Meghalaya High Court
The Joint Action Committee Neepco Ltd vs The Union Of India on 2 September, 2016
Author: Ved Prakash Vaish
Bench: Ved Prakash Vaish
IN THE HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 185 of 2014
1. The Joint Action Committee
North Eastern Electrical Power Corporation limited
(A Government of India Enterprise) represented by
Shri Samiran Goswami
Son of late Narendra Nath Goswami,
General Secretary of Association of Engineers,
Brookland Compound, Lower New Colony,
Shillong, PIN - 793 003, Meghalaya.
2. Association of Engineers, NEEPCO.
Having its Office at Brookland Compound,
Lower New Colony, Shillong-793003.
3. Shri. Devapriya Choudhary,
Son of Shri Durgesh Choudhary,
Presently serving as DGM (Electrical) and
President, Association of Engineers,
NEEPCO Ltd., Brookland Compound,
Lower New Colony, Shillong-793003.
4. Shri. Partha Pratim Das,
Son of (L) B.C.Das
Presently serving as DGM(Civil)) and
Vice President, Association of Engineers,
NEEPCO Ltd., Brookland Compound,
Lower New Colony, Shillong-793003.
5. Diploma Engineers Association,
NEEPCO. Having its Office at Brookland Compound,
Lower New Colony, Shillong-793003.
6. Shri Gajendra Nath Kakoti,
Son of (L) Kuthiram Kakoti,
Presently serving as Manager (Civil) and
President, Diploma Engineers Association,
NEEPCO Ltd., Brookland Compound,
Lower New Colony, Shillong-793003.
7. Shri Hemen Das,
Son of (L) K Das,
Presently serving as Assistant Manager (Civil)
and Sectretary, Diploma Engineers Association,
NEEPCO Ltd., Brookland Compound,
Lower New Colony, Shillong-793003.
8. NEEPCO Executive Association,
Having its Office Brookland Compound,
Lower New Colony, Shillong-793003.
WP(C) No. 185 of 2014 Page 1 of 12
9. Shri Swaprakash Dutta,
Son of (L) N.K.Dutta,
Presently serving as Senior Manager (HR)
And Vice President, NEEPCO Executive Association,
NEEPCO Ltd., Brookland Compound,
Lower New Colony, Shillong-793003.
10 Shri Prantik Bordoloi,
Son of Shri M.Bordoloi,
Presently serving as Manager (HR) and
Secretary, NEEPCO Executive Association,
NEEPCO Ltd., Brookland Compound,
Lower New Colony, Shillong-793003.
...Petitioners
-VRS-
1. The Union of India represented by the
Secretary to the Government of India,
Ministry of Power, Shram Shakti Bhawan,
Rafi Marg, New Delhi, PIN - 110001.
2. The North Eastern Electric Power Corporation
(A Government of India Enterprise) represented by
Its Chairman and Managing Director,
Brookland Compound,
Lower New Colony, Shillong-793003.
3. The Secretary to the Government of India,
Department of Public Enterprises
Public Enterprises Bhawan
Block No.-14, CGO Complex,
Lodhi Road, New Delhi,
PIN-110003.
4. National Thermal Power Corporation Ltd.
(A Government of India Enterprise)
National Thermal Power Corporation Bhawan,
SCOPE Complex,
Institutional Area, Lodhi Road,
New Delhi, PIN - 110003.
5. POWERGRID Corporation of India ltd,
(A Government of India Enterprise)
Corporate Office Saudamini,
Plot No. 2, Sector - 29,
Near IFFCO Chowk, Gurgaon,
Haryana, PIN - 122001.
6. Power Finance Corporation Ltd,
(A Government of India Enterprise)
Urjanidhi, 1, Barakhamba Lane,
Connaught Place, New Delhi
PIN-110001.
