C6; (mg/x ‘ §L% w‘w @ W:— law—rm Wm W W W (801m) m m (wtfr (w) mgr /2o1o W Qro Ifro mm; , Ba 52 36f, m1 Tao Hi 311$: W, gm W, W—airré? 3'31? :c,‘—22, 15 8am; w.§.%ft.w. m—viT Wan, fx‘vrcaT — Win (801m) . m Wm ...................... 1. w.s‘§h.w. Hrréa Qiimzé’r. w.s‘.?ff.w.?frqmi€, W (501m) Wixftw. m (501m) WWH§W—226$Wfal @ Writ Petition (SI No.6427[2010 PETITIONER D.P. Saraf Versus RESPONDENTS S.E.C.L. and another ORDER wv N POST ON 5U NOVEMBER 201 1 ‘KW ‘ Manindra Mohan ‘ Sd/- Shrivastavax’ . Judge @ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Writ Petition (S) No.6427/ 2010 PETITIONER D.P. Saraf Versus RESPONDENTS S.E.C.L. and another Appearance: Shri D.P. Saraf, petitioner in person. Dr. N.K. Shukla, Sr. Advocate with Shri Aditya Khare, counsel for the respondents. ORDER (Passed on 2si11.2011) 1. By this petition under Article 226 of the Constitution of India, the petitioner has assailed the legality and validity of the action of the respondents by which a deduction @ 1% is being made from the basic pay of the petitioner towards electricity charges. d‘ \ 2. Facts necessary fdrZ adjuaiéation of controversy involved in the petition are that the petitioner is working as Chief Stores Keeper in the employment of respondent —S.E.C.L. and posted at Korba. The respondent—Company— is engaged in mining of coal from coalmines and is a subsidiary company of Coal India Limited (for short “C.I.L.”), a Govt. of India Enterprise. @ m‘k 3. Caseof the petitioner is that from the date of his appointment, the petitioner had been receiving facilities of residential quarter, water and electricity free of cost and the aforesaid facilities were being treated as perquisite, in respect of which, tax is also beeing deducted under the provision of the Income Tax Act from the year 2006. On 19.10.2006 (Annexure —1), an office memorandum was issued by the C.I.L. and circulated to all the subsidiary coal companies including respondent-company, stating that the Functional Directors of the Coal India Ltd. in its lst meeting held on 3rd October, 2006 deliberated and resolved that electricity charges shall be recovered @1% of the basic pay from such employees who are posted in C.I.L. H.Qs. and/or are living in residential accommodation owned or leased by the C.I.L. It was further stated in the memorandum that other establishments in subsidiary companies who are not covered on date under this provision may also be covered by moving suitable proposals for consideration by Functional Directors of the concerned subsidiary company. On the receipt of such memorandum, the respondents have started deducting electricity charges from the basic pay of the petitioner @1%. 4. The grievance of the petitioner is that the respondents, without l informing the petitioner, have started making deduction on the basis of the aforesaid office memorandum dated 19.10.2006 (Annexure—l), even though the direction for recovery of electricity charges is only in respect of those employees who are posted in C.I.L. H.Qs. and/or are living in residential accommodation owned or leased by the C.I.L. It is the case of the petitioner that he 1's not posted in C.I.L. H.Q. nor he is occupying residential accommodation owned or leased by C.I.L. Further case of the petitioner is that he could be subjected to such recovery only in case suitable proposal were moved and decision taken in that regard by Functional Directors of the respondent-company, which has not been done so far. Therefore, in the absence of any such decision taken by the respondents to recover electricity charges from the employees who are occupying residential quarters owned or leased by subsidiary company/S.E.C.L, no electricity charges are payable by the petitioner. Aggrieved by the action of the respondents, the petitioner made representation to the Chairman— cum—Managing Director of the respondent-Company I vide representation of annexures P—3, P—4 and P-S and finally, vide letter dated 8/9th October, 2010 (Annexure -6), the petitioner has been informed by the Personnel Manager, S.E.C.L. Korba area that the deduction is being made as per the instructions issued by the C.I.L. @ In the petition, it has been pleaded that the perquisite are treated as income and tax is being deducted on that account. Even after deductions are being made from the basic pay @1% towards electricity charges, there is no corresponding deduction made from the total value of perquisites, with the result that the petitioner has been made liableifor payment of electricity charges and that amount is also included in the value, of perquisites and included as part of income, taxable under the income tax. #14, ,_ rm no; nil A m A A’lx 6. In the return