^ ^~^'^^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH WRIT PETITION N0. -5^ 7 OF 2004 ^/ ./' PETITIONERS 1. Satyanand Kao'hhap, S/o Jaguru Ram, aged 38 Years, 2. Raji Chandy S/o Late Shri T Chandy, Aged about 40 years 3. G.S.Ogare, S/o Sri B.R.Ogare aged 40 years 4. R. K. D^-tmond, S/o Shri J. Diamond, aged 39 Years, 5. H. Kujur, S/o Late J. Kujur , M^^^lj ^>^' <? ^: ^" .-;°*" ^' ^•~ {^y> ...%^"" ^^^•' V-A^^U .vv>-' 6. S. K. Dahare, S/o Late Ramadhar, aged 38 years, 7. I. Ekka, S/o Shri Philmon Ekka, aged about 38 Years, 8. S Kumar, S/o Late Samuel Kujur, aged about 39 Years, 9. K. L. Gendre, S/o Late G. R. Gendre^aged about 40 Years, 10. A. Xoxa, S/o Shri Pius Xaxa aged about 46 years, ll.L. P. Ratre, S/o Late S. R. Ratre, aged about 42 years, 12. B. Singh Sori, S/o Late Lok Singh Sori, aged ^Q Years, 13. R. L. Banerjee, S/o Late Shri M.S.Banerjee, aged 38 Years, 14. J. R. Kathle, S/o Shri Maya Kathle, aged about 36 years, 15. B.K.Panna,S/o Shri P.Panna aged about 40 yeors, 16. Silvester Tir^ey, S/o Late Simon Chungru,aged 40 yrs 17. L. Jhalariya, S/o Late D. R. Jhalariya, aged 43 Years, ~^ / 18. K. K. Gavel, S/o A. P.Govel aged about 36 years, 19. Umesh Singh, S/o Ramdev Singh, aged about 39 years 20. D. D. Vishwakarma, S/o Dukhi Ram Vishwakarma Aged about 40 years, 21. R.S.Kanwar, S/o Shri Kunj Ram Kanwar, aged about 37 years, 22. L. S. Chandrakar, S/o Late I. R. Chandrakar, aged about 36 years, 23. R. K. Angare, S/o Shri Shivan Angare, aged about 36 years, 24. Silvarius Tirkey, S/o Shri Simon Tirkey, aged 42 yrs., 25. R. R.Kaushik, S/o Late I R Kaushik, aged about 41 Years, 26. A. K. Ramteke, S/o Shri Hira Lal Ramteke, aged About 44 years, 27. P. Tigga, S/o Late M. Tigga aged about 41 years, All the above petitioners are Working in National Thermal Power Corporation Limited and are residents of the Township, Jamini Pali, Korba District Korba [Chhattisgarh] VERSUS RESPONDENTS 1. National Thermal Power Corporation Limited, a Govt. of India Enterprises, Through its Chairman & Managing Director, Scope Complex, 7, Lodhi Road, NEW DELHI 2. General Manager, National Thermal Power Corporation P. O. Jaminipali, Korba, District Korba, [Chhattisgarh] ® WRIT PETITIQN UNDER ARTICLE 226/227 QF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORARI, MANDAMUS PROHIBITION AND OTHER SUITABLE WRIT OR WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS: ^ '--; HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Writ Petition No.2072 of 2001 K.P. Chandrawanshi and nine others - Versus - National Thermal Power Corporation Limited and two others Writ Petition No.2087 of 2001 BALCO Captive Power Plant Mazdoor Sangh and another - Versus - National Thermal Power Corporation Limited and three others AND Writ Petition No.557 of 2004 Satyanand Kacchap and 26 others - Versus - National Thermal Power Corporation Limited and another ORDER FOR CONSIDERATION Sd/- L.C. Bhadoo Judge HON'BLE SHRI JUSTICE FAKHRUDDIM- ^- C^YC? Sd/- Fakhruddin Judge POST FOR ORDER ON^-H^-MARCH. 2004 8d/- L.C. Bhadoo Judge \/ "ft-^^ HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Writ Petition No.2072 of 2001 K.P. Chandrawanshi and nine others - Versus - National Thermal Power Corporation Limited and two others Writ Petition No.2087 of 2001 BALCO Captive Power Plant Mazdoor Sangh and another - Versus - National Thermal Power Corporation Limited and three others AND Writ Petition No.557 of 2004 Satyanand Kacchap and 26 others - Versus - National Thermal Power Corporation Limited and another Present: - Dr. N.K. Shukla, Senior Advocate with Mr. Shailendra Shukla, Advocate: Mr. Dhirendra Mishra, Advocate: Mr. Manindra-Shrivastava and Mr. Sanjay K. Agrawat, Advocates: Mr. Vivek Tankha, Senior Advocate with Mr. Prashant Jayaswal, Mr. P.C. Sen & Mr. H.K. Upadhyay, Advocates; Forthe petitioners in W.P.No.2072/2001 Forthe petitioners in W.P.No.2087/2001 Forthe petitioners in W.P.No.557/2004 For the respondent/BALCO. Mr. LN. Rao, Additional Solicitor General oflndiawith Mr. P.S. Nair, Senior Advocate; Mr. V.K. Rao, Mr. P.S. Koshyand Mr. Raj Kumar Gupta, Advocates: For the respondent/NTPC DIVISION BENCH: - Hon'ble Mr. Fakhruddin and Hon'ble Mr. L.C. Bhadoo, JJ. •^t^i^^^^^^^^^ ORDER (Passed on ZStk March. 2004) The followina order of the Court was passed bv Justice L. C. Bhadoo: - 1. These three writ petitions relate to the same issue. Therefore, they are being disposed of by this common order. 2. Writ Petition No.2072 of 2001 has been fited by ten individual non-executive officiats working at BALCO Captive Power Plant. Similarty, Writ Petition No.557 of 2004 has been filed by 27 non-executive officials working at BALCO Captive Power Plant, whereas Writ Petition No.2087 of 2001 has been filed by BALCO Captive Power Plant Mazdoor Sangh and BALCO Tap Vidyut Karmachari Sangh on behalf of the non-executive officials working at BALCO Captive Power Ptant. 