IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WP(C).No. 19133 of 2003(C) -------------------------------------- PETITIONERS: --------------------- 1. V.K.GOPALAKRISHNAN NAIR, ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, KAKKAD, SEETHATHODU P.O., VADASSERIKKARA, PATHANAMTHITTA. 2. K.SURENDRAN, OVERSEER, K.S.E.B. ELECTRICAL SECTION, KAKKAD, SEETHATHODU P.O., VADASSERIKKARA, PATHANAMTHITTA. 3. MATHEW, LINEMAN, OF -DO- -DO- 4. M.M.MATHEW, LINEMAN OF -DO- -DO- 5. K.G.SHAJIKUMAR, LINEMAN, OF -DO- -DO- 6. K.A.ANNAMMA, LINE WOMEN, OF -DO- -DO- 7. P.D.SUJAYAMMA, LINE WOMEN, OF -DO- -DO- 8. K.BALAKRISHNAN, LINE MAN OF -DO- -DO- 9. P.G.ABRAHAM, LINEMAN OF -DO- -DO- 10. M.K.SIVAN, WORKER, OF -DO- -DO- 11. V.K.MOHANAN, WORKER, OF -DO- -DO- 12. P.P.VINODKUMAR, WORKER OF -DO- -DO- 13. ANNAMMA KUNJUMON, PEON, OF -DO- -DO- 14. K.B.BALACHANDRAN, METER READER, OF -DO- -DO- 15. P.R.RAVEENDRAN NAIR, METER READER OF -DO- -DO- BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR RESPONDENTS: ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. W.P.(C) NO.19133 OF 2003 - 2 - 2. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PATHANAMTHITTA. ADV. SRI.C.C.THOMAS, SC, K.S.E.B FOR R1 TO 3 SRI.P.SANTHALINGAM, SC, KSEB FOR R1TO3 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.19133 OF 2003-C APPENDIX PETITIONERS EXHIBITS: EXT.P1 COPY OF B.O.NO.EA-IV/16121/78 DATED 6.9.1978 EXT.P2 COPY OF JUDGMENT DT.5.7.1998 IN O.P.NO.6101/83 EXT.P3 COPY OF B.O.NO.PSI-84/88(51)(A) DATED 3.11.1989 EXT.P4 COPY OF RELEVANT EXTRACTS OF THE SETTLEMENT DATED 19.4.1990 EXT.P5 COPY OF RELEVANT EXTRACT FROM LONG TERM SETTLEMENT DT.2.8.1995 EXT.P6 COPY OF RELEVANT EXTRACT FROM LONG TERM SETTLEMENT DT.11.8.2000 EXT.P7 COPY OF LETTER DT.JUNE, 2002 OF THE 3RD RESPONDENT EXT.P8 COPY OF LETTER DT.13.10.2000 OF THE CHIEF PERSONNEL OFFICER EXT.P9 COPY OF PAY BILL OF THE STAFF IN THE PROJECT AREA FOR THE MONTH OF AUGUST, 2003 EXT.P10 COPY OF LETTER WRITTEN BY THE EXECUTIVE ENGINEER DATED 18.12.2001 EXT.P11 TRUE COPY OF THE PAY BILL OF THE STAFF OF ELECTRICAL SECTION KAKKAD FOR THE MONTH OF JULY, 2007 / TRUE COPY / S.SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.19133 of 2003-C ------------------------------------------- Dated, this the 2nd day of March, 2009 JUDGMENT Petitioners are employees of the Kerala State Electricity Board claiming to be working at Electrical Section, Kakkad, Seethathodu, Vadasserikara. According to them, as per the 1978 long term settlement, with effect from 1.1.1975, the Board introduced an allowance called 'project allowance' to all employees working in Hydro Electric Project areas. By Ext.P1 the project allowance was extended to Vadasserikara, where the petitioners claim to have worked. However, in 1983 the same was denied to employees working at Vadasserikara. Some of the employees challenged the denial by filing O.P.No.6101 of 1983, in which by Ext.P2 judgment the employees were permitted to file a representation which was directed to be considered and disposed of by the Board. Pursuant to the same, Ext.P3 order was passed, whereby operation allowance and project allowance were unified and paid as project allowance at the rates fixed in Ext.P3. According to the petitioners in Exts.P4, P5 and P6 settlements, the claim of the employees for project allowance has been upheld and W.P.(C) No.19133 of 2003 2 therefore, the petitioners are entitled to project allowance. In the above circumstances, the petitioners seek the following reliefs: i) issue a writ of certiorari calling for the records leading upto Ext.P7 and P8 and quash the same as illegal, ultravires and in violation of Ext.P4, P5 and P6 long term settlements as also Ext.P1 and P3 Board Orders. ii) issue a writ of mandamus/prohibition directing the respondents not to effect any recovery from the salary of the petitioners on account of any alleged ineligible payment of project allowance for the period October 2000 to November 2001 or for any other period. iii) issue a writ of mandamus directing the respondents to continue payment of project allowance to the employees of Vadasserikara Electrical Major Section including the petitioners as also to effect the payment of arrears of project allowance remaining unpaid since November 2001 with interest therein till the date of payment.” 