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Gauhati High Court · body

2008 DIGILAW 597 (GAU)

Power Grid Corp. of India Ltd. v. Johan Bordoloi

2008-08-13

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. P.C. Deka, learned senior counsel assisted by Mr. S.K. Medhi, learned Counsel appearing for the appellant as well as Mr. K.P. Sarma, learned senior counsel assisted by Mr. H. Das, learned Counsel representing the North Eastern Electric Power Corporation ('NEEPCO' for short). 2. By means of this writ appeal the appellant Power Grid Corporation of India ('PGCI' for short) has assailed the judgment and order dated 6.10.2004 rendered by the writ Court in Civil Rule No. 958/98 on the ground of perversity and contradiction on the face of the judgment itself. It is pleaded that a bare perusal of the paragraphs 9 and 10 of the judgment itself would indicate that the findings arrived at by the impugned judgment ex-facie were inconsistent and conflicting. 3. Before delving upon the contentions so placed on record by the learned Counsel for the parties it will be pertinent to have a look into the factual matrix of the case in brief. The respondent No. 1, as the petitioner, being admittedly a casual employee in NEEPCO, moved the writ Court by filing the instant writ proceeding being Civil Rule No. 958/98 pleading that while by virtue of an agreement arrived at between NEEPCO and the then National Power Transmission Corporation (NTPC for short) for taking over the ownership basis all transmission projects in operation or under process within the NEEPCO by the then NTPC which has been later on renamed as PGCI, the staff engaged in the planning, engineering, design, construction, procurement, finance and maintenance in NEEPCO required to be inducted to the then NTPC now PGCI and in the process when the names of other staff and employees working in the NEEPCO were sent to then NTPC, the respondent No. 1 though working since 1988 as Muster Roll worker without any break, was not sent to the then NTPC by NEEPCO. Such exclusion of the name of the respondent No. 1 from those names sent by NEEPCO itself, in their own affidavit filed before the writ Court was evident. Such exclusion of the name of the respondent No. 1 from those names sent by NEEPCO itself, in their own affidavit filed before the writ Court was evident. In the said response it was claimed by NEEPCO that the name of the petitioner who was working as Muster Roll Worker in NEEPCO was not forwarded due to the reason that the term and conditions of the services of the respondent No. 1 did not fall within the definition of "associated personnel" as defined in the National Thermal Power Corporation Limited. The National Hydroelectric Power Corporation Limited and the North Eastern Electric Power Corporation Limited (Acquisition and Transfer of Power Transmission Systems) Act, 1993 (for short, 'the Act') and the agreement executed between NEEPCO and PGCI was only confined to the absorption of "associated personnel" only and there was also no commitment from NEEPCO that the muster roll worker like the respondent No. 1, not being covered by the definition as aforesaid, would be entitled to absorption. 4. In the backdrop of above factual position, Mr. Deka, learned senior counsel representing the appellant has forcefully contended that the learned Single Judge committed an error of facts as well as on law in recording the findings in paragraphs 9 and 10 which are absolutely contradictory, conflicting and inconsistent to each other. 5. For the sake of convenience and also to make a close survey to the challenge made in this writ appeal as noticed above, it would be necessary to extract the relevant paragraphs including paragraphs 9 and 10 of the impugned judgment which are as under: Para : 8 In the context of above, it is necessary first to have a look at the terms and condition of the agreement which provides for absorption of associated personnel. Clause (5) of the agreement reads as follows: Transfer of Personnel-The staff posted and engaged as on 30.4.1991 exclusively for construction work/project operation and maintenance work of all transmission project as detailed in Annexure-I and II will be transferred to NPTC on immediate absorption basis w.e.f. 1.7.1991 subject to approval of Government of India. For this NEEPCO shall take option in writing from such employees and only those employees who opt for transfer to NPTC shall stand transferred. While asking for options, NEEPCO shall send details of any packages and other prerequisites as given by NTPC to NEEPCO to these employees. For this NEEPCO shall take option in writing from such employees and only those employees who opt for transfer to NPTC shall stand transferred. While asking for options, NEEPCO shall send details of any packages and other prerequisites as given by NTPC to NEEPCO to these employees. NPTC clarified regarding promotion policy that length of service put by these personnel in the corresponding grades in NEEPCO shall be taken into account for promotion in NPTC. NPTC also clarified that there is likely to be no dis-advantage to those joining on absorption basis in NPTC and those joining against open advertisement. NPTC has adopted the salary structure, service conditions and personnel and establishment policy of NTPC