Karnataka High Court
Nuclear Power Corporation Of India ... vs Appellate Authority on 7 December, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 103936 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 103936 OF 2022 (L-RES)
BETWEEN:
1. NUCLEAR POWER CORPORATION OF INDIA LIMITED
(A GOVERNMENT OF INDIA UNDERTAKING)
KAIGA GENERATING STATION,
FIRST FLOOR, ADMINISTRATIVE BUILDING,
KAIGA PLANT SITE,
P.O. KAIGA-581400
UTTARA KANNADA DISTRICT
BY ITS DEPUTY GENERAL MANAGER (H.R)
SRI. AJAI THOMAS
...PETITIONER
(BY SRI. J S SHETTY ASSOCIATES.,ADVOCATE)
AND:
1. APPELLATE AUTHORITY
UNDER THE INDUSTRIAL EMPLOYMENT
(STANDING ORDERS) ACT AND
DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),
SHRAM SADAN, III CROSS, III MAIN,
YESHAVANTHPUR INDUSTRIAL SUBURB
III STAGE, TUMKUR ROAD,
BENGALURU-560022
2. CERTIFYING OFFICER,
UNDER THE INDUSTRIAL EMPLOYMENT
(STANDING ORDERS) ACT 1946,
SHRAM SADAN, III CROSS, III MAIN,
YESHAVANTHPUR INDUSTRIAL SUBURB
III STAGE, TUMKUR ROAD,
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WP No. 103936 of 2022
BENGALURU-560022
3. KAIGA PROJECT EMPLOYEES ASSOCIATION
KAIGA GENERATION CENTRE,
KAIGA-1-4, KAIGA,
UTTARA KANNADA DISTRICT
BY ITS RESIDENT SUMANTH HEBLEKAR
4. GENERAL SECRETAR,
KAIGA PROJECT EMPLOYEES ASSOCIATION,
KAIGA GENERATION CENTRE, KAIGA 1-4,
KAIGA, UTTAR KANNADA DISTREICT-581 400.
5.
SRI. H. B. VIJAYA KUMAR,
JOINT SECRETARY,
KAIGA PROJECT EMPLOYEES ASSOCIATION,
KAIGA GENERATION CENTRE,
KAIGA-1-4, KAIGA,
UTTARA KANNADA DISTRICT
BY ITS RESIDENT SUMANTH HEBLEKAR
6. SRI. RAJU R. NAIK
EXECUTIVE MEMBER,
KAIGA PROJECT EMPLOYEES ASSOCIATION,
KAIGA GENERATION CENTRE,
KAIGA-1-4, KAIGA,
UTTARA KANNADA DISTRICT
...RESPONDENTS
(BY SRI.S.S.BALLOLI, ADV., FOR R1 AND R2;
SRI.SANTOSH B MALLIGWAD, ADV., FOR R3-R6)
THIS WP IS FILED PRAYING TO A) ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT OR DIRECTION IN THE NATURE
OF WRIT TO QUASH THE ORDER DATED 3.3.2022 PASSED BY THE
SECOND RESPONDENT IN FILE NO. 51(1) 2018/B2, THE COPY OF
WHICH HAS BEEN PRODUCED HEREWITH AND MARKED AS
ANNEXURE-A AND ALSO THE ORDER DATED 12.09.2022 PASSED BY
THE FIRST RESPONDENT IN FILE NO. 51(1) 2022/B1 THE COPY OF
WHICH HAS BEEN PRODUCED HEREWITH AND MARKED AS
ANNEXURE-B
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WP No. 103936 of 2022
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Petitioner is the Government of India Enterprise established under the provisions of Atomic Energy Act, 1962, functioning under the administrative control of energy Act, 1962 and under the administrative control of Department of Atomic Energy. The standing orders in respect of the Kaiga Generating Station, Kaiga, Uttar Kannada district has been certified by the certifying officer under sub Section (2) of Section 5 of the Industrial Employments (Standing Orders Act, 1946) with effect from 30/8/2011.
