IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1387 of 2001. Reserved on: 18.11.2008. Decided on: 02.12.2008. National Hydroelectric Power Corporation Limited. … … … Petitioner. Versus State of Himachal Pradesh and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner: Mr. K.D. Shreedhar, Advocate. For the Respondents: Mr. Rajinder Kishore Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General for respondents No.1 and 2. Mr. K.D. Sood, Advocate for respondents No.3 to 8. Rajiv Sharma, Judge: This petition is directed against the award passed by learned H.P. Industrial Tribunal-cum-Labour Court, Shimla on 21.8.2001 in reference No.113/1997. Whether reporters of local papers may be allowed to see the judgment? No. - 2 - Brief facts necessary for the adjudication of this petition are that the State Government has made the following reference to the Labour Court:- “ÊEò CªÉÉ ¨É½þÉ ºÉÊSÉ´É SÉ¨Éä®úÉ ´ÉEÇòVÉ BÆ´É B¨{É±ÉÉ<ÇVÉ ªÉÚÊxÉªÉxÉ, ¤ÉxÉÒJÉäiÉ, ÊVÉ±ÉÉ SÉ¨¤ÉÉ, Ê½þ0 |É0 uùÉ®úÉ |É¤ÉxvÉxÉ SÉ¨Éä®úÉ VÉ±É Ê´ÉtÖiÉ {ÉÊ®úªÉÉäVÉxÉÉ (BxÉ BSÉ {ÉÒ ºÉÒ) SÉ®úhÉ-* b÷±É½þÉèVÉÒ ÊVÉ±ÉÉ SÉ¨¤ÉÉ ºÉä ¨ÉÉÆMÉ Eò®úxÉÉ ÊEò ºÉ´ÉÇ ¸ÉÒ +·ÉxÉÒ EÖò¨ÉÉ®ú KÉzÉÉ, +¨É®úxÉÉlÉ, ºÉÖ®äú¶É EÖò¨ÉÉ®ú ¶É¨ÉÉÇ, xÉ®äú¶É EÖò¨ÉÉ®ú ¶É¨ÉÉÇ, näùºÉ®úÉVÉ `öÉEÖò®ú, ®úÊ´É EÖò¨ÉÉ®ú iÉlÉÉ ÊiÉ±ÉEò ËºÉ½þ ´ÉCºÉÇ +ºÉÒºÉ]èõx]õºÉ OÉäb÷-I EòÉä ¨É<Ç 1985 ºÉä ºÉ½þÉªÉEò OÉäb÷-III Eäò {Énù {É®ú {ÉnùºlÉÉÊ{ÉiÉ {ÉnùÉäzÉiÉ ÊEòªÉÉ VÉÉB ´ÉèvÉ BÆ´É xªÉÉªÉºÉÆMÉiÉ ½èþ? ªÉÊnù ½þÉÆ iÉÉä =Hò 7 EòÉ¨ÉMÉÉ®ú ÊEòºÉ ®úÉ½þiÉ BÆ´É IÉÊiÉ{ÉÚÌiÉ Eäò {ÉÉjÉ ½éþ?” In sequel to the reference made by the State Government, respondents No.3 to 9 (hereinafter referred to as the workmen for convenience sake) filed statement of claim before the Labour Court. It was primarily contended by the workmen in the claim petition that they had been engaged as Workman Assistants in the pay scale of Rs.260-350 in the year 1981. However, the Management without considering the case of the workmen had filled-up 40 posts of Assistant Grade-III from the employees who had been earlier working in Baira Siul Project. Their further case was that the posts in question were required to be filled as per Rule 5.2 (II) of the Recruitment Rules (Annexure P-3). These posts were filled in the year 1985. Thereafter, the Management in the year 1986-87 appointed some muster rolled daily rated workmen as Assistant Grade-III without conducting test/interview. The workmen were not given any opportunity to be considered for appointment as Assistant Grade-III in regular cadre. They represented - 3 - their case before the Management, however, the same was rejected on 1st September, 1990. The Management had filed detailed reply to the statement of claim. The principal stand of the Management before the Labour Court was that 40 posts were filled on the basis of tripartite agreement and the suitability of the persons appointed was adjudged by holding a test. The further case of the Management is that the workmen had been afforded sufficient opportunity of appearing in the written tests, however, they had not chosen to do so with other 40 incumbents who were working in Baira Siul Project. The learned Labour Court on the basis of the pleadings of the parties had answered the reference in affirmative and directed the Management to appoint the workmen as Assistant Grade-III with effect from May, 1985 and to rank them senior to the officials who were appointed in the year 1985. Mr. K.D. Shreedhar has strenuously argued that the award dated 21st August, 2001 is not sustainable in the eyes of law. He has strenuously argued that 40 appointments were made to the post of Assistant Grade-III in Chamera Hydroelectric Project on the basis of tripartite settlement. He then contended that the respondents/workmen had also been given opportunity to appear in the typing/written test in the year 1984, October, 1987, December, 1988 and September, 1989. He further contended that only three workmen, namely, Amar Nath, Tilak Singh and Des Raj could qualify the typing test in the month of December, 1990. Mr. K.D. Sood had supported the award dated 21st August, 2001. - 4 - I have heard the learned counsel for the parties and perused the record carefully. Mr. K.D. Sood has drawn the attention of the Court to Annexure P-3. Rule 4 of these Recruitment Rules provides the sources of recruitment. Rule 4 reads thus:- “4. SOURCES OF RECRUITMENT: The posts under the Corporation shall be filled in by resorting to one or more of the following methods: (a) Direct recruitment from outside candidates who meet the prescribed specifications, subject to instructions issued by the Central Government from time to time. (b) Promotion of existing employees from the lower scales who meet the prescribed standard. (c) Through Employment Exchanges as per provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. (d) Deputation