....Respondents
WP(C) No. 185 of 2014 Page 2 of 12
BEFORE
HON'BLE MR JUSTICE VED PRAKASH VAISH
Present
Mr. HS Thangkhiew ... Counsel for Petitioners
Mr. P. Nongbri
Mr. R. Debnath ... Counsel for Respondents
Mr. VK Jindal
Mr. N. Khera
Mr. R. Jha
Date of Hearing ... 02.09.2016
Date of Judgement ... 02.09.2016
JUDGEMENT
BY HON'BLE MR. JUSTICE V.P. VAISH (ORAL) The present petition has been filed by the Joint Action Committee, North Eastern Electric Power Corporation (NEEPCO) General Secretary praying inter-alia for the following relief:
"In the premises aforesaid, it is therefore most respectfully prayed that Your Lordships may be pleased to admit this Petition, call for the records and issue a Rule calling upon the Respondents to show cause as to why a Writ in the nature of Mandamus and/or Certiorari should not be issued by directing the Respondent No.1 to set aside and quash the Office Memorandum No. 11/17/2009-NHPC/Vol.III dated 27.12.2013 (Annexure-11) and to keep/maintain any pay difference till today and in future in between the Petitioner NEEPCO employees and the employees of other Respondents CPSEs like NTPC, PGCIL, PFC etc. and direct the official Respondents to implement uniformly the IDA pay revision in respect of the Petitioner NEEPCO employees with effect from 01.01.1997 and 01.01.2007 at par with the employees of other Respondents CPSEs like NTPC, PGCIL, PFC etc as had been done earlier and upon cause or causes being shown and after hearing the parties and on perusal of the record Your Lordships may be pleased to make the rule absolute or to pass such order or orders as your Lordships may deem fit and proper."
2. Thereafter, the petitioner moved Misc. Application bearing MC (WPC) No. 219 of 2015 and vide order dated WP(C) No. 185 of 2014 Page 3 of 12 09.11.2015 the petitioner was allowed to implead 9(nine) petitioners. Thus, the petitioner impleaded petitioners No. 2 to 10.
3. Brief facts as culled out from the petition are that the petitioners filed the present writ petition against the decision of the Government of India on regularization of Pay Scale below Board Level Executives of North Eastern Electric Power Corporation, Rural Electrification Corporation, National Hydroelectric Power Corporation, Tehri Hydro Development Corporation, Satluj Jal Vidyut Nigam Limited (Government of India Enterprises) w.e.f. 1st January, 1997 whereas their other counterparts i.e. National Thermal Power Corporation (NTPC), POWERGRID Corporation of India (PCI) and Power Finance Corporation Ltd. (PFC) etc. below Board Level Executives will draw higher pay scales with rate of annual increment of 4% than the petitioner's Corporation.
4. The Government of India had constituted a Committee for revision of Pay and Allowances for Executives in Public Enterprises for Board Level Posts and below Board Level Posts including non-unionised supervisors under the Chairmanship of Justice S. Mohan a Retired Judge of the Supreme Court. The Government of India, based on the recommendations of the said Committee, decided that the scale of pay attached to these Board Level Posts and below Board Level Posts would stand revised w.e.f. 1st January, 1997. Accordingly, Wage Policy/Pay Revision/ was issued vide DPE/Guidelines/IV (a)/14 annexed to the petition as Annexure-2.
5. It is stated that vide Office Memorandum No. 2 (49)/98-DPE (WC) dated 25th June, 1999, the Department of Public Enterprises, Ministry of Industry, Government of India issued WP(C) No. 185 of 2014 Page 4 of 12 instructions to all administrative Ministries/Departments of Government of India for revision of pay scales w.e.f. 1st January, 1997 to the Board Level Posts and below Board Level Posts including non-unionised supervisors in Public Enterprises. Annexure-VI of the said Memorandum, inter-alia, reads as under:
"PROCEDURES FOR APPROVAL AND ADOPTION OF NEW SCALES OF PAY ON IDA PATTERN BY PSEs
(a) PSEs which have been making profit consistently for the last 3 years viz., 1996-97, 1997-98 and 1998-99 would be allowed to adopt the scales of pay for the executives holding posts at and below the Board level and non-
unionised supervisors strictly in accordance with these guidelines.
(b) PSEs which did not make profit during the last 3 years viz., 1996-97, 1997-98 and 1998-99 or had incurred net loss during any of these financial years would also be allowed to adopt these scales of pay of their executives holding posts at and below the Board level and non-unionised supervisors with the approval of the Government i.e. the administrative Ministry acting in consultation with the DPE, provided they give an estimate as to how resources would be generated by them to meet the extra expenditure.