3. By these writ petitions the petitioners have raised grievance against the action of respondent No.1 i.e. Nsitional Thermal Power Corporation Limited (for short 'NTPC1), whereby the services of non-executive offtcials numbering in round about 236, is being permanently placed at the disposal of Bharat Aluminum Company Limited (for short 'BALCO'). BALCO was a public undertaking Company under the Government of tndia. But in the year 2001, the. Government of India decided to disinvest the said project and further decided to transfer 51 % shares to M/s. Sterlite as a result of which the entire management of BALCO as well as BALCO Captive Power Plarit (for short 'BCPP') had vested with M/s. Sterlite under agreement dated 20th June, 2002, with effect from 1st July, 2002. 4. The relief sought in these petitions are; it be declared that the petitioners as well as all persons who are working presently in BCPP, are employees of NTPC; further to restrain the respondents to transfer the services of petitioners as well as other persons who are working in BCPP to the management of BALCO; and the respondent NTPC be further directed to accommodate each and every employee in new'y constructed projects at Seepat, Simhadri or any other projects existing or proposed. It is fuither sought to declare that clause 8.2 and other terms of agreement dated 22,05.1990 entered into between the NTPC and BALCO, are not binding on the petitioners; to quash the decision or action of the respondents to transfer the services of the petitioners to the new management of BALCO; and to issue a writ of mandamus restraining the respondents from doing any act in furtherance of their decision to transfer the services of the petitioners to the new management of BALCO. In Writ Petition No.2087 of 2001, apart from the above reliefs, it has been prayed that clause 16 (3) read with clause 8 of the agreement dated 22.05.1990 be declared illegal, arbitrary and un-enforceable against the non-executive workers of the respondent as it unilaterally changes the service conditions of all those employees who were not a party to the said agreement; and the respondents be restrained from enforcing the above clause and thereby transferring the non-executive Workers working under BCPP to the management of BALCO from NTPC. 5. The case of the petitioners is that the petitioners were enrotled in the Employment Exchange, Korba, and when the NTPC, Korba Super Thermal Power Project, asked to supply the names of the unemployed Artisan (Trainee), their names were sent to NTPC, Korba Super Thermal Power Project. On 26.07.1987, NTPC conducted a written/trade test for the post of Artisan Trainee (Fitter)/(Electrician) and the petitioners appeared in the test on the appointed date, time and venye. The petitioners received appointment orders duly signed by the Deputy General Manager (P & A), Korba Super Thermal Power Project of NTPC. In these appointment orders it is categorically stated that the terms and conditions of appointment of all the petitioners are same. The petitioners were required to undergo training for a period of one year and they were also required to submit indemnity bond on the stamp of Rs.55/- to remain in the services of NTPC or any other department or undertaking of Government of India, for at least thre^ years. On completion of their training, the petitioners received the certificate of completion of training. The petitioners' appointment order contains in its heading, "National Thermal Power Corporation Limited, Government of India Enterprise, BALCO Captive Power Plant". In condition No.16, it was mentioned that their appointment will be against the post sanctioned for BALCO Captive Power Plant/Station which is presently under the management of National Thermal Power Corporation Limited and in case at a later date it is decided by BALCO to directly manage the Plant/ Station or transfer its management to some other existing or new organization (called successor organization) then their post and sen/ices will stand transferred to BALCO or such successor organization as the case may be. 6. The petitioners are working with NTPC, which was managing the BALCO Captive Power Plant. However, the Government of India decided for disinvestments of BALCO, which resulted into conversion of BALCO public sector enterprise to private sector enterprise and the existing management decided to manage the BALCO Captive Power Plant by themselves. In view of this changed scenario, the petitioners who were appointed by the NTPC should be posted to other Projects of NTPC. Apart from Diploma Trainees, the respondents have ^lso appointed Junior Foreman for BALCO Captive Power Plant, a few such appointees are Vijay Bahadur Singh, S,C. Singh and V.P. Verma. In other appointment orders similar conditions