Full Judgment Text
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PETITIONER:
NATIONAL POWER TRANSMISSION CORPORATION LTD.
Vs.
RESPONDENT:
CORPORATE EXECUTIVE ASSOCIATION OF NTPC (CEAN)NEW DELHI AND
DATE OF JUDGMENT13/03/1992
BENCH:
PATNAIK, R.C. (J)
BENCH:
PATNAIK, R.C. (J)
VENKATACHALLIAH, M.N. (J)
CITATION:
1992 AIR 1425 1992 SCR (2) 234
1992 SCC Supl. (2) 283 JT 1992 (2) 344
1992 SCALE (1)670
ACT:
Constitution of India , 1950 : Article 226.
Formation of National Power Transmission Corporation-
Transfer of assets and employees of National Thermal Power
Corporation and other generating organisations-Petition
challenging transfer-Claim of equal pay for equal work by
employees recruited from National Thermal Power Corporation-
Direction by High Court at interlocutory stage,‘if employees
recruited from other Corporations receive higher emolument
then employees recruited from National Thermal power
Corporation should be treated on par’-Direction held
unjustified.
HEADNOTE:
The National Power Transmission Corporation (NPTC) was
incorporated on 23rd October, 1989. Governments of India
issued instructions regarding transfer of assets and
employees from other generating organisations to NPTC. The
National Thermal Power Corporation (NTPC) also issued a
circular in conformity with the Government’s instructions.
The respondent-association filed a writ petition in the
Delhi High Court, challenging the instructions and the
circular. Based on the under taking given by the Attorney
General the Division Bench f the High Court passed an
interim order directing that the NPTC should not recruit
persons from any source other than NTPC and if it recruits
employees from other Corporation, it should pay equal pay
for equal work i.e. in case the employees recruited from
other Corporation get higher emoluments doing the same
nature of work then the employees recruited from NTPC should
also be paid the same higher emoluments. NPTC filed an
appeal in this court challenging the interim order on the
ground that having regard to the scope of the writ petition
and the relief sought, the High Court erred in passing the
interim order.
Allowing the appeal, this court,
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HELD : The terms and conditions of service of employees of
National Thermal Power Corporation were protected in the
instructions issued by the Government of India and the
circular issued by the National Thermal Power Corporation as
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also in the undertaking given by the learned Attorney
General. The employees of National Thermal Power
Corporation on transfer-absorption were not to suffer any
detriment as regards the terms and conditions of service
enjoyed by them before their transfer-absorption. No
irreparable injury was going to be caused to the employees
of National Thermal Power Corporation if the impugned
direction was not given. In fact the said direction
militated against the observation made by Division Bench of
the High Court. The High Court at the interlocutory stage
should not have given the direction that if the employees of
other Corporations other than National Thermal Power
Corporation receive higher emoluments, the employees of
National Thermal Power Corporation should also be entitled
to the same. Accordingly, the direction given by the high
court is set aside. [241G-H, 242A-C]
State of Andhra Pradesh & Ors. v. G. Sreenivasa Rao &
Ors., [1989] 2 SCC 290, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2257 of
1992.
From the Judgment and Order dated 21.10.91 of the Delhi
High Court in C.M. No. 4875 of 1991 in C.W. No. 2377 of
1991.
G Ramaswamy, Attorney General, P. P. Malhotra,
S.K.Dhingra, J.C. Seth and Gurnam singh for the Appellants.
G. B. Pai, Janarangana Das, Amarendra Bal, Dr. Rajeev
Dhawan, G.V. Rao and Ms. Kamini Jaiswal for the Respondents.
The following Judgment of the Court was delivered by
PATNAIK, J. Special leave granted.
