Case: Damodar Valley Corporation Vs. Workmen

1. In this appeal by special leave, the question that arises for consideration is the correctness of the award of construction allowance to the operational staff.2. By its order dated June 1, 1967, the Central Government referred for adjudication to the National Industrial Tribunal, Calcutta, various disputes. We are concerned in this appeal only with dispute No. 5 (a) namelyconstruction allowance be payable to any categories of regular employees for extension of existing projects after the operation stage has commenced? If so, to what extent and to which categories of regularunions claimed payment of construction allowance to the operational staff also while the management contested their claim. The Tribunal by its award dated January 27, 1968, in Reference No. NIT-2 of 1967 has held that construction allowance should be payable to all categories of regular employees at any station where work of extension of the existing project, after the operation stage has commenced, is going on i.e., at any station where there is both construction work and operational work. The Tribunal has further directed such payment to be made uniformly to all categories of regular employees posted at that station, including school teachers and welfare centre workers. According to the directions given by the Tribunal, construction allowance is payable to all categories of regular employees who are posted at any station where both construction work and operational work are being carriedworkmen were represented by two unions, D. V. C. Staff Association (hereinafter to be referred to as the Association) and D. V. C. Karmachari Sangh (hereinafter to be referred to as the Sangh). In Paragraph 51 of its written statement dated September l 9, 1967, the Association statesthe construction allowance was introduced by the Corporation in the year 1952 and the same was being given to the workers who work in the construction divisions only. The rate of C. A. was 20% of pay subject to a maximum of Rs. 100/-." The Sangh in its written statement dated October 7, 1967, has stated that the construction allowance was introduced in the year 1952 and that the same is given to those workers who work in construction divisions. In paragraph 16 of the written statement it has stated :"That the chart marked Annexure B will show at a glance which categories of workmen and at what stage of work and under what circumstances become entitled to the construction allowance and at whatAnnexure B to the written statement, the Sangh had given the particulars regarding the categories of workers who were being given construction allowance, as well as the rates at which such workers were getting. It had also given particulars regarding the category of workers who were not getting the construction allowance. It is only necessary to refer, in this Annexure B, to the workers coming under items (a), (c) and (d) as well as the noteBCONSTRUCTION ALLOWANCECategory of WorkersRateStage and circumstancesa. All workers borne on regular Establishment.20% of pay.Workers get construction allowances from the very beginning till the operation stage.b. x.xXc. Workers of common services, such as security staff, Hospital staff, staff of Inspection Bungalow and others.20% of pay.These workers continue to enjoy the benefit of construction allowance at all the stages.d. Schools staff, welfare Centre staff, etc.NilThey cease to get construction allowance after the commencement of secondary stage.e.: Construction camp (for the purpose of construction allowance) means all camps which have been specifically set up by the D. V. C. for construction work and where such work is either due to start or is in progress. They will cease to be considered as "Construction Camps" as soon as the construction work has been completed.It is to be noted that in Annexure B, the Sangh had categorically stated that the workers of common services, such as security staff, hospital staff, staff of inspection bungalows and others were getting the construction allowance at all stages, whereas the school staff, welfare centre staff, etc., ceased to get the construction allowance after the commencement of the secondary stage.11. The appellant filed its written statement on December 2, 1967. In paragraph 46, it has met with the allegations contained in paragraphs 51 to 53 of the Associations written statement. It has averred that the construction allowance is intended to compensate the employees, at construction camps, when construction of a project has commenced in rural or hilly areas without any of the amenities of a town -ship, for the deprivation of such amenities. The appellant has further stated that the employees engaged in the operation of a project, after it has reached the operational stage, are not justified in claiming any construction allowance. It has further pleaded that the allowance is withdrawn in the course of two years to avoid hardship to the employees, who cease to be in the construction camps. Here again it will be seen that the case of the appellant is that the construction allowance is paid only to those employees who are in the construction camps, that is the site where the construction work is going on. It is only then that those employees will not be having the amenities of a township because the construction site will be in a rural or hilly area.12. There is a reference to Annexure B in paragraph 50 of the appellants written statement. A major part of that paragraph deals with some of the averments made by the Association. With regard to Annexure B, it is statedis denied that the claims made by the employees in Annexure B to the said statement should be granted in full or at all or with retrospective effect or at all or that any part of them should be granted as claimed or at all."

Reasoning: From the circular of 1953 it is clear that the eligibility for receiving construction allowance is that the employee should be stationed at a construction camp, unless he comes under clause (b) of paragraph 1. Prima facie these two circulars give importance to the employee being at a particular place where he is discharging an arduous and exacting nature of constructionlearned Attorney-General is right in his criticism that these two witnesses have not said anything in their evidence about Annexure B. But, in our opinion, that does not absolve the appellant, who is in possession of all information regarding the matters mentioned therein, from placing the necessary materials before the Tribunal to show the distinguishing and differentiating features of the two categories of workmen coming under items (c) and (d). We have already referred to this fact that Annexure B was before the Tribunal as early as October 7, 1967. The appellant filed its written statement only on December 2, 1967.Except a bald denial regarding Annexure B the appellant has not assisted the Tribunal by placing before it details or particulars such as the nature of work, the place where the work is being done other relevant factors regarding the eligibility of the particular group of workmen under category (c) to get construction allowance. Nor has the appellant placed any such material regarding the non-eligibility for construction allowance of the workmen coming under category (d).The appellant, who is in possession of all facts, has furnished no information regarding the distinction between the workmen coming under the two categories. The material part of the evidence of MW-1 has already been referred to by us. He has stated that the regular employees, who are at the construction site or who are posted at their headquarters, but have to visit the construction site during the process of construction, are paid construction allowance. That witness could have very well referred to the different types of work, if any, done by the employees coming under categories (c) and (d) of Annexure B. No such evidence has been furnished by that or any other witness. He has also admitted that at the same station a time will come when there are two sets of employees, some connected with the construction work of an extension project. The point to be noted from this evidence is that when the above two types of employees are posted at the same station, both of them will be having the benefit of the civic amenities provided at that station, because, even according to the appellant, by the time the operational stage is reached, full civic amenities are already provided.For instance, according to the respondents, the entire Hospital staff coming under item (c) in Annexure B get construction allowance. This has not been controverted by the appellant. Nor is it case of the appellant that the Hospital staff, referred to earlier, is stationed at the construction site.It is not even in the case of the appellant that the Hospital staff is covered by clause (b) of paragraph 1 of the circular of 1953. In fact the appellant, except making a general denial, has not cared to place any material before the Tribunal regarding the location of the Hospital and its staff. It was faintly suggested by the Attorney General during the argument that a Doctor now and then visits the construction site to attend employees who may require medical assistance. We will assume that it is so. Even then, according to the circular, the said Doctor cannot get construction allowance, as he is not stationed at the Doctor for the moment, there is no justification for the entire staff of the Hospital being paid the said allowance. Even the plea made regarding the Doctor, has not been advanced before us regarding the remaining staff of theappellant has neither pleaded not established any factors distinguishing the school staff coming under item (d) from the Hospital staff referred to in item (c) of Annexure B. If so, it follows that when the employees under item (c) are paid construction allowance, it stands to reason that the employees under item (d) should also get the said allowance, when both of them are posted at the same place.22. In view of the materials on record, in the our opinion, the Tribunal was justified in holding that the employees, who are posted at the same station, some doing construction work and others operational work , will both be entitled to construction allowance, as the two sets of employees have to be treated and paid