Himachal Pradesh High Court
Narender Kumar Thakur vs National Hydro Electric Power ... on 28 October, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 28th DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No.464 of 2012
Between:-
1. NARENDER KUMAR THAKUR,
S/O SH DAULAT RAM THAKUR,
R/O VILL. SOJHA. P.O. PALACH,
TEHSIL BANZAR, DISTRICT KULLU, H.P.
2. BANAM RAM,
S/O SHRI NARAIN SINGH,
R/O VILLAGE NELA,
P.O. DUDAR, TEHSIL SADAR,
DISTRICT MANDI, H.P.
.....PETITIONERS
(BY SH. SUNIL MOHAN GOEL, ADVOCATE)
AND
1. UNION OF INDIA
THROUGH SECRETARY,
GOVERNMENT OF INDIA,
MINISTRY OF POWER, SHRAM
SHAKTI BHAWAN, NEW DELHI.
2. NHPC LIMITED,
THROUGH ITS
CHAIRMAN-CUM-MANAGING DIRECTOR,
NHPC OFFICE COMPLEX,
SECTOR-33, FARIDABAD (UP).
3. H.P. STATE ELECTRICITY
BOARD LIMITED, THROUGH ITS
CHIEF EXECUTIVE DIRECTOR,
VIDYUT BHAWAN, SHIMLA 171004.
4. STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL SECRETARY
(MPP & POWER) TO THE GOVERNMENT
OF HIMACHAL PRADESH. SHIMLA-171002.
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2
5. GOVERNMENT OF INDIA
THROUGH SECRETARY,
MINISTRY OF HEAVY INDUSTRIES
& PUBLIC ENTERPRISES, DEPARTMENT OF
.
PUBLIC ENTERPRISES, PUBLIC
ENTERPRISES BHAWAN BLOCK NO.14,
CGO COMPLEX LODI ROAD,
NEW DELHI-110003.
.....RESPONDENTS
(SH. RAJINDER THAKUR, CENTRAL GOVERNMENT
COUNSEL FOR RESPONDENTS NO. 1 AND 5.
SH. K.D.SHREEDHAR, SENIOR ADVOCATE WITH SH.
SAURABH AHLUWALIA, ADVOCATE, FOR RESPONDENT
NO.2.
SH. KUNAL THKAUR, DEPUTY ADVOCATE GENERAL
WITH SH. SHRIYEK SHARDA, SENIOR ASSISTANT
ADVOCATE GENERAL AND SH. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENEAL, FOR RESPONDENT
NO. 4.
________________________________________________________________
This petition coming on for hearing this day, the
Court passed the following:
JUDGMENT
Petitioners claimed following reliefs in this writ petition.:-
"a) This Hon'ble Court may be pleased to issue writ of certiorari quashing Annexure P 9 circular dated 1.10.2009 issued by Respondent No.2 Corporation by holding that DPE guidelines issued by Respondent no.5 dated 26.11.2008 are not applicable to the petitioners. This Hon'ble Court may also be pleased to quash communication dated 232.07.2011 Annexure P 12 to the extent that extension being granted to deputationists like ::: Downloaded on - 31/01/2022 23:14:12 :::CIS 3 petitioners is being granted as per DPE guidelines dated 26.11.2008.
(b) Tat this Hon'ble Court may kindly be pleased to issue writ of mandamus directing respondent No.2 Corporation to .
grant extension in deputation to petitioner No.1 with respondent No.2 on same terms and conditions on which he was initially taken on deputation by Respondent No.2 Corporation.
(c ) That this Hon'ble Court may be pleased to issue a writ of mandamus directing Respondent No.2 Corporation to pay to the petitioner allowances as were being paid to them till February 2010 from March 2010 onwards and also to refund back to the petitioner No.1 the recovery of allowances so made by respondent No.2 Corporation."
During hearing of the case, learned counsel for the petitioners stated that due to subsequent events i.e. repatriation of the petitioners from deputation with respondent No.1 to their parent department and their retirement, prayers number (a) and
(b) have become infrucutous. The arguments were advanced by the learned counsel for the parties only with respect to prayer No.
(c).