2. Originally in 2004, a counter affidavit has been filed on behalf of the Board stating that since the Kakkad Hydro Electric project under which Vadasserikara office comes, has been commissioned, project allowance is longer payable as the Kakkad Electrical Section has ceased to be a project area, on commissioning of the project. When the petitioners pointed out that other employees at Kakkad Hydro Electric Project are still being paid project allowance, I passed the following interim W.P.(C) No.19133 of 2003 3 order on 30.1.2009: “The issue involved in this original petition is whether the petitioners in the original petition who are working in the Electrical Major Section, Kakkad are eligible for project allowance. In the counter affidavit originally filed, the respondents took the contention that since Kakkad Hydro Electric Project had been commissioned long ago, the same ceased to be a project area and therefore no project allowance is payable to employees working in Kakkad Electrical Section. But, in the additional counter affidavit filed, it is stated thus in paragraph 4: “It is humbly submitted that as regards Exhibit P9, detailed bill of the staff of Electrical Section, Kakkad for the month of 7/2007, project allowance is paying as per the long-term settlement dated 28.02.2007. As per the long term settlement, it is specifically stated that workmen who are posted to work in the Electrical Distribution sections in the project areas are eligible for the project allowance. As the Electrical Section, Kakkad is situated in the project area, employees of that office are paying project allowance since from 2/2007 onwards.” This stand of the Board appears to be contradictory. In any case, admittedly, the Kakkad Hydro Electric Project had already been commissioned. Of course, the petitioners would contend that some expansion work is in progress. Even then, once the project has been commissioned, prima facie, I am of opinion that project allowance, which is only payable to employees working in the project areas, is not liable to be paid. But the petitioners have produced Ext.P9, which shows that project allowance is still being paid in Kakkad Electrical Section. If the Kakkad Project area is not actually a project area now, then the payment of project W.P.(C) No.19133 of 2003 4 allowance itself to employees which is being continued even now, is clearly against the interest of the Board and is unsustainable. In view of this contradictory stand in the two counter affidavits, I am of opinion that the 2nd respondent Chief Engineer should file an affidavit of his own before this Court as to the stand of the Board in the matter as to whether the Kakkad Electrical Section is in a project area and whether employees working in Kakkad Electrical Section is entitled to project allowance. The affidavit shall be filed on or before 6.2.2009. Post on 9.2.2009 in the weekly list.” 3. Now the Chief Engineer explains that it is pursuant to the 2007 settlement that this is being paid. This is disputed by the learned counsel for the petitioners. 4. I have considered the rival contentions in detail. The nature of the 'project allowance' has been elaborately explained in paragraphs 4 to 7 of the counter affidavit dated 21.2.2004 filed on behalf of the first respondent, which read thus: “4. It is submitted that the benefit of project allowance payable to workmen and officers working and residing in the Hydro Electric Project areas was not introduced as per the Long Term Settlement 1978. The above benefit was existing before the Long Term Settlement of 1978. Normally the project areas are situated in remote areas. Basic amenities are inadequate and medical and education facilities in those areas are poor. The employees have to work in adverse climate conditions in the project areas. In order to W.P.(C) No.19133 of 2003 5 compensate the above situations the employees were give project allowance. When the project work is completed, the employees are no longer required to work in adverse conditions and therefore there is no necessity to continue the payment of project allowance. During the course of the construction work, the medical, educational and conveyance facilities etc. will improve considerably and after completion of the project, the area will be a developed place having all the amenities of a township. An example for the above is Vadasserikkara itself. Project allowance is payable in compensation of the adverse conditions connected with the project work and once the project work is completed there is no necessity to pay project allowance. 