and accordingly NPTC offered pay package and service conditions which are not inferior to those prevailing in NEEPCO before transfer. Special Allowances or facility, if any, as prevailing on date of transfer of employees shall be either protected as it is or this will be fitted in the pay and allowance package offered to NEEPCO personnel as terms and conditions for transfer from NEEPCO to NPTC. (a) All willing workmen on the strength of transmission line units including Power System, Engineering, Associated Contracts, Finance, Quality Assurance and other groups posted and engaged exclusively in transmission project will be transferred to NPTC on immediate absorption basis (List handed over). (b) All willing Executive and Supervisory staff, who are on the rolls of Transmission Projects as on 30.4.1991 and continue in these units as on ] 30.6.1991 will be transferred to NPTC as on 1.7.1991 (List handed over). (c) In the case of staff on the rolls of Transmission Projects not covered by para (a) and (b) above, (NEEPCO and NPTC) will work out a formula for which reversion to NEEPCO depending upon the preference of the employee and his/her suitability. (d) All personnel records, vigilance and disciplinary proceedings, securities and other documents for employees advances, leave LTC account etc. will be handed over to NPTC on transfer of employees. (e) NEEPCO will pay leave salary for any forward of all leave, LTC, Gratuity, PF contribution and other employee benefits accrued upto the dated of transfer etc. for staff transferred to NPTC based on revised scales of pay, PF balance will also be transferred from NEEPCO, PF to the PF trust for NPTC employees. (e) NEEPCO will pay leave salary for any forward of all leave, LTC, Gratuity, PF contribution and other employee benefits accrued upto the dated of transfer etc. for staff transferred to NPTC based on revised scales of pay, PF balance will also be transferred from NEEPCO, PF to the PF trust for NPTC employees. NPTC and NEEPCO will also make a joint application to LIC/Insurance Companies for assignment of policies for the transferred employees. Portion of leave of NEEPCO employees (who are transferred to NPTC) which was transferred on their permanent absorption to NEEPCO from other Organization but for which leave salary equivalent is yet to be received from the previous Organization, shall also be transferred by NEEPCO to NPTC and further action will be taken by NEEPCO to realize this amount from previous organization and pay it to NPTC. 9. The terms and conditions of the agreement quoted verbatim even by implication do not suggest that Muster Roll Workers were intended to be absorbed by the NPTC after taking over. Perhaps, for this reason, the NEEPCO authorities while forwarding the list of "associated personnel" did not enlist the name of the writ petitioner for absorption by NPTC. Situation thus emerging necessitates scrutiny of the definition "associated personnel" a defined in the Act of 1993. Section 2(b) of the Act reads as follows: 2(b) "associated personnel" means the employees of each of the three companies associated with its power transmission system. 10. The word "associated personnel" incorporated in the aforesaid definition, on a plain reading, would mean any person employed under any of the three Companies taken over under the provisions of the Act of 1993 and associated with the power transmission. The petitioner having been associated with transmission of power (not being denied by the respondents) is to be treated as an "associated personnel". The definition of "associated personnel" do not admit of any room for any differential treatment between permanent and casual employees. This view appears to be sustainable when read with the provisions of Section 10 which entitle the petitioner to hold office or service under the NPTC on the terms and conditions which are not in any way less favourable to him. Section 10 provides for continuance of "associated personnel" on the vesting of power transmission system of the three Companies including the NEEPCO with the NPTC. Apparently there is no escape from this conclusion. 11. Section 10 provides for continuance of "associated personnel" on the vesting of power transmission system of the three Companies including the NEEPCO with the NPTC. Apparently there is no escape from this conclusion. 11. Clause (5) of the agreement, which is relied Upon by Shri Choudhury, do not expressly provide for transfer of the casual employees to the NPTC. But the provisions therein will have to be interpreted in consonance with the provisions of the Act of 1993. The provisions of Section 2(B) and Section 10of the Act of 1993 would, therefore, be determinative in this matter. Here, we may conveniently refer to a decision of the Hon'ble Supreme Court in Colour-Chem Ltd. (supra) which provides for interpretation in favour of the employees when, provisions are capable of two constructions. This judgment was rendered while dealing with a case relatable to the Maharashtra Recognisation of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, which is a labour welfare legislation. Guided by the principles enunciated therein, this Court feels inclined to hold that a casual employee engaged in the power transmission system by the NEEPCO would also be entitled to get his services transferred to NPTC after coming into force of the Act of 1993. This, however, does not mean that a casual employee would be entitled to absorption straightway. His status as casual employee shall remain undisturbed, and he shall have the right to hold office under the NPTC on the same terms and conditions he was working under the NEEPCO. 