were mentioned. Vijay Bahadur Singh has been transferred to SPCL-Bhilai Steel Plant, and S.C. Singh & V.P. Verma are working at Vindhyachal Super Thermal Power Project. Chhotelal Sahu was appointed by NTPC for Korba Super Thermal Power Project and posted in BALCO Captive Power Plant in the identical terms as that of the petitioners. However, he has been transferred to Simhadri Project. The persons whowere appointed along with the petitioners and having jdentical terms and conditions were treated by the respondents as their own employees and posted in other Projects run by the NTPC. 7. BALCO entered into an agreement of construction of Captive Thermal Power Station for their aluminum comptex at Korba with NTPC on 30 July, 1984. Again BALCO entered into an agreement on 22.05.1990 with NTPC, which is known as BCPP O & M Agreement. Copy of the same is Annexure P-9. • In view of clause 8.2 of the said agreement, recruitment of non- executive staff (super/isory and workmen) was undertaken by NTPC specifically for BCPP as per NTPC's recruitment norms and policies. It was further made clear that the staff shall be governed by the NTPC's policies, rules and regulations and in the event of transfer of management from NTPC to any other agency, their sen/ices shall be transferable to the successor organization as per provisions of clause 16. Clause 16.3 of the said agreement envisages that in the event of transfer of management, BALCO shall ensure transfer to the successor organization of all non- executive staff recruited for BCPP as per provision contained in clause 8 and such NTPC executives posted at BCPP who are declared by NTPC as surplus to its requirements as a result of the transfer of management. Terms and conditions of such transfer shalt not be inferior to those enjoyed by the employees on the date of transfer. In case where such transfer is not found possible, BALCO shall be responsible for atl consequent liabilities including retrenchment compensation, if any. This agreement was entered into in the year 1990, but the date of enforcement was made retrospectively as on 29.06.1987. This agreement entered into between the two parties cannot be made retrospectivety in case it affects the rights and liabilities of the third person and the same was entered into between the two parties without any knowledge, much less consent or willingness ofthe employees. Therefore, the clauses relating to terms and conditions of employees are not binding nor can be enforced against the employees, unless they agree to such conditions. Further according tothe O & M Agreement, the management is due to transfer in the year 2012. However, BALCO and NTPC entered into an agreement on 20th June, 2002, proposing the transfer of management of BCPP by 1 July, 2002. Copy of the agreement is Annexure P-10. The petitioners are emptoyees of NTPC forever, otherwise, it is submitted, during the course of employment process, the respondent NTPC has not disclosed to the petitioners that they are employing the petitioners for and on behalf of BALCO as agent of the BALCO. Therefore, the O & M Agreement, i.e. the agreement to manage the BCPP on behalf of the BALCO, is not applicable to the petitioners. 8. In substance. the case of the petitioners is that all the non-executive employees were recruited by the NTPC, training was imparted by the NTPC, and in the appointment orders it was made clear that their service terms and conditions will be as applicable to the NTPC employees and further, in future their ser/ices may be transferred to any Project of the NTPC. Therefore, they are the employees of the NTPC and after disinvestment of the BALCO, their services cannot be transferred to the private sector organization BALCO, on the strength of the O & M Agreement dated 22.05.1990 and the subsequent agreement dated 20 June, 2002, entered into between the NTPC and the BALCO. 9. Return has been filed on behalf ofthe NTPC and BALCO. Their categorical stand is that the writ petition under Article 226 of the Constitution of India is not maintainable as the petitioners have not been able to show their legal right. In any case, contractual rights between the parties, if any, are also not enforceable under Article 226 or 227 of the Constitution of India. Highty disputed questions are involved which cannot be decided in a writ petition under Article 226. Provisions of the Madhya Pradesh Industrial Relations Act are applicable to BALCO & NTPC and the petitioners have efficacious •""T"' alternative remedy of approaching the Labour Court, if they so desire. NTPC's case is that NTPC is merely an agent of BALCO on a specific Power of Attorney given to them. The ownership of BCPP belongs to BALCO. Recruitment was made pursuant to an agreement exctusively for BCPP with specific undertaking from the non-executive