from Central/State Governments or Public Sector Enterprises. (e) Recruitment of persons declared as surplus by the Government and other Public Enterprises, etc., as per directives of the Central Government.” The direct recruitment from outside is to be carried out in the manner as per Rule 5.2, which reads thus:- “5.2 Direct Recruitment from Outside: When a post is to be filled in by direct recruitment, including recruitment from the sources indicated at - 5 - items (c) to (e) under rule 4 above, the governing principle shall be to secure the services of the candidates most suitable to the post(s). To achieve this objective, the method of recruitment shall be: (i) to invite applications by open advertisement giving full information regarding the nature and duties of the post, qualifications, experience and age limits, prospects of promotion and other relevant information. Ordinarily for each post, not less than 7 candidates from outside shall be called for interview. (ii) Where direct recruitment is resorted to, existing employees of the Corporation (including its Projects/Units) may also apply for the post(s) advertised in the Press, provided they fulfil the prescribed requirements. Relaxation in the qualification/experience of internal candidates may be considered by the Appointing Authority. (iii) to prescribe, where necessary, written competitive examination/test and/or oral examination by means of interview of candidates by a Selection Committee to be constituted by the Chairman/General Manager/Chief Engineer/Chief Project Manager/ Project Administrator depending upon the status of the post. (iv) the Selection Committee will arrange the names of the selected candidates in order of their merit and the Appointing Authority will make appointments in that order, unless for any special reasons, to be recorded, it is found necessary to vary that order in any particular - 6 - case. Panel of selected candidates (kept in reserve), which normally shall not exceed 50% of the number of advertised vacancies, will remain alive for a period of one year.” The recruitment on deputation is regulated under Rule 5.3, which reads thus:- “5.3 Recruitment by Deputation: When a post is to be filled in by deputation, no organisation will normally be approached to lend a particular officer by name, but such relevant particulars will be supplied to the concerned organisation as well enable it to suggest name/names of suitable persons for the post (s) in question. The deputation period will not normally be allowed to exceed the limits prescribed by the Bureau of Public Enterprises from time to time for various categories of posts. In the case of each deputationist, the management will decide within a period of one year from the date of appointment or at least 3 months before expiry of the deputation period, whichever is later, whether the deputationist has to be continued on deputation, absorbed or reverted. The retirement and other benefits such as Seniority, leave, Provident Fund, Gratuity, etc. to be allowed to deputationists on absorption shall be regulated as per the provisions in the “Guidelines for Absorption of Deputationists” appended as Annexure II to these rules.” Appointment by promotion is provided under Rule 5.4, which reads thus:- - 7 - “5.4. Appointment by Promotion: Rules relating to promotion of employees will be laid down separately by the Corporation.” The main contention of Mr. Shreedhar is that the posts in question were filled up on the basis of tripartite agreement. He has also referred to conciliation proceedings held on 1st October, 1984 between the Management of Baira Siul Project, N.H.P.C., Surgani, District Chamba, and the N.H.P.C. Workers Union, Surgani, District Chamba (Ex.R-C). He has also drawn the attention of the Court to Ex.R-D, letter dated 30.1.1985. The text of letter dated 30.1.1985 reads thus:- “Sub: Appointment of Work Assistants as Assistant Gr. III & II. Sir, On receipt of reference from Baira Siul Project the matter was examined in the Corporate Office and after detailed discussions, it was agreed that the work Assistants who are surplus at Baira Siul, will be considered for selection by Chamera Project against the post of Assistants. Only those work Assistants who have passed Matriculation/Higher Secondary examination& above will be considered for selection by Chamera Project. Preference will be given to those who are already working on clerical jobs in Baira Siul and possessing knowledge of typing at the prescribed speed. In the case of those who do not possess the knowledge of typing but were posted to clerical work at Baira Siul Project in various departments will be considered for selection without insisting on typing test. However, in their case, it will be essential for them to pass the written test to be conducted