12. In the facts and circumstances of the case as narrated above, this petition is disposed of with the direction that the NEEPCO authorities i.e. Respondents No. 2 and 3 shall first examine as to whether the writ petitioner was appointed as a casual employee by them for services related to transmission of power and, if so, they shall forward his name to NPTC for taking over his services as a casual employee on similar terms and conditions and, on receipt of such information, the NPTC will take over the services of the petitioner as casual employee on the same terms and conditions under which he was working until and unless his services are dealt with as per provisions of Section 10 of the Act of 1993. 6. Having closely perused the above paragraphs and also considering the submissions of Mr. 6. Having closely perused the above paragraphs and also considering the submissions of Mr. Deka, learned senior counsel, it appears that the writ Court in paragraph 9 observed that the terms and conditions of the agreement so quoted in paragraph 8, on the face of it, did not suggest that Muster Roll Workers were required to be absorbed by the then NTPC after taking over and since the respondent No. 1, being a casual employee, was not fulfilling the terms and conditions so arrived at between NEEPCO and NPTC, the NEEPCO authority, while transmitting the list of "associated personnel" to NTPC, did not send the name of the respondent No. 1 for his absorption. The writ Court also considered the definition of "associated personnel" as defined in Section 2(b) of the Act that clearly mentioned that "associated personnel" meant the employees of the each of three companies associated with its power transmission system. It is also seen that no where in the Act, after close perusal of the same; it is provided that the term 'employees' also includes the muster roll workers and casual employees. 7. At the same time in the paragraph 10 it was observed by the writ Court that the respondent No. 1 having been associated with transmission of power (not being denied by the respondents) was to be treated as "associated personnel" and the definition of the "associated personnel" did not admit of any room for any differential treatment between the permanent and casual employees. 8. Given the entire factual aspect and on careful conjoint reading of the above paragraphs 9 and 10, we are constrained to hold that the findings to the extend that the definition of "associated personnel" did not admit of any room for any differential treatment between the permanent and casual employees, were based on no records; even the Act itself does not provide that the term "associated personnel" also includes the casual employees or muster roll workers and such finding, according to us, contrary to the observation made in paragraph 9 as indicated above, wherein it was manifestly held that the terms and conditions set out in the agreement "between NEEPCO and NPTC did not suggest for absorption Muster Roll Workers. 9. 9. Having considered the circumstances in its totality and the provisions of law laid down in the Act as well as the Clause (5) of the agreement executed between the NEEPCO and NPTC, we are of the considered view that the respondent No. 1 is not entitled to get any relief and accordingly upholding the observations recorded in paragraph 9 of the impugned judgment we do agree to defer with the findings recorded in paragraph 10. Consequently we are inclined to interfere with the observations made in paragraph Nos. 10, 11 and 12 as quoted above and the same stand set aside. The directions given to NEEPCO authorities to examine first as to whether the respondent No. 1 was appointed as casual employee by them for service related to transmission of power which fact was virtually admitted by the NEEPCO itself stating that that he was engaged as muster roll worker on daily salary basis for which his name was not send to the then NPTC for absorption, shall also stand quashed. 10. At this stage Mr. K.P. Sharma learned senior counsel has placed on record a communication dated 27.4.2005 sent by Executive Director (P and A) NEEPCO Limited, Shillong to the Executive Director, PGCI, Shillong informing that at the time examination of the case of the respondent No. 1 in compliance of impugned judgment and order dated 6.10.2004, it was found that there was no record in office of NEEPCO since all those records were already transferred to PGCI with further information that on examination of the case, the respondent No. 1 was found to be engaged as muster roll worker on daily wages basis under the then Executive Engineer (Elect,) Doyang Transmission Project, Kathiatoli with effect from 12.12.1988 till transfer of Transmission Project to PGCI. Copy of the aforesaid letter dated 27.4.2005, so placed herewith, be kept to form a part of the record. 11. In the result this writ appeal stands disposed of in terms of the observation and modification indicated above.