of respondents, it has been pleaded that the deduction @ 1% towards electricity charges are being made in accordance with the terms and conditions of service enumerated in a binding settlement between the Management and the representative Trade Unions of the employees known as National Coal Wage Agreement, which is applicable during the period 1.7.2006 to 30.6.2011, relevant excerpt of the said agreement placed on record as Annexure R-l. It has been pleaded, inter alia, that Joint Bipartite Committee for the Coal India (J.B.C.C.I.) was constituted by the Govt. of India Which consisted of the representatives of the coal producing company and representatives of the workers working in all the subsidiary coal producing company. After several negotiations, the terms and conditions of non—executive cadre employees working in the coal subsidiary companies were formulated in respect of the period from 1.7.2006 to 30.6.2011 on 24.1.2009 under the signature of the parties, known as National Coal Wage Agreement—VIII (in short "N.C.W.A—VIII”). Clause 8.3.0 provides for such recovery where the employees are provided with company quarters together with electricity by the Management. It is submitted that the aforesaid N.C.W.A.-VIII is a settlement within the meaning of Section 2 (p) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act of 1947”) and binding in View of the provision contained in Section 18xof the Act of 1947. The recovery of electricity charges is not pursuant to or under the office memorandum dated 19.10.2006 (Annexure ~1), but under the settled terms and conditions of service under the N.C.W.A.—VIII. It ’’mg.kh petitioner has an alternative remedy of taldng recourse to the provision relating to adjudication of dispute under the provision of the Act of 1947. alia that the petitioner is not covered by the definition of word “Workman” as defined under Section 2 (s) of the because he electr1c1ty charges by appiication of the terms and conditions of service incorporated in N.C.W.A.—VIII as against the petitioner. It has also been pleaded that the N.C.W.A.—VIII is otherwise illegal the petitioner is not a workman, but is mainly employed in managerial capacity as Chief Stores Keeper and, therefore, the N.C.W.A.-VIII has no application to the case of the petitioner, as the settlement, as defined under the Section 2 (p) of the Act of 1947, means a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceedings. According to him, the terms and conditions of service which were being enjoyed by him for the last 23 years, included free supply of electricity and any alteration in the terms and conditions of service could take place only under an agreement between the parties or under any other statutory terms and conditions of service. He further submits that the N.C.W.A. —VIII being not applicable in his case and there being no decision taken by the respondent —company through its Functional Directors to recover electricity charges @ 1% from the basic pay of the petitioner in respect of the accommodation provided to him by respondents, the recovery of electricity charges from the petitioner is illegal. The petitioner in support of his contention, relied upon the decision in the case of State Bank of India Staff Association and another Vs. State Bank of India and Orsl. . On the other hand, learned senior counsel appearing for the respondents, submitted that the petitioner has not challenged the legality or validity of N.C.W.A.~VIII in his petition and by way of rejoinder, the same could not be allowed to be raised. He further submits that the petitioner has not made any specific pleadings in support of his case that he is not workman due to reason that he is employed mainly in a managerial or administrative capacity 1A1R 1996 sc 1685 @ and except vague pleading, no other details and evidence in support of such pleading have been placed on record by the petitioner. He further submits that recovery of electricity charges is not based on the memorandum dated 19.10.2006 of the C.I.L., but on the basis of terms of agreement of N.C.W.A.—VIII governing terms and conditions of the employee in respect of the period from 1.7.2006 to 30.6.2011. In support of his contention, learned counsel for the respondent relied upon the decision in the case of Mohan Mahto Vs. M/s. Central Coal Field Ltd 8n Ors.2. .1 have Considered the rival submissions made by the petitioner and learned counsel for the respondents and perused the records. . The writ petition as filed, contained pleading to the effect that the petitioner is an officer/employee of the respondent ~company. It has been pleaded that the memorandum dated 19.10.2006 is being wrongly interpreted. In the writ petition neither there is specific challenge to validity of the N.C.W.A.