NTPC then as

per Section 11 of the 1994 Act, they are entitled to be

governed by the Rules and Regulations of NTPC. As already

indicated, by Memo dated 02.09.1998, the Manager (Pers.)

clarified that 'For the purpose of any rule of NTPC where age

of retirement is required, to be considered, the age shall be

reckoned as 60 years'. Therefore, the petitioners, having been

absorbed in NTPC are eligible to be superannuated on

attaining the age of 60 years. It is borne out from the

pleadings and materials on record that the 7 teachers, who

had accepted the offer dated 25/23.05.2005, were allowed to

superannuate at 60 years. Most surprisingly however, the

petitioners were superannuated at the age of 58 years

evidently because they had not accepted the above mentioned

offer. So, even though they became full-fledged employees of

NTPC not only that they were never given NTPC pay scales

but also were made to retire from service at a different age. It

resulted in having two different ages of superannuation for

the employees of one organization, which is hardly

conscionable in law. Be it noted that challenging the letters

issued by the Management regarding their dates of

superannuation, the petitioners filed interlocutory

application being Misc. Case No. 7621 of 2011 in the present

writ application and this Court, passed the following order on

23.07.2007:

W.P.(C) No 3217 of 2006

5. 23.07.2007 Heard.

This misc. case has been filed by the petitioners for stay of order of superannuation dated 23.04.2007 (Annexure-1).

According to learned counsel for the petitioners, that they have been working as teachers in school of Talcher Thermal Power Station since Orissa State Electricity Board was in operation, which was subsequently taken over by NTPC as per 10(2)(a) and 11(1) of the TTPS (Acquisition and Transfers) Act, 1994, which contains the provisions for protection of service conditions of the petitioners that was prevailing while the petitioners, were serving under TTPS Now the learned counsel for the petitioners submits that as undisputedly the petitioners are the employees of NTPC they may be given salary as per the scale meant for the NTPC employee and they should also be superannuated at the age of 60. Mr.Das, learned counsel for the OPs pointed out that the petitioners are yet to accept the proposal of the NTPC for which they have remained in the scale of pay and other service conditions as it was applicable to

TTPS employees. However, learned counsel for the petitioners contested the contention by. stating that there cannot be two different age of superannuation, one for the direct employees of the NTPC and another for teachers of school run by the NTPC being taken over from TTPS. But all these aspects can be taken care of during final hearing of the writ petition. From what is narrated before, this Court is of the considered view that the petitioners could not have been discriminated with regard to their age of superannuation.

Therefore, we are not inclined to grant stay as prayed for. However, we make it clear that the petitioners shall be entitled to all the benefits including financial benefits that would accrue in that would accrue in the event they succeed in the writ petition.

The misc. is disposed of accordingly.

List W.P.(C) No. 3217 of 2006 in the list of fresh admission on 21st August, 2007.

Issue urgent certified copy of this order as per rules.

[Emphasis added]

60. The date of superannuation being 60 years for the

employees of NTPC, the same also ought to be extended in

favour of the petitioners. As such, the petitioners shall be

entitled to differential pay scales from 03.06.1995 till the

date of superannuation calculated as 60 years.

61. Further, NTPC not having been able to demonstrate a

plausible and justified reason for not extending the due

benefits to the petitioners including pension and pensionary