2. Clause 10 of the said standing orders deals with attendance and late coming of the employees and clause 10.2 of the standing orders reads as under:
10.2 Every workman shall be present at specified time and at his work place. Workman attending late shall be liable to deduction of wages provided for in the payment of wages Act, 1936. A grace period of 15 minutes may be permitted. However, the Competent Authority may be permitted. However, the Competent Authority may condone late -4- WP No. 103936 of 2022 attendance upto one hour for three occasion in a month.
3. The respondents-employees' Association submitted a representation with the 2nd respondent to modify the standing orders contained clause 10.2 of the standing orders. The 2nd respondent by order dated 3/3/2022 modified the clause 10.2, which reads thus:
10.2 Every workman shall be present at specified time and at his work place. Workman attending late shall be liable to deduction of wages provided for in the payment of Wages Act, 1936. A grace period of 15 minutes should be permitted. However, the Competent Authority must condone late attendance upto 1.5 hours for three occasions, thereby making
4.5 hours in a month.
Against certified/modified clause, the petitioner filed an appeal before the 1st respondent and 1st respondent by order dated 12/9/2022 dismissed the appeal confirming the certified/modified clause 10.2, against which the present petition is filed.
4. The learned counsel appearing for the petitioner submits that certified/modified clause 10.2 provides for mandatorily condoning delay of 1.5 hours for three occasions every month, -5- WP No. 103936 of 2022 which is contrary and discriminatory since the petitioner has to mandatorily condone the delay even though if sufficient cause is not shown for the late attendance. He further submits that the modification of the impugned clause extending the late attendance from 1 hour to 1.5 hours without assigning any reason is not valid since there is no changed circumstances warranting extending the late attendance from 1 hour to 1.5 hours.
5. On other hand, learned counsel for the respondent employees' association would submit that the 2nd respondent taking into account the changed circumstances and also having regard to the fact that the workers have to pass through difficult terrain to reach the place of work and distance of the power plant, has rightly certified/modified the clause 10.2 of the standing orders. He further submits that the impugned order passed by the 2nd respondent in the absence of perversity, patent illegality, irrationality, want of power to take decisions and procedural irregularity cannot interfere in exercise of power under Article 227 of the Constitution of India. In the absence of any such grounds, the present petition is not maintainable and -6- WP No. 103936 of 2022 the same is devoid of merits. In support of his submissions, he places reliance on the decision of the Hon'ble Apex in the case of Sarvepalli Ramaiah (Dead) as per Legal Representatives and others V/s. District Collector, Chittoor District and others reported in (2019) 4 SCC 500.
6. I have considered the submissions made by the learned counsel for the petitioner and the learned counsel for the respondents.
7. The points that would arise for consideration in this writ petition are:
i) Whether the 2nd respondent is justified in passing the modifying clause 10.2 of the standing orders mandatorily requiring the Petitioner to condone the delay of 1.5 hours?
ii) Whether the 2nd respondent is justified in extending the late attendance from 1 hours to 1.5 hours on three occasion in a month?
