Gujarat High Court
Nuclear Power Corporation Of India Ltd vs Kakrapar Anumathak Karmachari ... on 4 April, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/8502/2003 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8502 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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NUCLEAR POWER CORPORATION OF INDIA LTD.....Petitioner(s)
Versus
KAKRAPAR ANUMATHAK KARMACHARI SANGATHAN....Respondent(s)
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Appearance:
MR JD AJMERA, ADVOCATE for the Petitioner(s) No. 1
(MR HJ NANAVATI), ADVOCATE for the Respondent(s) No. 1
MR TR MISHRA, ADVOCATE for the Respondent(s) No. 1
MR UT MISHRA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 04/04/2014
CAV JUDGMENT
The petitionerNuclear Power Corporation of India Ltd., by filing the present petition, has prayed to quash and set aside judgment and award dated 9th April, Page 1 of 20 C/SCA/8502/2003 CAV JUDGMENT 2003 passed by the Industrial Tribunal, Surat in Reference(I.T.C.)No. 32 of 1999.
1.1 By the impugned judgment and award, the Industrial Tribunal allowed the Reference of Kakrapar Anumathak Karmachari Sangathanthe Union and held that the action on part of first partythe Nuclear Power Corporation of India Ltd., Kakrapar in withdrawing different concessions/allowances being given to the workmen, was not legal. The concessions were (i) Subsidy beyond free electricity limits, (ii) License fee, (iii) Compensatory allowance, (iv) CSSL contribution, (v) Bicycle allowance, and (vi) Free water supply and service charge rates. It was further declared by the Tribunal that circulars dated 30th November, 1998 and 15th March, 1999 issued in that regard would not be implemented. The Tribunal directed the first partythe petitioner herein to continue to avail all the said allowances/concessions to the workmen. Rs.2000/ was awarded as costs.
2. At the threshold, it may be stated that in view of subsequent developments having taken place after the impugned judgment and award during the pendency of the present petition, the area of dispute has narrowed down and now, it stands only in respect of the concession of free electricity units.
2.1 Before the adverting to the said only surviving relevant aspect, however, the relevant facts in the background may be outlined in order to comprehend the controversy properly.
Page 2 of 20 C/SCA/8502/2003 CAV JUDGMENT3. The Government of India, Department of Atomic Energy, by Office Memorandum dated 16.11.1974, decided to withdraw what was called the Project Allowance given to the employees/workmen working at its different Atomic Power Projects. For making good loss to the workmen due to withdrawal of project allowance and to alleviate their hardships, other concessions, such as reduction in license fee or accommodation, reduction in CSSL contribution, concession in electricity supply, charges and concession in charges of electricity supply and water supply etc. were however introduced. In the year 1987, the Government of India decided to establish the Nuclear Power Corporation of India Ltd. which was setup as a Public Limited Company functioning under the Department of Atomic Energy. By Office Memorandum dated 04.09.1987, the Government of India effected an en masse transfer of its personnel to the Nuclear Power Corporation. The said Office Memorandum on record of the petition along with its AnnexureI also mentioned the terms and conditions of service for the workmen transferred to the petitionerCorporation. Item15 was related to concessions, such as supply of electricity etc. and it was stated that the said benefit would be given as per the existing orders of the Department of Atomic Energy.
3.1 In the year 1978, the Department of Atomic Energy reviewed the concessions granted under the abovesaid Office Memorandum dated 16.11.1974 and various Project Concessions came to be modified. With regard to free electricity units, it was provided that thenceforth, Page 3 of 20 C/SCA/8502/2003 CAV JUDGMENT there would be no subsidy beyond free units of electricity, and the domestic rate prevalent would be charged for the excess consumption over and above the free units from the respective categories of the employees. The revised slabs of payrange and corresponding free units to be granted was indicated. The petitionerCorporation thereafter reviewed the Project Concessions being granted to its employees/workmen pursuant to Office Memorandum of 1974 as above. It issued order dated 10.02.1999 to give out its decision to withdraw six different Project Concessions mentioned above. It was stated that the said withdrawal of different concessions was in line with the decision of the Department of Atomic Energy. It was provided to issue notices to the workmen under section 9A of the Industrial Disputes Act, 1947, before implementing the said orders.
