Himachal Pradesh High Court
Harish Kapoor vs N.H.P.C & Ors on 22 October, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.3658 of 2014 Reserved on: 16.10.2019 .
Decided on: 22.10.2019
Harish Kapoor ....petitioner.
Versus
N.H.P.C & ors ......respondents
............................................................................................. Coram The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner : Mr. Bhuvnesh Sharma and Ramakant Sharma,
r Advocates.
For the respondents : Mr. K.D. Shridhar, Senior Advocate, with Ms.
Shreya Chauhan, Advocate.
Jyotsna Rewal Dua, (J)
Asserting his entitlement to:- a) Productivity Linked Group Insurance (PLGI) & Ex gratia/Bonus for the year 2009/2010; (b) Cafeteria Allowance w.e.f. 26.11.2008 to 8.3.2010 and (c) Performance Related Pay (PRP) w.e.f. 1.4.2007 to 8.3.2010, petitioner has instituted this writ petition.
2. Facts in seriatim as they emerge from record alongwith reasoning may be noticed:
2(i) Petitioner joined the service of Himachal Pradesh State Electricity Board (HPSEB) as Junior Engineer (Civil) on 19.10.1984.1
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 22/10/2019 20:27:04 :::HCHP 2
2(ii) Vide office order dated 30.10.2004 (Annexure P-1), petitioner was deputed in respondent No.1/National Hydro Electric Power Corporation .
(NHPC), where he joined as such on 15.11.2004. The deputation as per office order dated 30.10.2004, was for a period of three years. The deputation tenure expired on 14.10.2007. Despite expiry of the deputation tenure, petitioner continued to serve in NHPC without any formal extension of his deputation.
Petitioner was finally repatriated to his Parent Department (HPSEB) on 8.3.2010.
2(iii) Some relevant terms and conditions governing the scales & allowances admissible to the employees deputed in NHPC from State of Himachal Pradesh as contained in Annexure P-2 may be noticed hereinafter:
"5. Pay:
Exercise of Option:
An employee on deputation may elect to draw either pay in the scale of pay of the deputation post in IDA Pay Scales fixed under Para- 6.2(A), or His basic pay in the parent department from time to time."
It is not in dispute that the petitioner on his deputation had opted the pay scale as was admissible in NHPC. He was granted and released the pay, as per his option. The next relevant term from Annexure P-2 is extracted hereinafter:-
"7. Payment of Allowances/Perks:
7.1. The payment of local allowances and other perks like HRA, CCA, Site Compensatory Allowance, etc. Shall be governed as per NHPC Rules.
7.2.........................
7.3 The deputionist will be entitled to Ex-gratia incentive etc, as per the NHPC Rules. They will not be entitled to any perks/allowances of the parent department."::: Downloaded on - 22/10/2019 20:27:04 :::HCHP 3
Petitioner continued to get allowances as per above clauses.
2(iv) On 26th November, 2008, an office memorandum was issued, .
Clause 12 of which, is reproduced here under:-
"Long term incentives, introduction of cost to the company (CTC) concept in CPSEs, Pay of Executives on deputation/transfer to CPSEs, Pay of Government officers on deputation to CPSEs and Superannuation Benefits will be as per Annexure IV."
Following two clauses contained in Annexure-IV appended to office memorandum dated 26.11.2008 being relevant, are reproduced:-
"iii). Pay etc. of Executives of CPSEs, on deputation/transfer: The executives, who are brought into holding companies from subsidiary companies or vice-versa on deputation/transfer, will continue to draw their basic pay as drawn in the original company. They will, however, be entitled to draw the allowances and variable pay/performance related pay as applicable to the borrowing CPSE.
iv). Pay etc of Government officers on deputation to CPSEs: The government officers, who are on deputation to the CPSE, will continue to draw the salary as per their entitlement in the parent department. Only those, who come on permanent absorption basis, will get the CPSE scales, perks and benefits."
2(iv)a) Clause (iii) of Annexure-IV as extracted above, governs the pay etc. of executives of CPSEs, who are brought into holding companies from subsidiary companies or vice-versa on deputation/transfer. This clause has no applicability to the petitioner as his parent department was HPSEB and not any subsidiary company, therefore, reliance placed by learned counsel for the petitioner on this clause for asserting his entitlement to the allowances and variable pay/performance related to pay as applicable to NHPC is misplaced.
2(iv)b) It is Clause (iv), of Annexure-IV, which is relevant to the case of petitioner. This clause governs the pay etc. of the Government Officers, who are on deputation in NHPC. The clause says that the Government Officers on ::: Downloaded on - 22/10/2019 20:27:04 :::HCHP 4 deputation to NHPC would continue to draw their salary, as per their entitlement in the parent department and further that the NHPC scales, perks .
and benefits would be admissible only to those, who come on permanent absorption basis in NHPC.