(c) In respect of sick enterprises referred to BIFR, revision of pay scales for all employees following IDA pattern would be strictly in accordance with the rehabilitation packages approved or to be approved by the BIFR and after providing for the additional expenditure on account of pay revision in these packages.
(d) PSEs under construction or new PSEs should submit their proposals for adoption of revised scales of pay and DA pattern for their executives holding posts at the Board level, below Board level and non-unionized supervisors, to their administrative Ministries for appropriate approval in consultation with the DPE, giving details of their likely date of going on commercial production, etc.
(e) The conditions prescribed for Sixth Wage negotiations of unionized workers in DPE‟s OM No. 2(11)/96-DPE(WC) dated 14.1.1999 shall be applicable for the above pay revision.
(f) DPE will issue detailed instructions, wherever necessary regarding the matters dealt with in the Note." WP(C) No. 185 of 2014 Page 5 of 12
6. The Chairman and Managing Director, NEEPCO was also informed vide letter dated 24th August, 1999 that the Government of India has decided the revision of Scale of Pay of the Board Level Posts and below Board Level Posts including non- unionised supervisors w.e.f. 1st January, 1997 in Public Sector Enterprises and the same be implemented in accordance with the instructions containing in the Office Memorandum dated 25th June, 1999.
7. It is also stated that the National Thermal Power Corporation (NTPC) vide order dated 6th July, 2000 revised the pay scales and allowances of its employees in the Executive Category which is below scheduled posts at the Board Level, in the regular pay scales of the Company and has adopted higher pay scales with 4% rate of increments in deviation to the Department of Public Enterprises scales.
8. The Chairman-cum-Managing Director, NEEPCO vide letter dated 20th February, 2001 enclosed the agenda notes pertaining to revision of pay, allowances/perquisites of the executives w.e.f. 1st January, 1997 for approval of the Ministry of Power, Government of India. Vide letter dated 09th May 2001, the Chairman-cum-Managing Director, NEEPCO also requested to accord approval of the revised Industrial Dearness allowance, pay package in respect of below Board level Executives of the Corporation.
9. Ministry of Power, Government of India was also requested by the Chairman-cum-Managing Director, NEEPCO vide letter dated 10th January, 2006 to allow the revised scale of pay to the NEEPCO employees w.e.f. 1st January, 1997 in the same pay WP(C) No. 185 of 2014 Page 6 of 12 scales of NTPC, PGCIL, PFC and REC. The pay scales of the said Corporations who have adopted identical scales of pay and rate of increment was also enclosed. It is further stated that in the said letter that NEEPCO will not ask for any financial support from the Government and meet the requirement from their own recourses.
10. The Government of India vide letter dated 1st September, 2006 approved the revised pay scales of Executive below Board level in NEEPCO w.e.f. 1st January, 1997. However, Ministry of Power, Government of India vide letter dated 27th December, 2013 directed the five Central Public Sector Corporations including NEEPCO to regularize the deviated pay scales adopted in respect of Board level Executives w.e.f. 1st January, 1997. The other four Corporations being Rural Electrification Corporation, National Hydro Electric Power Corporation Limited, Tehri Hydro Development Corporation Limited and Sutlej Jal Vidyut Nigam Ltd. The order dated 27th December, 2013 contained the following direction:-
(i) The deviant pay scales fixed w.e.f. 01.01.1997 shall not be regularised.
(ii) However, no recovery shall be made for the excess pay drawn from 01.01.1997 onwards considering the difficulties in effecting recovery and also considering that such a recovery may de-motivate the staff
(iii) The pay scales shall be fitted w.e.f. 01.01.2007 after correcting the aberrations in pay scales fixed w.e.f. 01.01.
1997."
11. Being aggrieved by the aforesaid Office Memorandum dated 27th December, 2013, the petitioners approached this Court by filing the present writ petition.
