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 Page 2 of 59 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 Page 3 of 59 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, Page 4 of 59 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 Page 5 of 59 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 Page 6 of 59
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 Page 7 of 59 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 Page 8 of 59 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.Page 9 of 59
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 Page 10 of 59 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 Page 11 of 59 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 Page 12 of 59 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 Page 13 of 59 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 Page 14 of 59 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 Page 15 of 59 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 Page 16 of 59 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 Page 17 of 59 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 Page 18 of 59 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 Page 19 of 59 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 Page 20 of 59 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 Page 21 of 59 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 Page 22 of 59 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?Page 23 of 59
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 Page 24 of 59 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 Page 25 of 59 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 Page 26 of 59 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 Page 27 of 59 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. Page 28 of 59 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 Page 29 of 59 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 Page 30 of 59 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
Page 31 of 59
Medical Allowance 230 204 Reimbursable Reimbursable
Conveyance Allowance 100 100
Thermal Allowance 240 240 - -
Factory Compensatory - - 563 386
Allowance
Special Pay - - - 206
Generation Incentive - - 1447.63 1020.58
Quarterly Incentive - - 1709.38 1205.10
Trans. Sub - - 445 245
Lunch. Sub - - 483 483
LIT Reimb - - 80 80
Wash Reimb - - 136 136
Total 12,919.00 11,468.00 21,922.01 15,231.68
Retd. Age 58 58 60 60
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 Page 32 of 59 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.
Page 33 of 59
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 Page 34 of 59 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.
Page 35 of 59
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 1 (1997) 10 SCC 741 2 (1985) 1 SCC 523 3 (1997) 7 SCC 334 Page 36 of 59 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 Page 37 of 59 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
9370
Basic Pay 5990 2150 5220 1850
DA Nil 2688 Nil 2313
Total 5990 4838 5220 4163
Page 38 of 59
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 Page 39 of 59 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 Page 40 of 59 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 Page 41 of 59 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.
Page 42 of 59
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 Page 43 of 59 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 4 (1986) 3 SCC 156 Page 44 of 59 "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 Page 45 of 59 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-
5 (2004) 2 SCC 663 Page 46 of 59 "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 6 (2013) 2 SCC 516 Page 47 of 59 228 : 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. Page 48 of 59
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 Page 49 of 59 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 Page 50 of 59 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."Page 51 of 59
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 Page 52 of 59 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 Page 53 of 59 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.
Page 54 of 59 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 Page 55 of 59 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 Page 56 of 59 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:
Misc. Case No.7621/2007
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 Page 57 of 59 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 benefits, if any, resulting in the petitioners being involved in protracted litigation extending for more than two decades, Page 58 of 59 shall also be liable to pay interest calculated at the rate of 7.5% per annum on the arrears till the date of actual payment.
CONCLUSION
62. In the result, the writ applications are allowed. The impugned orders i.e., office order dated 03.12.2004 (Annexure-4 of W.P.(C) No. 3217 of 2006 and Annexure-5 of W.P.(C) No.11200 of 2005) and order dated 25/23.05.2005 (Annexure-8 of W.P.(C) No. 3217 of 2006) are hereby quashed. NTPC management is directed to re-calculate the dues of the petitioners in terms of the observations made and illustration given in the preceding paragraph and to disburse the same in their favour along with interest so also pensionary benefits at par with their counterparts in the administrative side as early as possible, preferably within a period of three months from the date of this judgment. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA
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Designation: Personal Assistant Sashikanta Mishra, Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Judge Date: 25-Feb-2025 12:37:38 Orissa High Court, Cuttack, The 21st February, 2025/`A.K. Rana, P.A. Page 59 of 59