3.2 Thereafter, the workmen of the petitioner Corporation at Kakrapar, Anumala Township, Vyara, District:Surat, raised industrial dispute in respect of the aforesaid withdrawal of concessions. In the Statement of Claim before the Industrial Tribunal, it was the case of the Union that all the workmen were under the Nuclear Power Corporation which was a separate legal entity; and the Corporation was different from the Department of Atomic Energy. It was stated that by virtue of letter dated 15.07.1994, it was clarified that they would receive all future benefits as per the decision of the Board of Directors of the Corporation. It was stated that the Corporation had not taken any decision to withdraw the various Page 4 of 20 C/SCA/8502/2003 CAV JUDGMENT allowances and that the same could not have been withdrawn on the basis of decision or order of the Department of Atomic Energy. It was stated that the Corporation was a huge profit making entity; the Project Allowances under the various heads were duly availed to the employees; and the workmen, who were discharging duties, staying in the township of the Corporation which was situated in the backward tribal area where infrastructure facilities like hospitals, educational institutions etc. were at far distance and all other basic amenities needed for daytoday life were also minimal. With such case, they prayed for declaring the aforementioned circulars dated 30.11.1998 and 15.03.1999 whereunder, project concessions were withdrawn.
3.3 In the Written Statement filed by the petitioner Corporation, it was submitted that the circulars withdrawing the Project Concessions were a policy decision taken by the Department of Atomic Energy, Government of India with a view to rationalize the concession structure. It was contended that the withdrawal of allowances was not unreasonable. It was submitted that the Department of Atomic Energy was an administrative Ministry of Nuclear Power Corporation of India Ltd. It was submitted that the basic facilities relating to education, transportation, hospitals and market for daytoday use, commodities of vegetables etc. were conveniently available at and near Anumala Township. It was further submitted that it was not possible to extend any Project Concessions beyond prescribed limits due to extra financial burden Page 5 of 20 C/SCA/8502/2003 CAV JUDGMENT on the Government.
3.4 In the Memorandum of Petition, in addition to defence raised before the Industrial Tribunal, it was contended that the decision to withdraw the Concessions was a policy decision taken by the Department of Atomic Energy to rationalize structure of granting of concessions and allowances and that the Industrial Tribunal could not have sit in Appeal over the said policy decision and the impugned Award amounted to interference in the policy decision. It was further stated that the very issue was agitated by the workers of Heavy Water Project, Karmachari Sangathan before the Central Administrative Tribunal, Jodhpur, which, by judgment and order dated 05.10.1999, held that the decision of the Government of India on withdrawal of concessions was legal and valid. It was further submitted that the petition filed against the said decision of the Central Administrative Tribunal before the Rajasthan High Court was also dismissed. It was contended that in the circumstances, the Industrial Tribunal ought not to have passed the impugned judgment and award.
4. The subsequent developments and the decisions taken in the subject matter of dispute were pointed out in the further affidavit dated 18.08.2010 filed on behalf of the petitionerCorporation. The relevant parts from the aforesaid further affidavit have been extracted hereinbelow: "I humbly state and submit that during the year 2006, the petitionerNCPIL has taken a policy decision with Page 6 of 20 C/SCA/8502/2003 CAV JUDGMENT a view to make its sites more attractive so that the employees willingly take up posting at the sites and continue to work at sites without seeking to get posted out, to pay compensatory allowance, known as, "Site Location Allowance (SLA)" to the employees..."
"...Accordingly, sanction has been granted vide order dated 3rd October 2006, for payment of Site Location Allowance at the rate of 10% of basic pay and dearness allowance, with effect from 1st October 2006...".