5. It is submitted that the KSE Board issued order No.EB1/3326/71 dtd.18/11/71 prescribing the conditions for the payment of project allowance. As per the above order project allowance/special project allowance will be admissible till the completion of the 1st stage of a project. After the commissioning of the last productive units of the 1st stage of the project, the project operation allowance alone will be paid to those who are eligible for such allowances. Operation allowance is normally given to the staff attached to the Generation Division. 6. It is submitted that the Board had ordered payment of project allowance to those residing and working in Vadasserikara vide B.O.N.EA.IV.16121/78 dtd.6/9/1978, considering the fact that Vadasserikkara Electric Project came under Kakkad Hydro Electric Project area. Now Kakkad Hydro Electric Project is commissioned. Hence as per the conditions prescribed for payment of project allowance, project allowance is no longer payable to the staff working and residing in the Kakkad Hydro Electric Project area, including Vadasserikkara. The Board had acted W.P.(C) No.19133 of 2003 6 only in terms of the position explained above and given directions to discontinue the payment of project allowance to the employees working in the offices situated in Vadasserikkara, after the commissioning of the Kakkad Hydro Electric Project. 7. It is submitted that the Board has revised the amount of project allowance and operation allowance from time to time but it is only a part of the revision of wages and allowances of Board employees effected through various Long Term Settlements reached between the Board and the representatives of the Trade Unions functioning in the Board. The above pay revisions do not contain any provision for revival of payment of project allowance in areas where the same has been discontinued consequent on the commissioning of the concerned project. Hence directions for discontinuance of project allowance to ineligible employees cannot be construed as modifications of conditions of service incorporated in the Long Term Settlement. The employees working in the Ele. Major Section, Vadasserikkara are not engaged for any project work. The work performed in Electrical Major Sections is connected with the distribution of power. It was specifically laid down in order no.E16.8301/49/PWC dtd.29/5/1951 vide cl.4 that project allowance will be given only to those actually engaged in project works. The works performed by the employees in Electrical Major Section, Vadasserikkara are the same as performed in any other Electrical Major Sections in Kerala and they cannot claim any preference in this regard. The petitioners are not entitled to any of the reliefs claimed in the above W.P.” 5. Respondents themselves submitted that Kakkad Hydro Electric Project has been commissioned in 1999. W.P.(C) No.19133 of 2003 7 Therefore, going by the reasoning given in their counter affidavit dated 21.2.2004, project allowance cannot be paid to employees of the Kakkad Hydro Electric Project after the same was commissioned. The contention now raised is that project allowance is being paid in accordance with the 2007 settlement. A copy of the long term settlement of 2007 has been made available to me for perusal. In Article IX(iv) thereof it is stated thus: “Project Allowance Will be revised from Rs.130/- per month to Rs.135/- per month to those who are engaged in Project areas. Project Allowance at a higher rate of 125% of normal rates will be paid only on completion of 3 years of continuous service in the project area.” (underlining supplied) Going by the same also project allowance is payable only to those who are engaged in project areas. Going by the affidavit of the first respondent, once a Hydro Electric Project is commissioned, it ceases to be a project area. In that view of the matter, I am of opinion that even under the 2007 settlement no project allowance is payable to any employee of the Board unless he has worked in a project area. Admittedly in this case the petitioners claim project allowance for having W.P.