On 23rd October, 1989 was incorporated National Power
Transmission Corporation (NPTC) with the object of
developing a power system network in all its aspects
including planning, investigation, research, design and
engineering preparation and construction of sub-stations,
load despatch stations and communication facilities, co-
ordination of regional
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and national grid system, providing consultancy, execution
of turnkey jobs and purchase and sale of power. To achieve
these objectives, it was decided to transfer it transmission
lines and sub-station of the various generating
organisations and sub-stations of the various generating
organisation namely (a) National Thermal Power Corporation
(NTPC), (b) Nuclear Power Corporation of India Ltd. (NPC),
(c) North Eastern Electric Power Corporation Ltd. (NEEPCO),
(d) National Hydro-Electric Power Corporation (NHPC), (e)
Neyveli Lignite Corporation Ltd. (NLC), (f) Tehri Hydro
Development Corporation Ltd. (THDC), (g) Tehri Hydro
Development Corporation Ltd. (THDC), (g) Damodar Valley
Corporation (DVC), (h) Bhakra Beas Management Board (BBMB).
On 12th July, 1991, the Ministry of Power and Non-
Conventional Energy Sources, Department of Power, Government
of India issued instruction to NTPC and NPTC by way of
follow up measure pertaining to transfer of assets, service
conditions of employees, their absorption etc. The NTPC
issued circular dated 18.7.1991 in confirmity with the
aforesaid instructions of the Government of India.
The respondent No. 1, and Association of Corporate
Executive of NTPC filed a writ application in the High Court
of Delhi for invalidating the aforesaid instructions of the
Government of India and the circular issued by the NTPC as
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violative of Articles 14, 16(1), 21 and 23 of the
Constitution of India and for an appropriate order,
direction or writ in the nature of mandamus, restraining the
respondents from giving effect to Paragraph 2(1)(b) of the
instruction issued in letter dated 12.7.1991 and the entire
circular dated 18.7.1991. It also moved an application for
interim directions. By then, 2509 employee had already been
transferred to NPTC. At the hearing of the said
interlocutory application, the learned Attorney General
appearing on behalf of the Government of India and also on
behalf of the NPTC gave an undertaking in terms whereof an
order was passed by the High Court on 14.8.1991. The order
so far as is relevant is extracted hereinbelow.
"We have heard the parties counsel and the Attorney
General wishes to make a statement giving an
undertaking on behalf of the National Power
Transmission Corporation. He states by way of
undertaking as follows:-
The services of the above employees shall not
be deemed to be interrupted by National Power
Transmission Corporation
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consequent on such transfer and absorption.
The terms and conditions of service applicable
to these employees after transfer and absorption
shall not, in any way, be less favourable then
those applicable to them immediately before the
transfer.
In the event of retrenchment of any employee
who is a workman as defined in the Industrial
Disputes Act, 1947, the National Power Transmission
corporation shall be legally liable to pay
compensation on the basis of that his service is
continuous and has not been interrupted by the
transfer.
That if the writ petitioners succeed in the
writ petition, the entire position shall be
reversed, as per directions, order and any interim
order, and all interim orders as agreed to will be
subject to the writ petition.
That during the pendency of the writ petition,
the National Power Transmission Corporation shall
not recruit persons from any source other than the
National Thermal Power Corporation without the
permission of the Court.
We have heard the undertaking of the Attorney
General given on behalf of the Union of India and
on behalf of National Power Transmission
Corporation. The words in the undertaking to the
effect that transfer and absorption of employees of
the National Thermal Power Corporation in the
National Power Transmission Corporation shall,
however, be the matter of final adjudication of the
writ petition, and be subject thereto.
Liberty is given to both the parties to
mention the matter in case of difficulty and in
case of any changed situation. No action be taken
unilaterally affecting which are subject matter of
this writ petition without permission of this
Court. If the assets of the National Thermal Power
Corporation are to be transferred to the National
Power Transmission Corporation, then prior to
taking such action, the Court be approached."
Somedays later, an application was filed by the
National Power Transmission Corporation for modification of
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he following direction contained
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in paragraph 6 of the aforesaid order:
"the National Power Transmission Corporation shall
not recruit persons from any source other than the
National Thermal Power Corporation without the
permission of the Court."
The justification for making the application was the
necessity of the Corporation to recruit/absorb more hands
from the generating corporations with a view to running the
corporation effectively and efficiently for the purpose of
transmission of energy.