2(iv)c) Since Clause (iv) of Annexure-IV attached to office memorandum dated 26.12.2008, denied the NHPC scales to the Government Employees, who were deputed in NHPC and who were already drawing the NHPC scales as per options exercised by them in accordance with terms and conditions stipulated in Annexure P-2, therefore, there was a lot of resentment in deputed Government staff against this clause. Office memorandum dated 26.11.2008, was followed by circular No. 12/2009 dated 1.10.2009 (Annexure P-7). The relevant extracts from this circular are:-
"2. The issue is further clarified as under:-
(a) The Govt. Officers already on deputation with CPSEs as on 26.11.2008 (the date of issue of OM by the DPE regarding the revision of scales of pay of the executives and non unionized supervisors of CPSE), will continue to avail of the option already available and exercised by them till the end of their deputation tenure. The extension, if any given after 26.11.2008 will not qualify for the dispensation."
The above circular clarified that the Government Officers already on deputation with NHPC as on 26.11.2008, would be allowed the scales and allowances as per options availed by them, till the end of their deputation tenure. However, extension in deputation given after 26.11.2008, was not to qualify for this benefit.
2(iv)d) CWP No.3368/2010 was instituted in this Court by officials of Revenue/Personnel Department of State of Himachal Pradesh, on deputation ::: Downloaded on - 22/10/2019 20:27:04 :::HCHP 5 with NHPC. The contentions of the petitioners therein was that the office memorandum dated 26.11.2008 was to their detriment. After taking note of .
Clause 2(a) of circular dated 1.10.2009, (already extracted above), it was observed by the Court as under:-
"2. On a plain reading of the above Clause2(a) of Circular dated 1.10.2009, Annexure P6, it abundantly clear that the Government Officers such as the petitioners, who were already on deputation with CPSE's as on 26.11.2008, (the date of issue of office Memorandum dated 26th November, 2008, Annexure R.2) were to continue to avail of the option already available and exercised by them till the end of their deputation tenure subject to the condition that the extension, if any, given after 26.11.2008, would not qualify for this dispensation. Indisputable, petitioner No.1, Sh. Raj Kumar and petitioner No.2, Sh. Mehar Chand, were already on deputation as on 26.11.2008 and were relieved only on 31.12.2011 and 6.3.2012, respectively, and that too in terms of order dated 17.10.2011, passed by this Court in this matter, which is extracted below for ready reference:-
Petitioner are at liberty to make representation to NHPC, if they want to go back and do not remain in the present department on deputation in view of the circular issued in regard to their allowances. They may make such representations within a period of six weeks and the respondents shall take steps to relieve them in case they are not ready to remain in the parent department and such representation shall be decided by the NHPC at the earliest. The representation, if made within a period of six weeks, the same shall be decided by the respondents within a period of two months thereafter and put up the petition for hearing after winter vacations."
3. Thus, in terms of Clause 2(a) of Circular dated 1.10.2009, Annexure P.6, petitioners No.1 and 2 were entitled for allowances and perks being received by them from time to time uptill 26.11.2008 and thereafter till their repatriation on 31.12.2011 and 6.3.2012, respectively."
It is not in dispute that the judgment extracted above has attained finality. As per the stand taken by NHPC, the judgment has been implemented by NHPC not only in case of the petitioners therein, but also in the case of the present petitioner. The judgment was to the effect that ::: Downloaded on - 22/10/2019 20:27:04 :::HCHP 6 notwithstanding office memorandum dated 26.11.2008, Government employees on deputation with NHPC were to get the benefits of scale and .
allowances in terms of the options already availed by them at the time of their deputation in accordance with Annexure P-2 till the end of their deputation.
2(v) The present petitioner preferred his own CWP No.6491 of 2013, in this regard, which was disposed of vide judgment dated 9.9.2013, (Annexure P-4), directing respondent No.1 to dispose of the representation submitted by the petitioner by passing a reasoned and speaking order.
The representation of the petitioner was decided by respondent No.1 vide order dated 5.3.2014 (Annexure P-6). It was observed in the order that petitioner is entitled to draw salary and allowance as per Clause-7 of the terms and conditions governing the employees of State Government deputed to respondent No.1 NHPC; as against the request of the petitioner for release of an amount of Rs.86,818/-, respondent No.1 had sanctioned the release of an amount of Rs.1,10,541/- towards payment of allowances for the period w.e.f. 26.11.2008 to 8.3.2010.
3. Petitioner is praying for grant of three specific allowances, which may be separately taken up hereinafter:-
3(i) Productivity Linked Group Insurance (PLGI) & Ex gratia/Bonus:
Petitioner claims this allowance w.e.f. 26.11.2008 to 8.3.2010 by relying upon Clause (iii) of Annexure-IV attached to the office ::: Downloaded on - 22/10/2019 20:27:04 :::HCHP 7 memorandum dated 26.11.2008. As already observed earlier, this clause is not applicable to the case of the petitioner. Petitioner's case is governed by .
Clause (iv) of Annexure-IV, which pertains to pay etc. of Government Officers on deputation with NHPC. As per Clause (iv), Government Officers on deputation with NHPC were to draw the salary as per their entitlement in the parent department and only those who came in NHPC on permanent absorption basis were to get the NHPC scales/perks/benefits. As observed earlier, this clause was further clarified in Circular dated 1.10.2009 (Annexure P-7). This, read with judgment passed in CWP No.3368/2010, allowed the benefit of scales etc. as per options availed by the deputed employees/Government employees at the time of deputation.
