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Gauhati High Court · body

1997 DIGILAW 230 (GAU)

Assam State Electricity Workers Union v. Assam State Electricity Board and Ors.

1997-11-05

N.SURJAMANI SINGH

body1997
Upon hearing the learned counsel on both sides, it appears to me that the writ petitioner, namely the Assam State Electricity Workers' Union represented by its General Secretary, made a prayer in this writ petition for quashing the impugned order dated 12.7.94 No.ASEB/PL/60/73/Pt/31, as in Annexure 2 to the writ petition, and all other orders made in pursuance thereto. For better appreciation in the matter, the impugned office order dated 12.7.94 is hereby quoted and re-produced as hereunder : "Office of the Chairman Assam State Electricity Board: Bijulee Bhawan Gauhati -No. ASEB/PL/60/73/Pt/31 dated Gauhati July 12, 1994 Office Order Payment of Project Allowance made to those employees who stay away from the project site is stopped immediately and monthly recoveries of project allowance already drawn by such employees should be made from the date of drawal from the monthly pay bill of the concerned employees at such rate of drawal with effect from the pay bill of July, 94 payable in August, 1994 By order etc...... Sd/- Deputy Personnel Manager (R), ASEB, Gauhati -1." 2. According to the writ petitioner, namely Assam State Electricity Workers' Union, hereinafter referred to as 'Union', which operates in the establishments of the respondents throughout Assam and all the technical, ministerial, operational, skilled and unskilled employees posted in the establishments under the respondent Nos.2 to 6 are members of the petitioner's Union, and thus the petitioner Union is charged with the responsibility of protecting, preserving and promoting the service ' interests and conditions of services of the members employees including those posted in the establishments under the aforementioned respondents. As per the related office memorandum dated 11.6.1982, as in Annexure 1A. governing the payment of Compensatory (Project) Allowance under the Assam State Electricity Board, hereinafter referred to as 'the Board', all the employees irrespective of their status, who are directly employed in the Project work and posted in the site are eligible for getting the Project Allowance and thus, the rates of Project Allowance for the different projects are specified under the related order bearing No.ASEB (PL) 60/73/200 (A) dated 22.6.1987 making the effective date of it on and from the 6th May. 1987, i.e. the date of decision of the Board, and until further orders, as seen in the document marked Annexure IB. 1987, i.e. the date of decision of the Board, and until further orders, as seen in the document marked Annexure IB. For the purpose of paying the Project Allowance, project have been categorised in three groups as A. B and C which are categorically enumerated in the order, as hereunder : xxxx  xxxxx xxxx The numbers of employees posted in the establishments of the respondent No. 2 to 6 are given below : "CTPS (respondent 2) 495 LTPS (respondent 4) 470 NTPS (respondent 3) 700 DTPS (respondent 5) 630 DHEP (respondent 6) 70" Amongst the above numbers of employees. 10% of it fall in the officers category and the rest are lower cadre employees. It is also the case of the petitioner-Union that, the respondent Board has framed Assam State Electricity Board Employees (General Services) Regulation. 1960 in exercise of powers under section 79 (c) of the Electricity (Supply) Act, 1948 to which it owes its existence. The related Regulation 15 thereof provides that residential accommodation cannot be claimed by an employee as a matter of right and as such the Board has kept unto itself discretion to provide residential accommodation to such class or classes of employees as it may decide. It has also been laid down that house rent allowance may be paid to the employees who have not been provided with residential accommodation. The petitioner-Union went on to contend that the respondents have not been able to provide residential accommodation to a large segment of the project employees and as such the employees working in the Chandrapur Thermal Power Station, where the number of employees is 495, only 365 units of accommodation are made available and as such 130 employees are to make their own arrangements for accommodation outside the project area or they are to share accommodation with their colleagues inside the project at the cost of comfort. Moreover, the employees at Chandrapur Thermal Power Station have been allowed to use the buses of the project authorities for their daily movement to and from Gauhati to Chandrapur Thermal Power Station and vice-versa. According to the petitioner-Union, the respondent No. 1 passed the impugned order of 12.7.94, as mentioned above. Moreover, the employees at Chandrapur Thermal Power Station have been allowed to use the buses of the project authorities