(C) No.19133 of 2003 8 worked in the Kakkad Hydro Electric Project subsequent to 1999. Admittedly, the Kakkad Hydro Electric Project has been commissioned in 1999. That being so, after 1999 no project allowance could be legally paid to any employee of the Offices which have come into existence on commissioning of the Kakkad Hydro Electric Project. In the above circumstances, I do not find any merit in the writ petition. Writ petition is accordingly dismissed. 6. But the learned counsel for the petitioners points out that it is discriminatory that while others are being paid project allowance, the petitioners alone are being denied. I find merit in that contention. Therefore, I direct that if any project allowance has been paid to any employee working under the Kakkad Electrical Section including Vadasserikara after 1999, the same is unsustainable and liable to be recovered, for which the respondent shall initiate appropriate action. If for any reason it cannot be recovered from any employee who has received the same, the same shall be recovered from the officers who are responsible for paying the same. Proceedings for the same shall be initiated and completed after complying with all formalities within four months from the date of receipt W.P.(C) No.19133 of 2003 9 of a copy of this judgment. 7. Before parting with the case I would like to express strong disapproval of the stand taken by the Chief Engineer (HRM) in his affidavit dated 3.2.2009 justifying payment of project allowance to workmen in the Electrical Distribution Section. This is what he states in paragraph 2 thereof: “I submit that the project allowance for the Electrical Section Offices which is under the project area was discontinued as per the direction of the Chief Personnel Officer, K.S.E.Board following the Report of the Accountant General of India. It has been observed in the Audit Report that in the Electrical Section, Vadaserrikara coming under the Electrical Division, Pathanamthitta, project allowance was being paid to the employees though the nature of work and the area of location of office did not allow such payment. The work performed by the employees in the Electrical Section, Vadaserrikara are the same as performed in any other Electrical sections in Kerala and they can not claim any preference in this regard. Accordingly it was stopped with effect from 12/2001 onwards. No project allowance was paid to the employees of Electrical sections in Kakkad and Vadaserrikara from 12/2001 onwards. In the long Term settlement 2007 item (c) under the Note Annexure V (Project allowance/Operation Allowance) it is specifically stated that “workmen who are exclusively posted to work in the Electrical Distribution Section in the project area will also be eligible for this allowance at the mentioned rate”. Hence the project allowance was re-instated with effect from 2/2007 only to those officers under the project area. Since the W.P.(C) No.19133 of 2003 10 Electrical Section, Kakkad is situated within the project area, the employees of Electrical Section, Kakkad are drawing project allowance with effect from 2/2007. But employees of Electrical Section, Vadaserrikara are not eligible for project allowance as per the above settlement Clause since Electrical Section Vadaserrikara does not come under the project area.” The portion quoted by the Chief Engineer also speaks only about workmen posted in 'project area'. As such, on the basis of the same also no project allowance could have been paid once the project has been commissioned. The Chief Engineer should bear in mind that the money of the Board which is public money cannot be freely distributed among the employees by wrongly quoting a settlement. When the project allowance is payable only to employees working only in project area, the Board cannot even enter into a settlement with the employees to pay project allowance to employees who are not working in a project area, especially when project allowance is being paid taking into account the difficulties of employees working in a project area which difficulties cease to exist after commissioning of the project, the object of which has been elaborately explained in the counter affidavit dated 21.2.2004. The Chief Engineer would do well to remember that it is public money that is being irregularly paid by such indiscretions and that it is his W.P.(C) No.19133 of 2003 11 bounden duty to prevent such illegal payments especially since the same has to be ultimately borne by the poor consumers of electricity who are already overburdened by the ever increasing cost of electricity. S.SIRI JAGAN, JUDGE vns