"...Grant of Site Location Allowance shall be subject to the following conditions:
(i) Normal terms and conditions regulating payment of pay and allowance will govern the payment of Site Location Allowance also.
(ii) The Site Location Allowance replaces the Construction Allowance in the construction projects and therefore, Construction Allowance will not be payable in future in the construction projects of petitionerNPCIL.
Consequently, the project concessions presently granted, on the withdrawal of construction allowance, namely, free units of electricity ranging from 30 to 75 units and bus service for school excursions on nominal charges, will also not be admissible. However, with regard to the free units of electricity ranging from 30 to 75 units, it has been decided that the status quo will be maintained until the issue separately reviewed and a decision on the matter is taken.
Page 7 of 20 C/SCA/8502/2003 CAV JUDGMENT(iii)Cash value of the following concessions wherever availed will be deducted from the Site Location Allowance granted and only the net amount will be paid.
(a) Subsidy in the rate of electricity consumed over and above the free units ranging from 30 to 75 units.
(b) Concession availed in the rate of license free for residential.
(c) Compensatory Allowance.
(d) Free water supply and conservancy charges.
(e) Further, the Tribal Area Allowance wherever
will also be deducted from the Site Location Allowance and only the net amount will be paid."
"...It is respectfully submitted that as agreement even from the units ranging from 30 to 75 is given. Beyond that the petitioner has agreed to charge electricity concessions at the rate of 70 paisa per unit till judgment is rendered by this Hon'ble Court in this Special Civil Application in that behalf. It is further provided that with regard to regulation of Tribal Area Allowance for the period from 01.04.2001 to 30.09.2006, decision of the Ministry of Labour, New Delhi is awaited. It is submitted that the Ministry of Labour has not decided the issue regarding the payment made to the members of the Union and other staff members from 01.04.2001 to Page 8 of 20 C/SCA/8502/2003 CAV JUDGMENT 30.09.2006. Thereafter, the petitioner had issued notice to recover the Tribal Area Allowance paid to them for the aforesaid period. The respondentunion has challenged the said recovery by filing Special Civil Application No.28416 of 2007 and the Hon'ble High Court of Gujarat has been pleased to stay recovery pending the said Special Civil Application. It may be stated that the parties will be governed by the said issue by judgment and order that may be passed in the said Special Civil Application."
4.1 Thus, in the year 2006, it was decided to introduce Site Location Allowance and because of that, other concessions were sought to be withdrawn. The order of the petitionerNuclear Corporation of India Limited dated 03.10.2006 regarding Grant of Site Location Allowance was as under: "Sub : Grant of Site Location Allowance Presently NPCIL employees borne on the roll of Corporation Projects are eligible to be granted a Construction Allowance ranging from Rs.150/ per month Rs.750/ per month, depending upon the pay range in which the employee is placed. The Construction Allowance is meant to compensate the employees for lack of amenities and infrastructures facilities at the Construction Site during the initial construction stage. Commensurate with the establishment of amenities and facilities such as residential quarters, medical dispensary educational facilities, schooling and marketing facilities etc. the Construction Allowance is progressively reduced and is finally discontinued once the amenities and Page 9 of 20 C/SCA/8502/2003 CAV JUDGMENT facilities are established/developed. The employees located in Operating stations and/are developed sites are not eligible for the Construction Allowance.
2. With a view to make site more attractive so that employees willingly take up posting at site and continue to work at sites without seeking to get posted out, the question of granting Construction Allowance called "Site Location Allowance" to the employee on the rolls of Construction Projects and Operating Stations of NPCIL has been under consideration for quite some time. After considering a proposal on this regard, the Board of Directors has accorded approval for payment of Site Location Allowance to the employees borne on the rolls of Construction Projects and Operating Stations. Accordingly sanction is hereby conveyed for payment of Site Location Allowance at the rate of 10% (Ten per cent only) of Basic Pay plus Dearness pay to the employees borne on the rolls of KAPS with effect from 01.10.2006. The grant of Site Location Allowance shall be subject to the following conditions:
(a) The normal terms and condition regulating payment of pay and allowance will govern the payment of Site Location Allowance also.