employees. Non- executive employees joined employment knowing futly well the purported meaning of undertaking. The petitioners have no right to question the agreement between the BALCO and the respondents. The construction of BCPP was entrusted by BALCO to NTPC. The first unit of BCPP was commissioned on 28.06.1987 and the remaining three units were commissioned 2 % to 4 months duration from each other. As per the understanding between BALCO and NTPC which was given a formal shape through O & M (Operation and Maintenance) Agreement dated 22.05.1990 effective from 28.06.1987, the Operation and Maintenance of BCPP was also entrusted to NTPC. In order to carry out the Operation and Maintenance of BCPP, NTPC recruited required number of workmen and supervisors starting from the mid 1980's. The recruitment of these employees was for the limited purpose of carrying out the O & M of BCPP as long as management of BCPP remained with NTPC. The offer of appointment as well as the undertaking given by the employees specifically brings out the above fact. Besides, the O & M Agreement signed between NTPC and BALCO also makes it very clear that therecruitment made by NTPC is specifically for BCPP and in the event of transfer of O & M/ Management of BCPP to any other agency, the services of such emptoyees will be transferable to the successor agency. The ownership of BCPP wss never alienated and continued to stay with BALCO. BCPP was and is being managed by NTPC on behalf of its owner i.e. BALCO. It is being operated under the specific Power of Attorney. So the manpower of this plant is shown separately from the manpower of NTPC in its annual report. Similarly, the Balance Sheet and Profit & Loss Account statements of NTPC also do not include BCPP. So it is not another unit or division of NTPC. 10.The petitioners have totally misunderstood the action taken by the respondents. The BCPP is owned by BALCO. The BALCO, because of their lack of expertise, wanted the respondents to maintain the plant on behalf of BALCO. For this purpose necessary authorization was given and an agreement was entered into. In accordance with the agreement various administrative actions were taken and all those actions were taken for and f^>WV^^^W» on behalf of BALCO and not for NTPC. While recruiting people for BCPP and NTPC a common platform was made available. Due to oversight, certain lapses have crept into a few of the appointment tetters. Such letters have not been issued to other employees. This is confined to the particular ©mployeesand the petitioners cannot take the advantage of lapses in a few cases to apply the condition of that letter to others. The respondents have filed the appointment letters issued to BCPP employees which specificatly contain provisions for their transfer to BALCO if and when management of BCPP is taken back by BALCO pr any successor organization, which are Annexure R-1. These employees have also executed an undertaking, whichis Annexure R-2. In Annexure R-1, it is specifically written on the right hand corner of page-1 that the appointment is for BCPP. The petitioners deliberately not filed theappointment letters issued to hundreds of other non-executive employees of BCPP along with the undertaking executed by them at the time of joining that they understand their appointment is for BCPP, which is owned by BALCO. However, certain benefits given to the employees appointed to BCPP were to ensure that their sen/ice conditions would not be in any way inferior to the service conditions ofthe person employed in NTPC. So long as BCPP is managed by NTPC, it was thought just and proper and in the interest of equity and justice that these employees of BCPP managed by NTPC should also get similar service conditions. To avoid allegation of arbitrariness similar benefits were given. The Memorgndum of Understanding executed by the authorities gives no right or authprity to the non-executive employees to claim 'themsefves employees of NTPC. When there were similar service conditions, similar benefits were being given and therefore, MOU was entered into to avoid discrimination. Since, NTPC was looking after BCPP and they were supervised by NTPC this certificate was issued, When employees are even employed through an agent, similar standing orders are required to be issued. Annexure P-19 filed by the petitioners is misleading. J.R. Bharadwaj was, in fact, appointed for BCPP on his application against the circular notifying vacancies of BCPP. It is not correct to say that he has been transferred from the Korba Super Thermal Power Station to BCPP. The appointment tetter is Annexure R-3. It is denied that there was any relationship of employer and employee between NTPC and BCPP. Some of the non-executive employees of NTPC had been accommodated in BCPP on their personal request since vacancy for accommodating