by the Chamera Project before being offered a job. - 8 - 1.1 Subject to fulfillment of above, the Work Assistants in the grade of Rs.260-350/- will be considered for selection as Assistant Gr. III in the pay scale of Rs.260-430/- and those Work Asstts. Who are in the grade of Rs.330-560/- and Rs.380-560/- will be considered for selection as Asstt. Gr.II in the pay scale of Rs.330-560/-. The basic pay as drawn by the individual concerned will be fixed at the appropriate stage in the pay scale of the post on which he is so selected and in case where such appropriate stage is not available, pay may be fixed at the stage below that, the difference being allowed as ‘personal pay’ to be absorbed in the next increment(s). In other words, the basic pay in the pay scales of regular post plus ‘personal pay’ if any, will not exceed basic pay last drawn by the employee concerned in the workcharged establishment. The annual date of increment will be the anniversary date of their appointment on the post of Assistant in regular cadre upon such selection. The seniority of these persons on selection as Assistant will be counted wef. the date of their joining at Chamera. In other words, they will rank junior to the persons already in position at Chamera in the respective category/designation. Upon such selection, they will be placed in the regular cadre and regulated by the rules as are applicable in the same designation/cadre at Chamera. 2. It is, therefore, requested that an internal circular may be immediately issued by the Chamera Project so that the Work Asstts. of Baira Siul, willing to be considered for the post of Assistant (in accordance with the decision communicated above) --- and after completion of necessary - 9 - selection procedures, as indicated above, appointment letters be issued by the Chamera Project to the concerned individuals, as selected upon the recommendations by a duly constituted Selection Committee at Chamera Project. The terms and conditions as indicated above should be clearly brought out in the appointment letter. 3. The employees in question so selected at Chamera will be entitled to transfer T.A. as is admissible to Corporation employees under the NHPC TA Rules. These employees will not be entitled to any retrenchment compensation. However, their EPF and leave accumulation will be transferred from Baira Siul to Chamera Project and the services rendered in the Baira Siul will be counted towards “qualifying service” for gratuity in continuation at Chamera. Necessary Action on above may kindly be taken at your earliest convenience. 4. This issues with the approval of Competent Authority.” It is evident from the language employed in Ex.R-D, letter dated 30.1.1985 that it was necessary for the candidates to be appointed as Assistant Grade-III to pass the written test to be conducted before offering them a job. It is apparent from Ex.R-G and Ex.R-J that no written test was conducted and the 40 posts were filled on the basis of interview alone. It is evident from the contents of Ex.R-J that the Committee comprising of Shri K.D. Sharma and Shri B.K. Bhardwaj had decided that the candidates who knew typing their proficiency in this trade was to adjudged and the candidates who did not know typing, general questions were to be asked from them connected with official working to know their proficiency. The total marks fixed were 20 and the candidates securing more than 10 marks were to be considered for regular cadre. It is, thus, evident that no written test was held and the - 10 - candidates who knew typing were put on type-writer to know their proficiency and for those who were not proficient in typing, general questions were put to them. RW-1 Shri Arun Kumar Kapoor has admitted that the Management did not circulate requisition for filling-up 40 Assistants since it was not part of the settlement. Seven workmen were not given any opportunity. It is further clear from his statement that tripartite agreement was only made between Baira Siul Project Workers Union and the Management and neither The Chamera Project Workers Union nor Chamera Management was party to the said settlement. In his cross-examination, he has further deposed that 40 persons were earlier working as Work-Charge Assistants in Baira Siul Project. They were recruited as Assistant Grade-III on regular basis in N.H.P.C. He has further admitted in cross-examination that it was correct that the workmen were also working as Work-Charged Assistants in Chamera Project since 1981. He has also admitted that before 1985 the workmen as well as the 40 persons were working as Assistant Work-Charged and were performing similar types of duties though in different projects. He has admitted that no advertisement was issued or requisition from the Employment Exchange was sought for. He has