(b) The Site Location Allowance replaces the Construction Allowance in the Construction Projects and therefore Construction Allowance will not be payable in future in the Construction Projects of petitionerNPCIL.
Page 10 of 20 C/SCA/8502/2003 CAV JUDGMENTConsequently the project concession presently granted, on the withdrawal of Construction Allowance, namely, free units of electricity ranging from 30 Units to 75 Units and bus service for school excursions on nominal charges, will not also be admissible. However, with regard to the free units of electricity ranging from 30 units to 75 units, it has been decided that the status quo will be maintained until the issue separately reviewed and a decision on the matter is taken.
(c) Cash value of the following concessions wherever availed will be deducted from the Site Location Allowance granted and only the net amount will be paid: a. Subsidy in the rate of electricity consumed over and above the free units ranging from 30 units to 75 units.
b. Concession availed in the rate of License free for residential.
c. Compensatory Allowance.
d. Free water supply and conservancy charges.
(d) Further, the Tribal Area Allowance wherever
drawn will also be deducted from the Site Location Allowance and only the net amount will be paid."
4.2 It appears that as far as discontinuance of different concessions was concerned, the respondent Union of the petitionerCorporation negotiated and settled the dispute except with regard to free Page 11 of 20 C/SCA/8502/2003 CAV JUDGMENT electricity concession, for which, no agreement was reached.
4.3 In the letter dated 04.01.2007 addressed by Kakrapar Anumathak Karmachari Sangathan to the Chairman and Managing Director of the petitioner Corporation, what was agreed, was as under: "(1) Electricity concessions @ 0.70 per unit (70 paise) will be charged for the electricity beyond free units(30 to 75). This will continue till the judgment of the Hon'ble High Court of Gujarat is received. The judgment will be honoured by both the parties.
(2) Concessions towards 25% reduction in license fees,2.5% compensatory allowance, concessional water supply will not be payable from 01.10.2006.
(3) Since only once compensatory allowance is payable at one time, Tribal Area Allowance will not be eligible for payment from the date the Site Location Allowance is paid.
(4) With regard to regulation of Tribal Area Allowance for the period from 01.04.2001 to 30.09.2006, the decision of the Labour Ministry, New Delhi/CGIT will be honoured.
(5) Both the management and KAKS has agreed to deal jointly for the pending adjudication case in the Hon'ble high court of Gujarat."
Page 12 of 20 C/SCA/8502/2003 CAV JUDGMENT5. The scenario was again changed in the year 2013. In the affidavitinsurrejoinder filed on 19.07.2013 on behalf of the petitioner, it was pointed out that the petitionerCorporation has decided, pursuant to the decision of its administrative Ministry i.e. Department of Atomic Energy, to continue four project concessions including free electricity units with modification. The Office Memorandum dated 28.03.2013 of the Department of Atomic Energy, dealing with the said subject and modifying the project concessions annexed with the affidavitinsir rejoinder, is extracted hereunder: "Government of India Department of Atomic Energy Secretariat Coordination Section Anushakti Bhavan S.M. Marg, Mumbai400 001 (02222862661) email:[email protected].
No.2/1(4)/2010SCS/VolII/4352 March 28,2013 OFFICE MEMORANDUM Subject: Review Project concessions sanctioned to project based employees of the DAE.
The undersigned is directed to refer to this Department's OM No. 2/33/97SCS/1139 dated 30.11.1998 on the above subject and to say that the issue of reviewing continuation of existing four project concessions has been under consideration of the Department. The Atomic Energy Commission in the 209 th meeting held on 23.02.2013 has decided to modify the existing four project concession as under:
Page 13 of 20 C/SCA/8502/2003 CAV JUDGMENTI) Project concession to be continued:
a) Free Electricity subject to limits:
Sr. Grade Pay Free units of
N. electricity
per month
1 For posts in the 30
grade pay of less
than Rs.5400/
2 For posts in the 60
grade pay of
Rs.5400/ or above
or other higher pa
scales.
b) Transportation of school at minimal charges:
The concession is retained. The revised charges will be Rs.200/ per month child.
c) Concessions charges for School Excursions:
The use of departmental buses for school excursion not more than four times a year upto a distance of 100 kms each way may be allowed. The revised charge will be @ Rs.46/ per km.