It is not the case of respondent No.1 that PLGI and Ex gratia/Bonus was not admissible to the petitioner in terms of his option, exercised as per Annexure P-2. Office memorandum dated 26.11.2008 was to the detriment of the employees of State Government, who were sent on deputation to NHPC, inasmuch as it sought to change the terms and conditions opted by the deputed employees in matters of scales/perks/benefits.
Clause (iv) of Annexure-IV attached to office memorandum dated 26.11.2008, restricted the grant of NHPC scales only to those, who came in NHPC on permanent absorption basis. Those, who came in NHPC on deputation (not on permanent absorption basis) were to draw the salary as per their parent department. This was clear departure from the terms and condition contained in Annexure P-2, whereunder the deputed employees were allowed to exercise ::: Downloaded on - 22/10/2019 20:27:04 :::HCHP 8 the options to get salary/scales/allowances as per NHPC scales and allowances. This was further clarified by circular dated 1.10.2009 that the .
employees on deputation with NHPC as on 26.11.2008 would continue to avail the options exercised by them till the end of their deputation tenure. This was held to be so in CWP No.3368/2010. Therefore, in my considered view PLGI and ex gratia/bonus has to be allowed to the petitioner till his date of repatriation i.e. 8.3.2010.
Mr. K.D. Shridhar, learned Senior Advocate, for respondent No.1, contended that the deputation tenure of the petitioner had expired on 14.10.2007. Therefore, he was not entitled even to the benefit of Clause-2(a) of Circular dated 1.10.2009 read with judgment in CWP No.3368/2010.
Learned senior counsel further submitted that no formal extension was granted to the petitioner after completion of his deputation tenure. Be that as it may, it is an admitted fact that the petitioner even after expiry of his deputation tenure on 14.10.2007 continued to serve NHPC till his repatriation to parent department on 8.3.2010. It is not the case of NHPC, that petitioner served despite their unwillingness or that NHPC repatriated the petitioner prior to 8.3.2010. As per reply filed by NHPC, PLGI & Ex gratia was paid to the petitioner till 31.3.2009. Once this allowance has been paid to the petitioner till 31.3.2009, there is absolutely no justification for not paying it till his repatriation on 8.3.2010. Petitioner is accordingly held entitled to PLGI & Ex gratia w.e.f. 1.4.2009 to 8.3.2010.
::: Downloaded on - 22/10/2019 20:27:04 :::HCHP 93(ii). Cafeteria allowance from 26.11.2008 to 8.3.2010:
For claiming this benefit Mr. Bhuvesh Sharma, learned counsel .
for the petitioner relied upon office order dated 2.11.2010 (Annexure P-8).
Annexure-III attached to this circular deals with cafeteria allowance, the relevant part thereof may be noticed:-
"1.3. Accordingly, the following Perquisite and Allowances shall form part of the cafeteria limited to 47% of revised basis pay with effect from 26.11.2008."
The circular was issued on 2.11.2010, i.e. after the repatriation of petitioner to his parent department on 8.3.2010. Mr. Bhuvnesh Sharma, learned counsel for the petitioner submits that Clause-1.3 has to be applied retrospectively; benefit of this allowance has to be granted to the petitioner from 26.11.2008 till his repatriation on 8.3.2010. In my considered view, the contention is misplaced. Petitioner was not on deputation with NHPC at the time when the circular was issued. The circular will not be applicable to the petitioner, whose terms and conditions with respect to scale and allowances are governed by Annexure P-2. Petitioner therefore, is not entitled to grant of cafeteria allowance, which he was never paid while on deputation with NHPC. Office memorandum dated 26.11.2008 was clarified by Annexure P-7 dated 1.10.2009. There is no challenge by the petitioner either to office memorandum dated 26.11.2008 or to the circular dated 1.10.2009.
3(iii). Project Related Performance (PRP):
Petitioner is praying for allowance of PRP w.e.f. 1.4.2007 upto his repatriation on 8.3.2010. This allowance is also not admissible to the ::: Downloaded on - 22/10/2019 20:27:04 :::HCHP 10 petitioner as it was introduced by respondent No.1 vide circular dated 21.3.2013, whereas the petitioner had already been repatriated on 8.3.2010.
.
In view of the above, the writ petition is partly allowed.
Petitioner is held entitled to (PLGI) & Ex gratia/Bonus w.e.f. 1.4.2009 to 8.3.2010. His claim for remaining allowances i.e. Cafeteria Allowance w.e.f.
26.11.2008 to 8.3.2010 and Performance Related Pay (PRP) w.e.f. 1.4.2007 to 8.3.2010 are rejected. The writ petition is disposed of with above directions.
Pending miscellaneous application(s), if any, also stand disposed of.
(Jyotsna Rewal Dua), Judge 22nd October 2019 (rohit) ::: Downloaded on - 22/10/2019 20:27:04 :::HCHP