admitted that the Management has not appended all the type sheets of all the persons with the file though he had brought the record. He has admitted that for filling-up 22 posts no advertisement was issued for the recruitment except requisition sent to the Employment Exchange. He could not answer under which Recruitment Rules these twenty two persons were recruited. - 11 - It has come in Ex.R-D that in case of those candidates who did not possess the knowledge of typing but were posted to clerical work at Baira Siul Project in various departments were considered for selection without insisting on typing test. However, it was necessary for them to pass the written test to be conducted by the Chamera Project before being offered a job. It is, thus, evident that typing test was not a pre- requisite for those persons who were doing clerical work. According to Mr. Shreedhar there was tripartite agreement between the Management and the N.H.P.C. Workers Union in the presence of Conciliation Officer (Ex.R-C). It was decided that the surplus workmen will be considered for the posts of Assistants in regular cadre after they had qualified the test, but this was not approved by the Corporate Office at Delhi vide Ex.R-D. It was directed by the Corporate Office that the persons knowing the typing will be offered the post in the General Assistants. Accordingly, a test was arranged for accounts sections and 67 persons appeared in the test. Thus, it is clear that the typing test was not the only criteria and the persons who were proficient in clerical and administrative work, could also be considered without insisting on the passing of typing test. The workmen were not associated at the time when tripartite agreement was entered into between the parties. The workmen were necessary party since they had been working in Chamera Hydroelectric Project since 1981. The workmen had been discharging the same or similar duties as were being discharged by the forty persons who had been appointed from Baira Siul Project. It is clear from the phraseology of the Rules that the posts in question were to be advertised. It is not disputed that any advertisement was ever issued at the time of making forty appointments. Since the appointments were to be made in - 12 - Chamera Hydroelectric Project, the incumbents who had been serving in this project were to be informed specifically. It is evident that the Chamera Hydroelectric Project had not conducted any written test as per Ex.R-D. A Committee comprising of two Officers of the Management had decided a very peculiar system of evaluating the merits of the candidates who were to be appointed from Baira Siul Project. The Committee had decided that the persons who knew typing will be put on type-writer to know their proficiency in typing and the candidates who did not know typing, for them general questions will be asked connected with official working to know their proficiency. This method could be adopted for the workmen who were working in Chamera Hydroelectric Project as well. These persons have been deprived of their right to be considered against 40 posts which were filled up from the persons working in Baira Siul Project. The submission of Mr. Shreedhar that the workmen had been given ample opportunity to appear in the written test cannot be accepted. The workmen had not been given opportunity to be considered against these 40 vacancies which were filled from Baira Siul Project. These opportunities were granted to them, as noticed above, in the year 1984, 1987, 1988, 1989 and 1990 and not in the year 1985. These persons were similarly situate to the persons who were working in Baira Siul Project. The fact of the matter is that the workmen had not been informed about the posts being filled on the basis of some settlement in the year 1985. The Management had not followed the rigours prescribed in Annexure R-D for filling up the posts of Assistant Grade-III. If the workmen had been informed by issuing any notice or advertisement, they could also to be considered alongwith the persons - 13 - from Baira Siul Project. The Labour Court on the basis of correct appreciation of facts and circumstances in which the posts had been filled-up in Chamera Hydroelectric Project without considering the case of the workmen had come to right conclusion that they had been deprived of their right to be considered and appointed against the posts of Assistant Grade-III. It is settled law that the High Court under Articles 226/227 of the Constitution will not interfere in the findings recorded by the Labour Court unless and until the same are based on no evidence or are perverse. In view of above discussion, there is no force in the writ petition and the same is dismissed. There shall be no order as to costs. December 02, 2008. (Rajiv Sharma) (sck). Judge.