for their daily movement to and from Gauhati to Chandrapur Thermal Power Station and vice-versa. According to the petitioner-Union, the respondent No. 1 passed the impugned order of 12.7.94, as mentioned above. In pursuance to the impugned order of 12.7.94, the respondent-Board issued another office letter/order dated 13.7.94 directing the respondent Nos.2 to 6 to supply information about the name and designation of employees staying outside the project and the date of drawal of Project Allowance, and the total amount drawn etc, etc before 26.7.94. as seen in the document marked Annexure 4 to the writ petition. The petitioner-Union went on to state that though some of the members of the petitioner-Union, who stay outside the project, but they work in the project as they have been posted thereat, because of the fact that they have been forced to stay outside the project premises in absence of and for want of residential accommodation and that they are not staying outside the project premises out of pleasure. According to the petitioner Union no notices have been served upon them before the discontinuation of the benefits of the aforementioned Project Allowance and also for recover}' of the Project Allowance so far drawn by the employees concerned and as such the impugned order dated 12.7.94 is violative of principles of natural justice. 3.The case of the petitioner-Union is contested by the respondents by filing an affidavit-in-opposition and contending inter alia that the Board in exercise of the powers conferred under section 79 of the Electricity (Supply) Act, 1948, has framed the Assam State Electricity Board Employees (General Services) Regulation. I960, which govern the service conditions of the employees of the Board and. the Project Allowance was intended to be granted to those employees who were directly employed in the project and posted at site. The respondents admitted the existing rate of Project Allowance in different projects as contended by petitioner-Union. However, the respondents stated that in pursuance of the related order dated 22.6.87 the employees of MGT. the Project Allowance was intended to be granted to those employees who were directly employed in the project and posted at site. The respondents admitted the existing rate of Project Allowance in different projects as contended by petitioner-Union. However, the respondents stated that in pursuance of the related order dated 22.6.87 the employees of MGT. Galeki Kathalguri and Bongaigaon Thermal Project have been drawing Project Allowance at the rate of 10% of the basic pay subject to a maximum of Rs.200/- PM, but the management of the Board while considering the matter of Project Allowance etc in 1994 it was found that it was not prudent to pay Project Allowance to those employees who stay away from the project. The Chairman of the Board passed order in the file for immediate stoppage of payment of Project Allowance to such employees and recovery of the amount already paid. In pursuance of this order of the Chairman, the office order No.ASEB (PL)60/73/Pt/31 dated 12.7.94, as in Annexure 2 to the writ petition, was issued. As per this impugned order, payment of Project Allowance to those employees who stay away from the project site is stopped immediately and monthly recoveries of Project Allowance already drawn by such employees should be made from the monthly pay bills of the concerned employees starting from the pay bill of July, 1994 payable in August,1994. According to the respondents the Board has since taken a decision to stop payment of Project Allowance except in Dhansiri Project vide Resolution No.3 in the meeting held on 29V11.94. and in view of this decision none of the employees of other thermal project is entitled to get Project Allowance with effect from 1.6.95. It is also the case of the respondents that such Project Allowance is actually meant for those employees only who stay in the project site and not to the employees who stay outside the project site. The respondents went on to contend that such employees who do not reside in the project site are not entitled to the Project Allowance and the orders passed for recovery of such amount already drawn on this account are justified. 4. At the hearing Shri BN Sarma, the learned counsel for the petitioner-Union contended that the impugned order dated 12.7.94. The respondents went on to contend that such employees who do not reside in the project site are not entitled to the Project Allowance and the orders passed for recovery of such amount already drawn on this account are justified. 