Case: Bcpp Mazdoor Sangh  Vs. N.T.P.C.

The appellants before us are employees recruited by National Thermal Power Corporation (for shortby calling for list of names from the employment exchange and appointed by following the procedure. When steps were being taken for transferring them to Bharat Aluminium Company Limited (for shortwhich was originally a Public Sector Undertaking under the Government of India, subsequently by policy of disinvestment the entire management had vested with M/s Sterlite under Agreement dated 20.06.2002 w.e.f 01.07.2002. Aggrieved by the decision of their transfer from a Public Sector Undertaking to private management, those employees approached the High Court of Chhattisgarh at Bilaspur by filing writ petitions seeking various reliefs. They mainly prayed for an order declaring clauses 8.2 and 16.3 of the agreement dated 22.05.1990 as illegal, arbitrary and unenforceable against them who are non-executive workers as it unilaterally changes the service conditions of all those employees who were not party to the agreement. In the same writ petitions, they also prayed that the respondents-Management be restrained from enforcing the said clauses and thereby transferring the non-executive workers working under BALCO Captive Power Plant (for shortto the management of BALCO fromcase of the appellants/employees is that they were enrolled in the Employment Exchange, Korba and when NTPC Korba Super Thermal Power Project asked to supply the names of Artisan (Trainee), their names were sent to NTPC. On 26.07.1987, NTPC conducted a written/trade test for the post of Artisan Trainee (Fitter/Electrician) and the appellants appeared in the test on the appointed date, time and venue. The appellants 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 appellants are same. They were required to undergo training for a period of one year and also required to submit indemnity bond on the stamp paper of Rs.55/- to remain in the service of NTPC or any other department or undertaking of Government of India, for at least three years. On completion of training, the appellants were issued separate appointment orders in the name of NTPC (a Government of India Enterprise) BCPP. The order further states that after their training, the appellants will be posted against the post sanctioned for BCPP which is under the management of NTPC 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 services will stand transferred to BALCO or such successor organization as the case maythey were working with NTPC, which was managing BCPP, the Government of India decided to disinvest shares of BALCO, which resulted into conversion of BALCO a public sector enterprise to private sector organization and the existing management decided to manage BCPP by themselves. In view of this, the appellants who were appointed by NTPC should be posted to other projects ofentered into an agreement of construction of Captive Thermal Power Station for their aluminium complex at Korba with NTPC on 30.07.1984. Again BALCO entered into another agreement on 22.05.1990 with NTPC. In view of clause 8.2 of the said agreement, recruitment of non-executive staff shall be undertaken by NTPC specifically for BCPP as perrecruitment norms and policies. It was further made clear that the staff shall be governed bypolicies, rules and regulations and in the event of transfer of management from NTPC to any other agency, their services shall be transferable to the successor organization as per provisions of clause 16.0. Clause 16.3 of the said agreement makes it clear 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 8.0 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. It also makes it clear that the terms and conditions of such transfer shall not be inferior to those enjoyed by the employees on the date of transfer. In cases where such transfer is not found possible, BALCO shall be responsible for all consequent liabilities including retrenchment compensation, ifsaid agreement entered into between the two parties cannot be made retrospectively in case it affects the rights and liabilities of the third person. The same was entered into between two parties without knowledge, consent and willingness of the employees. Therefore, these clauses are not binding nor can be enforced against the employees, unless they agree to such conditions. The appellants are employees of NTPC forever. Further during the course of employment process, NTPC has not disclosed to the appellants that they are employing them for and on behalf of BALCO as their agent. Therefore, the O & M Agreement i.e. Agreement to manage BCPP on behalf of BALCO is not applicable to thethe High Court, the managements, namely, NTPC and BALCO filed separate counter affidavit. According to them, the writ petition filed by the employees as well as their union under Article 226 of the Constitution of India is not maintainable as the appellants have not been able to show their legal right. In any case, contractual rights between the parties are not enforceable under Article 226 or 227 of the Constitution of India. Highly disputed questions cannot be decided in a writ petition under Article 226. Further, the provisions of the Madhya Pradesh Industrial Relations Act are applicable to BALCO and NTPC and the appellants have efficacious alternative remedy of approaching the Labourto NTPC, it 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 exclusively for BCPP with specific undertaking from the non-executive employees. Those employees joined employment knowing fully well the meaning of undertaking. They have no right to question the agreement between BALCO and NTPC. The construction of BCPP was entrusted by BALCO to NTPC. Apart from