2. In respect to relief No. (c), contention of learned counsel for the petitioners is that the matter in that regard is covered by the judgment passed by a Co-ordinate Bench of this Court on 26.02.2013 in CWP No. 3368 of 2010, Raj Kumar and others Versus National Hydro Electric Power Corporation Limited and others as well as by another judgment rendered by ::: Downloaded on - 31/01/2022 23:14:12 :::CIS 4 this Court on 22.10.2019 in CWP No.3658 of 2014, titled as Harish Kapoor Versus NHPC & ors. .
3. It is not in dispute that both the petitioners were .
serving on deputation with respondent No.1. The deputation period of petitioner No.1 ended on 10.05.2008 and that of petitioner No.2 on 11.05.2008. However, even after expiry of the deputation period, both the petitioners were allowed by respondent No.1 to serve in respondent-Corporation. The 30.04.2010 and r21.12.2010, petitioners were finally repatriated to their parent department on respectively.
allowances being paid to them by respondent No.1 during the The perks and period of their deputation service in the respondent-Corporation, were not paid to the petitioners, with effect from, 26.11.2008 till their repatriation on the basis of an office memorandum dated 26.11.2008. Some of the perks and allowances paid to the petitioners during this period were recovered from them in view of office memorandum dated 26.11.2008.
4. Office memorandum dated 26.11.2008 has been considered by a Co-ordinate Bench of this Court in Raj Kumar's case (supra), paras 2 and 3 of the judgment being relevant, are extracted as under:-
"2. On the plain reading of the above Clause 2(a) of Circular dated 1.10.2009, Annexure P.6, it is abundantly clear that the Government Officers such as the petitioners, who were already on deputation with COSE's as on ::: Downloaded on - 31/01/2022 23:14:12 :::CIS 5 26.11.20008, (the date of issue of Office Memorandum dated 26th November, 2008, Annexure R.2) were to continue to avail of the option already available and exercised by them till the end of their deputation tenure .
subject to the condition that the extension, if any, given after 26.11.2008, would not qualify for this dispensation. Indisputably, petitioner No.1, Sh. Raj Kumar and petitioner No.2 Sh. Mehar Chand, were already on disputation as on 26.11.2008 and were relieved only on 31.12.2011 and 6.3.2012, respectively, and that too in terms of order dated 17.10.2011, passed by this Court in this matter, which is extracted below for ready reference:-
"Petitioners are at liberty to make rrepresentation to N.H.P.C., if they want to go back and do not remain in the present department on deputation in view of the circular issued in regard to their allowances. They may make such representations within a period of six weeks and the respondents shall take steps to relieve them in case they are not ready to remain in the parent department and such representation shall be decided by the N.H.P.C. at the earliest. The representation, if made within a period of six weeks, the same shall be decided by the respondents within a period of two months thereafter and put up the petition for hearing after winter vacations."
3. Thus, in terms of Clause 2(a) of Circular dated 1.10.2009, Annexure P.6, the petitioners No.1 and 2 were entitled for allowances and perks being received by them from time to time uptill 26.11.2008 and thereafter till their repatriation on 31.12.2011 and 6.3.2012, respectively."
::: Downloaded on - 31/01/2022 23:14:12 :::CIS 6On the basis of above interpretation, Raj Kumar's case (Supra) was allowed on 26.02.2013. The recoveries effected from the petitioners therein were quashed with a direction to the .
respondent to refund the said sums to the petitioners. The petitioners therein were also held entitled for payment on difference of allowances and perks for the period, for which the same were reduced to their determent till their to the parent department.
5. The same issue was again considered in CWP No.3658 of 2014, Harish Kapoor Vs NHPC and others. On consideration of the matter including the judgment passed in Raj Kumar's case (supra), it was noticed that "It is not in dispute that the judgment extracted above has attained finality. As per the stand taken by NHPC, the judgment has been implemented by NHPC not only in case of the petitioners therein, but also in the case of the present petitioner. The judgment was to the effect that notwithstanding office memorandum dated 26.11.2008, Government employees on deputation with NHPC were to get the benefits of scale and allowances in terms of the options already availed by them at the time of their deputation in accordance with Annexure P-2 till the end of their deputation."