them existed at th.at time in BCPP. It is also denied that Baijnath Singh has been appointed in lieu of acquisition of his land by NTPC. He has been appointed by virtue of his fulfilling the requisite job specification and was found suitable for the post notified for BCPP. 11. As per clauses 8& 16 (3) of the agreement dated 22.05.1990 entered into between the NTPC and BALCO, since the petitioners were recruited and appointed for BCPP they can be transferred to BCPP which was made clear to the non-executive employees by mentioning in para 14 of majority of appointment letters that they are being appointed against the post sanctioned for BALCO Captive Power Plant/Station which is presently under the management of NTPC, In case at a later date if it is decided by BALCO to directly manage the Plant/Station or transfer its management to some other existing or new organization, then their post and services will stand transferred to BALCO or such successbr organization as the case may be. They will not have any option to remain on the rolls of NTPC. Once. BCPP owned by BALCO is taken over by the BALCO, the entire non- executive staff of BCPP will continue to remain in BCPP under the management of BALCO in term? of clauses 8 & 16.3 of the agreement. Once the plant is taken over, if the non-executive employees are not going to BALCO and if they are to be taken by NTPC, they will becomesurplus and NTPC will have no option except retrenchment. To avoid such contingency also, it is just and proper that the non-executive employees should go along with the plant. 12. Similar return has been fited on behalf of BALCO. 13.Additional return has also been filed on behalf of the NTPC. As far as NTPC is concerned each power station is an independent unit in the matters of non-executive. Recruitment of non-executives is made on the basis of requirement of the concerned project by the Head of the project and not by the NTPC Headquarters. Annexure R-4 is the recruitment policy. The seniority of non-executive employees is based on the posting in the establishment- itself and it has no connection with non-executive employees of any other establishment. Cadre of non-executive in each trade is within the power station only and there is no All tndia/AII Region based cadre. Non-executives are not transferred from one unit to another unit except on specific request by concerned employee. In case of vacancies in any unit which are required in other establishment also non- executive employees are free to apply against such vacancies. Transfers •^ take place only if the requisitioning unit finds the applicants suitable for the vacant position. The employee cannot seek transfer to another establishment or factory as a matter of right. Every employee who got employment in BCPP is fully aware that they are employed in the said establishment and they are not entitled to transfer to any other factory establishment of NTPC as of right. No employee in any NTPC establishment has any legal rightto be transferred to another unit. There is no transfer policy of non-executives. Therefore. the contention of the petitioners that services of non-executive employees are transferable is factually incorrect. The allegation of retrenchment is baseless. There is no retrenchment whatsoever. The employees are working with the same conditions of sen/ice at the same place at the same post under the same ownership that is BALCO. Neither the Union nor the workers can compel NTPC to continue the management. The answering respondent reiterates that there is no such transfer. The emptoyees working in one unit are entitled to apply for employment in another unit and if the other unit agrees it may take on their strength. It is not a right but a permission given looking into the fact of each case and employment in other power station given on their specific request. The employee who gives an undertaking is bound by that undertaking. Every unit is headed by an officer who is empowered with authority to recruit people for the Project. As a measure of goodwill, opportunity is given to employees working in another projects to apply for employment in the project and |f the applicants are found suitable new employment is given in that project. Employees of BCPP like employees in other NTPC Projects have also been given opportunity to make application for appointment and the new projects after examining all details, may give appointment, if found suitable. The allegations of the petitioners that the employees are sent from Public Sectors to Private Organization is totally baseless. In fact there is no transfer, Persons are appointed in the factory owned by BALCO. They remain in the same post with same place of posting. However, it was made clear to the petitioners that each individual concerned is appointed for BCPP. The petitioners