II) Project concession withdrawn:
a) Reimbursement of school fee:
Pursuant to implementation of 6th CPC
recommendations, the Government has issued orders on Children Education Allowances Scheme mering the Children Education Allowance and Reimbursement of Tuition fee, which were payable separately. This allowance is also linked with Dearness Allowance subject to conditions. Therefore the concession of reimbursement of school fee is withdrawn.Page 14 of 20 C/SCA/8502/2003 CAV JUDGMENT
2. These orders take effect from 1st March, 2013.
(A. Sukumaran) Under Secretary 02222026881 Email:[email protected]"
5.1 Pursuant to the decision of the Department of Atomic Energy in above Office Memorandum, the petitionerCorporation issued order/communication dated 27.06.2013, adopting the same and modifying and continuing the Project Concession. The relevant part of the said order dated 27.06.2013 is reproduced hereunder: "Sub: Review of Project concessions sanctioned to project based employees of the DAE.
Employees posted at Kakrapar Gujarat Site were sanctioned certain project concessions as per DAE OM No.2/32/97SCS/1139 dated 30.11.98.
DAE vide their OM No.2/1(4)/2010SCS/Vol II/4352 dated 28.03.2013 has modified the existing project concessions and has withdrawn the concessions with effect from 01.03.2013 as indicated below (copy enclosed):
(I) Free Electricity Units:
Existing Modified
Pay slabs Free Units Grade Pay Free Units
(as per 5th allowed per (as per 6th allowed per
CPC) months CPC) month
Pay upto 30 For posts in 30
Rs.3350/ the grade pay
of less than
Pay from 45
Rs.5400/
3351/
to
Rs.7250/
Page 15 of 20
C/SCA/8502/2003 CAV JUDGMENT
Pay from 60 For posts in 60
7251/ the grade pay
to of Rs.5400/
Rs.10325/ or above or
other higher
Pay 75
pay scales
Rs.10326/
and above
5.2 The respondentUnion filed their affidavit dated 04.06.2013, wherein it was submitted that the Nuclear Power Corporation of India Ltd. has also its various units located in the State of Gujarat, Maharashtra, Rajasthan, Tamil Nadu, Uttar Pradesh, Karnataka. The service conditions of employees were common at each power station. It was submitted that the Kakrapar Power Station was manufacturing 325 millions units and if the employees were to be given 100% free supply of electricity, it will be 0.25% of the total production of electricity which was negligible. It was stated that out of charter of five demands, four demands except concession on free electricity units were settled. The said demand was not settled because of pendency of the present petition. It was submitted that other public sector organizations like the BSNL, the Railway were giving concessions to its employees;
the BSNL was giving telephone facility and the Railway was giving free pass facility etc. It was accordingly contended that the concession on the electricity ought to have been continued for the employees of the petitionerCorporation, Kakrapar, Anumala Township. In the affidavitinsir rejoinder filed on behalf of the petitioner, the above contentions were denied. It was submitted that the consumable electricity was required Page 16 of 20 C/SCA/8502/2003 CAV JUDGMENT to be purchased by paying therefore normal rates of electricity.
6. At the time of hearing, the petition was pressed by the petitioner and contested by the respondent. Heard learned advocate J. D. Ajmera for the petitioner and learned advocate Mr. T. R. Mishra for the respondent Union.