-VIII, nor there are specific pleadings with regard to its applicability, but, all such pleadings have been made by the petitioner in his rejoinder. From the pleadings of the main writ petition and rejoinder and the submissions which have been made by the petitioner, the case of the petitioner has been that the petitioner is not a workman as he is employed mainly in managerial capacity and, therefore, the N.C.W.A. is not applicable to (him and therefore, no electricity charges could be recovered pursuant to memo dated 19.10.2006 2 AIR 2008 SC 39 (Annexure -1) issued by the C.I.L, because the petitioner is neither living in residential accommodation owned or leased by C.I.L. nor any such decision to recover electricity charges by moving suitable proposal has been made by the Functional Directors of the respondent-company, as provided in memorandum dated 19.10.2006 of C.I.L. 12. The petitioner in the writ petition has made a general submission with regard to his status that he is the officer/employee of the respondent~company. In the rejoinder, though the petitioner has pleaded that he is employed mainly in managerial capacity, neither any details of the nature of work performed by the petitioner have been elicited in the pleading, nor any documentary evidence of job description of the petitioner has been placed on record by the petitioner. The pleading that the petitioner is not a workman as he is employed mainly in managerial capacity has been made only in the rejoinder and that too without any material basis to advance that the petitioner is not a workman. Whether or not N.C.W.A—VIII would be applicable in the case of the petitioner, would really depend upon determination of question as to whether the petitioner is a workman or not. In the absence of specific details pleaded or other kind of evidence placed on record by the petitioner, no conclusion can be drawn in favour of the petitioner that he is not I' a workman and, therefore, the contention of the petitioner that he is not a workman, but employed mainly in managerial capacity, cannot be accepted and is liable to be rejected. It was only when lnnninnn i @ the respondents came out with a plea that the recovery of electricity charges is being made from the petitioner under the settled terms and conditions of N.C.W.A.—VIII, that the petitioner has sought to collaterally challenge the validity and applicability of the same by way of rejoinder, without there being any specific pleadings incorporated by way of amendment in the writ petition praying for relief for declaration to the effect that the N.C.W.A.— VIII is either illegal for reasons stated in the rejoinder or otherwise it is not binding on him under the scheme of provision contained in Section 18 of the Act of 1947. The stand of the respondents is clear that the recovery of electricity charges from the petitioner is by application of terms and conditions settled under the N.C.W.A.—VIII and not under the memorandum dated 19.10.2006 issued by the C.I.L. and, therefore, it is irrelevant whether the petitioner is occupying the residential accommodation owned or leased by C.I.L. or owned or leased by respondent subsidiary— company and for that matter, there is no necessity of passing any resolution in that regard by the respondent-company through its Functional Directors. In View of the decision of the Supreme Court in the case of Mohan Mahto (supra), N.C.W.A. are binding as settlement. It is, therefore, difficult to accept the submission of the petitioner that recovery of electricity charges is illegal or unauthorized because no resolution has been passed by the Functional Directors of the respondent—company pursuant to memorandum dated 19.10.2006’issued by the C.I.L.(Annexure l). The grievance of the petitioner is that the recovery towards electricity charges from his basic pay is not being deducted from the value of perquisites resulting in liability for payment of income tax, can be a matter of challenge by the petitioner in a properly constituted petition, but not in the present petition, as that is a matter relating to recovery of tax and not recovery of electricity charges. In the absence of proper pleadings and any other evidence led by the petitioner, it has to be held that the petitioner has failed to establish in these proceedings that he is not a workman, but mainly employed in managerial capacity. . In the result, I do not find any merit in the writ petition. The same deserves to be dismissed and is accordingly dismissed. . There shall be no orders as to cost. Sdl— _ Manindra Mohan Shrwastava , i a r g g "’LW~* Vg" r Judge