In respect to the claims of the Productivity Linked Group Insurance (PLGI) and ex-gratia/Bonus, following was observed in the judgment:-
::: Downloaded on - 31/01/2022 23:14:12 :::CIS 7"3(i) Productivity Linked Group Insurance (PLGI) & Ex gratia/Bonus:
Petitioner claims this allowance w.e.f. 26.11.2008 to 8.3.2010 by relying upon Clause (iii) of Annexure-IV .
attached to the office memorandum dated 26.11.2008.
As already observed earlier, this clause is not applicable to the case of the petitioner. Petitioner's case is governed by Clause (iv) of Annexure-IV, which pertains to pay etc. of Government Officers on deputation with NHPC. As per Clause (iv), Government Officers on deputation with NHPC were to draw the salary as per their entitlement in the parent department and only those who came in NHPC on permanent absorption basis were to get the NHPC scales/perks/benefits. As observed earlier, this clause was further clarified in Circular dated 1.10.2009 (Annexure P-7). This, read with judgment passed in CWP No.3368/2010, allowed the benefit of scales etc. as per options availed by the deputed employees/Government employees at the time of deputation. It is not the case of respondent No.1 that PLGI and Ex gratia/Bonus was not admissible to the petitioner in terms of his option, exercised as per Annexure P-2. Office memorandum dated 26.11.2008 was to the detriment of the employees of State Government, who were sent on deputation to NHPC, inasmuch as it sought to change the terms and conditions opted by the deputed employees in matters of scales/perks/benefits. Clause (iv) of Annexure-IV attached to office memorandum dated 26.11.2008, restricted the grant of NHPC scales only to those, who came in NHPC on permanent absorption basis. Those, who came in NHPC on deputation (not on permanent absorption basis) were to draw the salary as per their parent department. This was clear departure from the terms and condition contained in Annexure P-2, whereunder the deputed employees were allowed to ::: Downloaded on - 31/01/2022 23:14:12 :::CIS 8 exercise the options to get salary/scales/allowances as per NHPC scales and allowances. This was further clarified by circular dated 1.10.2009 that the employees on deputation with NHPC as on 26.11.2008 would .
continue to avail the options exercised by them till the end of their deputation tenure. This was held to be so in CWP No.3368/2010. Therefore, in my considered view PLGI and ex gratia/bonus has to be allowed to the petitioner till his date of repatriation i.e. 8.3.2010. Mr. K.D. Shridhar, learned Senior Advocate, for respondent No.1, contended that the deputation tenure of the petitioner had expired on 14.10.2007. Therefore, he was not entitled even to the benefit of Clause-2(a) of Circular dated 1.10.2009 read with judgment in CWP No.3368/2010. Learned senior counsel further submitted that no formal extension was granted to the petitioner after completion of his deputation tenure. Be that as it may, it is an admitted fact that the petitioner even after expiry of his deputation tenure on 14.10.2007 continued to serve NHPC till his repatriation to parent department on 8.3.2010. It is not the case of NHPC, that petitioner served despite their unwillingness or that NHPC repatriated the petitioner prior to 8.3.2010. As per reply filed by NHPC, PLGI & Ex gratia was paid to the petitioner till 31.3.2009. Once this allowance has been paid to the petitioner till 31.3.2009, there is absolutely no justification for not paying it till his repatriation on 8.3.2010. Petitioner is accordingly held entitled to PLGI & Ex gratia w.e.f. 1.4.2009 to 8.3.2010."
It is admitted position of the parties that the aforementioned judgments have attained finality and have been implemented by the respondent-Corporation. The case of the present petitioners in respect to their entitlement to the perks and ::: Downloaded on - 31/01/2022 23:14:12 :::CIS 9 allowances, with effect from 26.11.2008 till the date of their repatriation to their parent department is squarely covered in terms of the aforementioned two judgments. Accordingly, the .
petitioners are also held entitled to the perks and allowances in terms of the above two judgments, including Productivity Linked Group Insurance (PLGI) and ex-gratia/Bonus, with effect from, 26.11.2008 till the date of their repatriation to their parent department. The same be released in favour of the petitioners within a period of six weeks from today.
allowed and disposed of in the above terms.
r The writ petition is
Jyotsna Rewal Dua
Judge
October 28, 2021
R.Atal
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