the construction work, 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 fromThe recruitment of these employees was for the limited purpose of carrying out the O & M of BCPP as long as the management of BCPP remained with NTPC. The offer of appointment as well as the undertaking given by the employees specifically bring out the above fact. Besides, the O & M agreement signed between NTPC and BALCO also makes it clear that the recruitment made by NTPC is specifically for BCPP and in the event of transfer of O & M of BCPP to any other agency, the services of such employees will be transferable to the successor agency. BCPP was and is being managed by NTPC on behalf of its owner i.e. BALCO which is being operated under the specific Power of Attorney. In view of the same, the manpower of this plant is shown separately from the manpower of NTPC in its annual report. The balance sheet, profit and loss account statement of NTPC also do not include BCPP, hence it is not another unit or division ofemployees have misunderstood the action taken by the respondents. The BCPP is owned by BALCO. The BALCO, because of their lack of expertise, wanted NTPC to maintain the plant on behalf of BALCO. Based on the agreement, various administrative actions were taken and all those actions that were taken for and on behalf of BALCO and not for NTPC. Due to oversight, certain lapses have crept into a few appointment letters and the appellants cannot take advantage of lapses in a few cases. These employees have also executed an undertaking and in all the appointment letters it is specifically written on the right hand corner of page 1 that the appointment is forper clauses 8.0 and 16.3 of the agreement dated 22.05.1990 entered into between NTPC and BALCO, since these employees were recruited and appointed for BCPP they can be transferred to BCPP which was made clear to them by mentioning in para 14 of majority of appointment letters. It was also made clear that 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 successor 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 BALCO, the entire non-executive staff of BCPP will continue to remain in BCPP under the management of BALCO in terms of clauses 8.0 and 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 become surplus and NTPC will have no option except to order retrenchment. To avoid such contingency, it is just and proper that the non-executive employees should go along with thedetails have been furnished in the counter affidavit filed on behalf ofcounter affidavit has also been filed on behalf of NTPC clarifying certain facts. It is reiterated that neither the union nor the workers can compel NTPC to continue the management. It is also reiterated that all the employees were aware of the fact that BCPP is owned by BALCO and NTPC is merely an agent to run the establishment for some time and notHigh Court, after considering the claim of both parties with reference to terms and conditions of the agreement after finding that the writ petition by the employees are maintainable and noting the terms and conditions, particularly, clauses 8.0 and 16.3, the undertaking of the employees accepted the stand taken by the management and dismissed all the writ petitions filed by the employees. In the same order, the High Court has also recorded the statement of the learned Additional Solicitor General, who appeared for NTPC that if any representation is made to the NTPC and if any vacancy in any of their projects is available, the same will be considered. Aggrieved by the dismissal of all the writ petitions, the union as well as the employees filed the above appeals.

Reasoning:
appointment orders were issued by NTPC and Rules, procedure in respect of probation, training, D.A. and other allowances, absorption in the regular scale, governed by certified standing orders and other Rules and Regulations of the company i.e., NTPC. Even in the appointment order, it had been specifically stated that in the event of their appointment, they have to execute service agreement in favour of NTPC or any other Department or Undertaking of Government of India for three years. It is not disputed that all the employees selected and appointed executed a service agreement as suggested in favour of NTPC. All the appointment orders were sent with the above referred specific conditions by the Senior Personal Officer, NTPC Korba Super Thermal Power Project, Bilaspur. Posting orders were also issued by NTPC. Perusal of agreements executed by the selectees clearly show that there is no reference that the said agreement is for and on behalf of the BALCO whereas it only refers NTPC. All the abovementioned factual details clearly support the case of the employees that they were selected and their services could be continued only at NTPC or any other public sector undertakings of Government of India. There is no iota of evidence or indication that they will be transferred to a private concern with less service benefitsClause 16.3 of the agreement dated 22.05.1990 makes it clear that non-executive employees are to be transferred to successor organization and there is no reference to executivese executives working in BALCO are to be transferred to other establishments of NTPC. Even though the non-executive employees are also having a special knowledge i.e., technicians, in the absence of any plausible reason retaining executives alone with NTPC and transferring non-executive employees to a private organization cannot be sustained and hit by Art. 14 of the Constitution of Indiae employees have made out a case for continuing their service in NTPCh the offending clauses in the agreement cannot be sustained and all employees are to be retained in