WP(C) No. 185 of 2014 Page 7 of 12
12. It is contended by Mr. HS Thangkhiew, learned senior counsel for the petitioners that since inception of NEEPCO, it has been following the Central Government scales of pay and consequent to the Judgment of the Supreme Court and directives issued thereon, all employees in NEEPCO appointed on or after 1st January, 1989 are deemed to have been appointed on IDA with related scales of pay. NEEPCO adopted appropriate scales of pay for its employees under IDA pattern in line with NEPC pay scales in conformity with the directives issues by Department of Public Enterprises vide Office Memorandum dated 22nd April, 1991. Thereafter, during subsequent revision of IDA scales of pay, NEEPCO had continued to adopt scales matching those of NTPC, NHPC, PGCIL.
13. It is also argued that the Ministry of Power, Government of India by the impugned Office Memorandum should not permit the pay difference between the petitioners and NTPC, PGCIL and PFC while implementing the guidelines laid down by the Department of Public Enterprises. The impugned Office Memorandum dated 27th December, 2013 did not regularize the deviant pay scales fixed w.e.f. 1st Janaury, 1997 in the case of the petitioner NEEPCO employees while regularizing the same in case of respondents such as NTPC, PGCIL, PFC etc.
14. Mr. HS Thangkhiew, learned senior counsel for the petitioners further contended that the impugned Office Memorandum is not only in contravention of Department of Public Enterprises guidelines which provide uniformity and parity in pay scales amongst all the employees of Central Public Sector WP(C) No. 185 of 2014 Page 8 of 12 Enterprises, but also in contravention of Articles 14 and 16 of the Constitution of India and liable to be set aside and quashed.
15. Respondents No. 1 & 3 have filed affidavit-in- opposition and stated that petitioner are not entitled to any relief and claimed dismissal of the writ petition.
16. I have heard learned senior counsel for the petitioners as well as learned counsel for the respondents and also perused the material on record.
17. During the course of arguments, learned senior counsel for the petitioners stated that employee of one of the affected Central Public Sector Units i.e. Tehri Hydro Development Corporation Limited (THDC), Uttarakhand had challenged the Office Memorandum dated 27th December, 2013 by filing Writ Petition before the High Court of Uttarakhand at Nanital being writ petition (SB) No. 11 of 2014, THDC Diploma Engineers Association and others versus Union of India and others. The Division Bench of the High Court of Uttarakhand at Nanital vide order dated 22nd July, 2016 allowed the said writ petition and quashed the impugned Office Memorandum dated 27th December, 2013 insofar as it relates to the respondent Corporation in the said writ petition.
18. The Division Bench of the High Court of Uttarakhand considered the rival contentions of the parties and relevant findings are reproduced hereunder:-
"15. As already noticed, by the Ministry of Law & Justice in the Draft Note, which we have adverted to, there are seven Public Sector Units dealing in the power sector coming under the Ministry of Power. The respondent Corporation is one of them. NTPC is the other. There is a definite case for the petitioner that they are doing the same work, with which we are concerned, as is being done by their counterparts in NTPC, but they WP(C) No. 185 of 2014 Page 9 of 12 are being paid differently. As already noted, the stand appears to have been that NTPC and two other Companies have been allowed to deviate from the guidelines being issued by the Department of Public Enterprises historically and they have been paying more that what is provided by the department. The other units apparently were either falling in line or they have also been, as in the case of the respondent Corporation, adopting similar pay scale as was being paid by NTPC. Following the resolution passed by the Board of Directors in its 74th Meeting, the proposal was mooted and sent to the Department of Power for allowing payments to be made in lines of the amount being paid to the employees of NTPC. Thereafter, they were served with Annexure No.16, which we have extracted by which respondent Corporation was asked to fall in line with the payments being made to NHPC. Apparently, the Board, which according to the learned counsel for the respondent Corporation is bound to follow the guidelines being issued, passed a resolution in the 129th Meeting of the Board dated 31.03.2007 and it decided also to implement the pay scales being paid in NHPC provisionally. So, according to the respondent Corporation, there are two proposals, which are actually pending.
16. The curtain has been wrung down on this controversy, as it were, by issuance of Annexure No.1 dated 27.12.2013, by which the payments, which were made in deviation, were directed not to be recovered, but at the same time, the claim for regularization was turned down.