4. At the hearing Shri BN Sarma, the learned counsel for the petitioner-Union contended that the impugned order dated 12.7.94. as in Annexure 2 to the • writ petition, is not tenable in the eye of law as the impugned order was passed in complete violation of the principles of natural justice, inasmuch as no notice or reasonable opportunity of being heard was afforded to the concerned members of the petitioner-Union before passing of it and as such the same is liable to be quashed. The learned counsel, further, contended that as per related provisions of Regulation No.5 governing the payment of Compensatory (Project) Allowance, it is only the Board, which may review and reduce the rates of Compensatory (Project) Allowance and as such neither the Chairman nor the Deputy Personnel Manager (R), ASEB has jurisdiction to pass the impugned order of 12.7.94, and as such the impugned order was passed by the authority concerned without jurisdiction. Shri Sarma, further, contended that atleastthe respondents ought to have afforded the reasonable opportunity of being heard to the concerned members of the petitioner-Union before passing the impugned order, but it was not done so and. on this ground alone the impugned order deserves to be quashed. 5. In reply Shri NN Saikia learned senior counsel, assisted by Shri J. Chutia, learned counsel for the respondents, contended that the principles of natural justice is not applicable in the instant case inasmuch as the respondents passed the impugned orders after considering existing facts and circumstances of the case and the respondents felt that it was not fit to pay Project Allowance to those employees who stay away from the project. Shri NN Saikia. learned senior counsel, further argued that the Board has since taken a decision to stop payment of Project Allowance except in Dhansiri Project vide Resolution No.3 of the related meeting of the Board held on 29.11.94. none of the employees of other projects are entitled to get Project Allowance with effect from 1st June, 1995, and as such there is no error or illegality in the impugned order of 12.7.94. none of the employees of other projects are entitled to get Project Allowance with effect from 1st June, 1995, and as such there is no error or illegality in the impugned order of 12.7.94. The learned senior counsel further contended that the petitioner-Union has no enforceable legal right in the matter and as such the writ petition is not maintainable. 6. Now this Court is to see and examine as to whether the writ petitioner-Union has an enforceable legal right in this matter or not, and whether the respondents had passed the impugned order in accordance with law or not. 7. It is an admitted position that rightly or wrongly the respondents had afforded Compensatory (Project) Allowance to the concerned employees under the respondents at the related time, and that under the impugned order dated 12.7.94 such Project Allowance has been stopped immediately and the monthly recover}' of Project Allowance already drawn by such employees have to be recovered from the monthly pay bill of the concerned employees at such rate of drawal with effect from the pay bill of July 1994 payable in August 1994. 8. As per the related Regulation No. 2 (3) governing payment of Compensatory (Project) Allowance under the Board, the eligible employees for such a Project Allowance has been defined and the same is quoted below, for just determination of real point in controversy between the parties : "2. (3) Eligible employee means an employee of the Board irrespective of status who is directly employed in the project work and posted at site." 9. So far as the argument advanced by the learned senior counsel for the respondents to the effect that the power to sanction Compensatory (Project) Allowance in individual case(s) and variance thereof and power to interpret any provision under the Regulation rests with the Chairman as enshrined under the related Regulation No.6. which is not disputed by the parties. It is also an admitted position under the related Regulation No.5. "The Board may review and reduce the rate of Compensatory (Project) Allowance during the currency of a sanction on good and sufficient reason, provided that no reduction in the rate shall be enforced with retrospective effect." 10. On bare perusal of the impugned order dated 12.7.94 as in Annexure 2 it is crystal clear that the impugned order was passed on 12.7.94. On bare perusal of the impugned order dated 12.7.94 as in Annexure 2 it is crystal clear that the impugned order was passed on 12.7.94. However, as per Resolution No.3 made in the Board's meeting held on 29.11.94, it has been observed that except for the Dhansiri Project, other power stations had etablished fully at other places for quite some time and therefore the circumstances which warrant payment of Project Allowance did not exist and in such circumstances the Board has decided payment of Project Allowance from 1.6.95 in case of Dhansiri Project as reflected in para 8 of the affidavit-in-opposition (counter < affidavit). For these existing reasons it could be rightly held that the impugned order as in Annexure 2 was passed before adopting/taking the aforementioned Resolutions No.3 of the Board's meeting held on 29.11.94. and thus it has no