7. As already noted, the original controversy before the Industrial Tribunal raised in respect of six different allowances availed as Project Concessions, had boiled down to only one issue namely free electricity concession in light of the aforementioned subsequent developments. The said concession on free electricity which was at one point of time sought to be withdrawn because Site Location Allowance was introduced, has now been continued by the petitioner Corporation in view of its decision of 2013 mentioned above. In the decision taken of 28.03.2013, the issue was reviewed and the said allowance has been continued with modification in the pay slabs and corresponding free units. The free units allowed per month ranging from 30 to 60 units. Earlier free units allowed were 30 to 75, depending upon the different pay brackets. It was stated that the said modification and the change in the pay bracket for granting concession of free electricity units was pursuant to 6th Pay Commission recommendations. The Court is not concerned with modalities of concession.
7.1 The contention of learned advocate for the Page 17 of 20 C/SCA/8502/2003 CAV JUDGMENT petitioner that the decision on grant of Project Allowances/Concessions including under the head of free electricity units was in the realm of policy, should not be lightly brushed aside. These concessions were shown to be having nexus with the Pay Commission Recommendation. It was in the nature of policy framed from time to time on the grant of concession. It was demonstrated that the Department of Atomic Energy was a administrative department whose decision in respect of concession to be accorded to the employees/workmen, has been time to time adopted, applied and followed by the petitionerCorporation. It was also submitted that uniformity and nationalization of structure of pay and concession at different power stations was required to be achieved. The contention that the effect of the impugned judgment and award of the Industrial Tribunal amounted to interjecting and upsetting the decision which was in the area of policy making, could be countenanced as against the reasoning supplied by the Tribunal.
8. In any view, the free electricity concession which was sought to be withdrawn at the time of introducing Site Location Allowance in the year 2006, has now been reintroduced as per the aforesaid decision taken in the year 2013. The workmen of the respondentUnion at Kakrapar, Anumala Township, would be getting the said benefit in accordance with the said decision. The concession on free electricity has been substantially retained for the workmen/employees, may be with some changes.
Page 18 of 20 C/SCA/8502/2003 CAV JUDGMENT9. In the aforesaid view and for the reason also that the the Department of Atomic Energy having reviewed the issue of continuation of project concession including the concession with regard to free electricity units as per the decision of the Atomic Energy Commission in its 209th meeting in the aforementioned Office Memorandum dated 28.03.2013 and the order of the petitioner Corporation consequently passed on 26.07.2013, the impugned judgment and award of the Industrial Tribunal could not be allowed to operate any further. The same deserved to be set aside. Accordingly, judgment and award dated 9th April, 2003 passed by the Industrial Tribunal, Surat in Reference(I.T.C.) No.32 of 1999 is hereby quashed and set aside.
10. At the time of issuing Rule in the petition, this Court inter alia directed to continue the then existing status quo and further directed that if the concessions were already continued in favour of the respondents, the same may be continued. In that regard, it is observed that if pursuant to the said interim direction, the workmen of the respondent Union have enjoyed all or any of the concessions and the petitionerCorporation had continued the same for the workmen, there shall be no recovery in that regard. Setting aside of the impugned judgment and award will not entitle the petitionerCorporation to recover any of the benefits, monetary or otherwise availed to the workmen under the award or by virtue of interim order of this Court.
Page 19 of 20 C/SCA/8502/2003 CAV JUDGMENT10.1 The aforesaid decision of 2013 for continuing free electricity units allowance is made effective from 01.03.2013. It is further directed that since this petition was pending and the workmen were enjoying hitherto said concessions, the decisions reflected in the Office Memorandum of the Department of Atomic Energy dated 28.03.2013 and consequent order dated 27.06.2013 of the petitionerNuclear Power Corporation of India Limited would take effect from 01.04.2014 in respect of the workmen of the respondentUnion. It is directed that the petitioner Corporation shall not effect any recovery in that regard also.
11. Qualified by aforesaid observations and directions, the petition is allowed. Rule is made absolute in the terms aforesaid.
(N.V.ANJARIA, J.) Chandrashekhar Page 20 of 20