17. We have noticed the anomaly, which is prevalent in the respondent Corporation, pointedly with reference to the employees forming part of the Executives below the Board of Directors, namely, E-1 category. They are, in fact, being paid less than what the persons in the supervisory category (S-4) are getting. The promotions are being effected from S-4 to E-1. This indeed appears to us to be an anomalous position producing heartburn and injustice. It is apparently to rectify the same that the Board was labouring to pay E- 1 pay scale, which is being paid to their counterparts in NTPC. There were two aspects to the case of the petitioner. On the one hand, DPE has issued the Guidelines dated 25.06.1999 providing for certain pay- scales; those making profits for years in question, they were free to adopt these pay scale; whereas Corporations coming under the second category have to get approval of the Government of India and also to give reasons.
18. The other aspect is that NTPC is paying to its employees in excess of the amount which is stipulated by the Department of the Public Enterprises. The result of both is that the employees in E-1 category WP(C) No. 185 of 2014 Page 10 of 12 end up getting less than the employees in S-4 category. Both NTPC and the respondent Corporation are operating under the aegis of Ministry of Power, namely, the Administrative Ministry. Equals must be treated equally, as much as unequals must not be treated equally. This great mandate of the Constitution of India, which is recognized as the basic feature of the Constitution, would lose all its meaning if indeed the claim of the petitioners is that they are doing similar work as their counterparts in NTPC are doing and are treated differently. No doubt, the argument, which is raised by the learned Asstt. Solicitor General, centers around the work „Navratna‟, an adjective added to NTPC. According to Mr. Shobhit Saharia, the respondent Corporation is a Mini Ratna and is making profits now."
19. The Division Bench of the High Court of Uttarakhand at Nanital, thus, came to the following conclusion:
"21. The aspect relating to the capacity to pay, whether they are discharging identical functions, the historical perspective of the employees in E-1 category being paid over the years at par with their counterparts in NTPC; the aspect of the persons in the lower category getting higher pay than those working in the promoted category are all aspects which do not find any reflection in the impugned order (Annexure 1). Bereft of any reason, the order, in our view does not commend itself to us as one, which would have passed muster particularly, when there is a serious challenge raised against it being in violation of Article 14 of the Constitution of India. Even proceeding on the basis of the materials in the case, as pleaded, and proceeding on the basis that the respondent Corporation did not furnish information in terms of the order dated 25.06.1999, the contention remains that in comparison with employees of NTPC, the employees, whose cause is espoused by the petitioners, are being discriminated against, does not appear to have engaged the attention of the Government of India, when it passed Annexure No.1. In this regard, we notice the Note prepared by the Ministry of Law & Justice under the very same Government, which is to the effect and substance that the inequality must be eliminated either by reducing the pay scales being paid to those working in NTPC or that the employees working in the other Corporation must receive higher pay. We would, therefore, think that the interest of justice clearly requires that the matter must be reconsidered by the Government of India. Accordingly, the writ petition is allowed in the following manner:-
Annexure No.1 will stand quashed insofar as it relates to the respondent Corporation. In order to enable it to properly consider the matter taking into WP(C) No. 185 of 2014 Page 11 of 12 consideration all relevant aspects, Annexure-16 will also stand quashed and a decision will be taken within a period of three months from the date of production of a certified copy of this judgment.
22. We make it abundantly clear that the first respondent may call for any information, which is relevant, from the second respondent and the second respondent will certainly supply such information."
20. The issue as raised in the present petition is similar to the one decided by the Division Bench of the High Court of Uttarakhand at Nanital. Keeping in view the facts and circumstances of the case, I am not inclined to take a different view from that was taken by the Division Bench of the High Court of Uttarakhand.
21. The writ petition is, therefore, allowed and the impugned Office Memorandum dated 27th December, 2013 is hereby quashed insofar as it relates to respondent No. 2 Corporation. The respondents are directed to properly consider the matter and take a decision within 3(three) months. The respondent No. 1 may call for any information, which it deems fit, from respondent No. 2 who will provide the same to the respondent No. 1.
22. No costs.
JUDGE 02nd September, 2016 V. Lyndem WP(C) No. 185 of 2014 Page 12 of 12