application in the instant case. Be that as it may. the Board has full authority to pass any order for stopping the payment of Project Allowance as it is in its wisdom. The Courts shall not interfere in such cases. However, on perusal of the available materials on record it is seen that the respondents felt that so far as the Project Allowance afforded to the employees is concerned, the same had been stopped on the main ground that they stayed away from the project site. As discussed above, the Regulation No.2 (3) enable the employees to enjoy/get Compensatory (Project) Allowance, if they are directly employed in the project work and posted at site, and it does not debar the employees to stay outside the project site though they are posted at the project site. Therefore, in. my considered view, it is quite unjust and illegal on the part of the respondents to make recoveries of the Project Allowance already drawn by such employees on the main ground that they had been staying outside the project site. Of course, the respondents concerned have competent jurisdiction and power to make or stop payment of Compensatory , (Project) Allowance to the employees concerned under the Board as it has it's own wisdom and power as discussed above. But the respondents concerned had committed error and with material irregularity while passing the impugned order dated 12.7.94 to the extent of ordering recover}' of the Project Allowance already drawn by such employees without affording any reasonable opportunity of being heard to them. But the respondents concerned had committed error and with material irregularity while passing the impugned order dated 12.7.94 to the extent of ordering recover}' of the Project Allowance already drawn by such employees without affording any reasonable opportunity of being heard to them. Rightly, or wrongly the respondent concerned had afforded Compensatory (Project) Allowance to the concerned employees and as such those employees had accrued a right and such right cannot be deprived of or withdrawn without affording a reasonable opportunity of being heard to them. 11. It is an accepted principle of lave that violation of natural justice amounts to the decision void, and the violation of such principles if exists/existed in the an order passed in quasi judicial proceeding by a competent authority the Courts shall always invoke its extraordinary jurisdiction under Article 226 of the Constitution of India for quashing the said decision. In the book 'Administrative Law', Prof. HWR Wade has said : "Where an administrative act of decision is vitiated by a breach of natural justice, the Court may award any appropriate remedies. The remedy will frequently ' be Certiorari to quash, on the footing that the vitiated decision is void and a nullity. Traditionally natural justice has been confined to the two rules now to be discussed; that a man may not be judge in his own cause; and that a man's defence must always be fairly heard. It has not, as yet, included the requirement that reasons should be given for decisions. On the other hand there is an isolated judicial statement that natural justice requires decisions to be based on some evidence of probative value. The Courts are now so conscious of natural justice that they may well extend its scope in both these directions." Further in the same book, Prof. Wade has also stated : "How far can this obvious principle of natural justice be transplanted from its native judicial soil into the territory of administration? Can the Courts impose an administrative technique of their own devising by laying down standards, and are there any standards of universal validity? Wade has also stated : "How far can this obvious principle of natural justice be transplanted from its native judicial soil into the territory of administration? Can the Courts impose an administrative technique of their own devising by laying down standards, and are there any standards of universal validity? The answer is that the Courts have succeeded in enforcing the principle very widely, broadly speaking in all cases where legal right or status are affected by the exercise of administrative power, saving only cases where the difficulty is insuperable; and that, accordingly, natural justice has become a doctrine with a high degree of universality. It does not follow that it need be modelled strictly on Court procedure; hearing need not always be oral hearings, nor need sources of evidence always be disclosed. But in general the notion of a fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and right to argue." 12. For the reasons and discussions made above, I hereby set aside the impugned order of 12.7.94, as in Annexure 2 to the writ petition, to the extent of monthly recoveries of Project Allowance already drawn by those employees concerned as the same is violative of the principles of natural justice. In the result the writ petition is partly allowed, but no costs.