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8. Regarding Point No.1:- Perusal of the modified clause 10.2indicates that the petitioner has to mandatorily condone the delay in late attendance by 1.5 hours on three occasion in a month, which implies that the petitioner has to condone the delay though sufficient clause is not shown by the employees in attending duty late by 1.5 hours on three occasion in a month. The modified clause 10.2 of the standing orders thus gives unbridled rights to the employee in attending duty late by 1.5 hours on three occasions in a month without showing any sufficient clause, which is per se contrary and discriminatory, thus depriving the petitioner-management to condone the delay only if sufficient clause is shown and also depriving the management to put a check on the late attendance of employees unnecessarily . Hence, word 'must' shall be read as 'may' thus giving a right to the petitioner to condone the delay only if sufficient cause is made out by the employees in attending the duties late by 1.5 hours on three occasions in a month. It is needless to state that if sufficient cause is shown, the petitioner shall consider the same before passing any appropriate order. -8- WP No. 103936 of 2022
9. Regarding Point No.2:- Original clause initially provided that the competent authority may condone late attendance upto 1 hour for three occasions in a month and the same extended by 1.5 hours under the modified clause . The 2nd respondent in extending the delay in attending the duties from 1 hour to 1.5 hours has assigned the following reasons:
The transport facility were provided by our Organization NPCIL to Pariwar members right from the date of its inception since the nature NPCIL business is specifically different from other sectors of industries and thus out Townships are constructed way far out from our working place. This span Township to working place varies from Site to site. In Kaiga it is the lengthiest span from Township to Site comparing to any other sites and out hard working workmen have to spare some 25 to 30 minutes extra time in travelling from residential place to their work place than any other workmen working in NPCIL across India. The up and down extra travelling almost constitutes to an hour of hectic travel consisting of more than 100 odd turns up and down with the Kali river water at one side below and the deep jungle terrain on the other side of the road. Comparing to other sites out KGS pariwar members live in an isolated area where transport facility are mere. Really speaking The Corporate -9- WP No. 103936 of 2022 Management should have a courteous look on these Kaiga brotherhood and should have relaxed the rules and make flexibility in the TAMS. There are no proper market, good Hospitals, entertainment, cinema halls etc in the near vicinity to our township and hence after a tiresome work if any individual wants to cater any of these service to his family he has to travel/cross this 40-45 minutes hectic cross country road leaving them less time to reach nearby towns or cities and after reaching all in vain. The distance from Residential place to working place may be justified at other sites, but in case of NPCIL Kaiga site, the distance is 22kms on one side which is more than double compared other sites. The road is so hectic with more than 100 odd turns in a very hostile state surrounded with dense forest and moreover this terrain is showered with heaviest rains for almost six months. The travel here is almost alike the mighty Himalayan rally which consumes a lot of time. In the recent recoveries of TAMS (time attendance Management System) of the difference in Timings of Late coming and early going at NPCIL, KGS 1-4, Kaiga site, The officers sector of employees were provided extra time for regularizing their TAMS by extra working and compensating the difference in Late coming and early going, leaving behind the hard working workmen with recoveries and no proper time for clearing their TAMS. In fact recoveries were made for the period of work done, shift off, annual
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medical, On Duties etc. In the recent days the site Conveyance allowance is replaced by transport allowance without serving 9(A) Notice on change of Service conditions and leaving no time for workmen to think and opt on whether to choose transport or transport allowance, if in future if the workmen exercises his right and opts for transport allowance then the workmen will really find it difficult to reach the workplace. As said earlier, compared to other sites the span from Kaiga township to site and back is the lengthiest with worst climatic and geographic conditions and the said clause needs to be amended.
10. The 2nd respondent in exercise of his quasi judicial power has assigned valid and cogent reasons and in the absence of perversity or procedural irregularity, I do not find any illegality in the impugned order passed by the 2nd respondent in extending the late attendance from 1 hour to 1.5 hours.
11. In view of the preceding analysis, I am of the view that the impugned order insofar it relates to mandatorily the Petitioner to condone delay of late attendance by 1.5 hours on three occasions in a month is arbitrary and discriminatory and the same to be read as 'may' thus giving power to the petitioner to condone the delay only if sufficient cause is made out by the
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employees in attending the duties late by 1.5 hours on three occasions in a month. Accordingly, I pass the following:
ORDER
i) The writ petition is allowed in part.
ii) The impugned order certified/modified clause 10.2 of the standing orders insofar as it relates to the term 'must' to be read as 'may', and it is held that the Petitioner shall condone the delay only if sufficient cause is made out by the employees for the late attendance.
Sd/-
JUDGE VB List No.: 1 Sl No.: 44