The Association opposed the said Motion contending that
the transfer of assets and employees was illegal and neither
the Government of India nor the NTPC has a right to change
the service conditions of the employees unilaterally nor
could they force on employees a transfer to National Power
Transmission Corporation and against that background the
High Court had, on the undertaking of the learned Attorney
General, directed that National Power Transmission
corporation should not recruit persons from any source other
than the NTPC without the permission of the Court. If the
NTPC desired to recruit and absorb in its employment,
employees from other Corporations, it should pay equal pay
for equal work to its employees. More specifically, if the
employees to be recruited by the NPTC from other
Corporations received higher emoluments, the employees of
the NTPC should also be entitle on par with employees of
other Corporations to higher emoluments. The NPTC as a
condition for the modification and as a privilege of
recruiting its employees from other Corporations should pay
higher emoluments to the employees of NTPC as the purchase
price. The Division Bench observed as under:-
"It is necessary and desirable that the new
Corporation must be able to function by taking into
its fold employees from various organisations,
whose transmission lines are to be taken over."
It went out:-
"In this connection we may refer to the undertaking
given by the learned Attorney General, that the
terms and conditions of service applicable to these
employees after transfer and absorption shall not,
in any way, be less favourable than those
applicable
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to them immediately before the transfer. In other
words, the pay of all sorts of employees will be
protected. Even after protection of the pay if
certain disparity in the emoluments of various sets
of employees remains, we expect that keeping in
view the principle of equal pay for equal work for
the employees who are placed in the same
circumstances and situation, and who discharge the
same duties and responsibilities, and work in the
same set of conditions, will be kept in view by the
respondents, and such disparities, if any, would
normally be rectified by them, by raising the
salary and allowances of the lower paid employees
to the level of the higher paid employees, but at
any rate that stage has not yet come, and the
employees transferred from respondent No. 2 to
respondent No.3, in case they face the situation,
they can always move the matter with respondent
No.3, or the Court.
However, even after so holding (underlining supplied)
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it directed that in the event:-
"some employees happen to get higher emoluments
than some employees doing equal work, those
employees who are transferred from respondent No. 2
to respondent No. 3 shall also get the same
emoluments, and the shortfall in their emoluments,
shall be made up by the respondents by raising
their emoluments equal to the emoluments drawn by
the corresponding employees of the other
Corporations taken over by respondent No. 3, during
the pendency of the petition."
The NPTC being aggrieved by the aforesaid direction as
quoted above issued by the High Court has moved this Court
under Article 136 of the Constitution of India urging that
having regard to the scope of the writ petition, the reliefs
sought, the High Court was in error in directing by way of
interim order that in the event some employees of the
Corporations other than the NTPC happened to get higher
emoluments doing the same nature of work then the employees
of NTPC would also be entitled to get the said higher
emoluments. It has been urged on behalf of the appellant
that the directions is inconsistent with the finding
recorded by the Division Bench in an earlier paragraph and
invoking the doctrine of equal pay for equal work at an
interlocutory stage is misconceived and when the various
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controversies are being examined by the High Court and when
the main writ application is being heard it was improper and
inexpedient to give by way of interim order the direction
quoted above.
The learned Attorney General appearing for the NPTC has
urged that having regard to the instruction issued by the
Government of India and the circular issued by the NTPC and
the undertaking given by him in the proceedings before the
High Court, the employees of NTPC are not being subjected to
any term and condition of service less advantageous than
those enjoyed by them before their absorption/transfer. The
scale of pay and other emoluments which they were enjoying
before transfer are not being affected. However, if they
are entitled to higher emoluments by application of doctrine
of equal pay for equal work, it is open to them to make a
demand for the same which will be considered by the employer
and if they are aggrieve, it is always open to them to move
the Court but having regard to the nature and scope of the
writ application the claim for equal pay for equal work on
the ground that some employees of some Corporation would
receive higher emoluments is outside the scope of writ
application and was not available to be urged on an
application moved by the Corporation for modification of an
order restraining it from recruiting employees from
Corporations other than NTPC. The employees of NTPC has not
come with any independent application in that behalf. He
has also urged that the claim was pre-mature. He has drawn
our attention to the observation made by the Division Bench
to the effect that the stage for claim of equal pay for
equal work has not been reached and in such eventuality if
the employees are aggrieved, they are at liberty to move the
employer or the Court and has submitted that the third
direction in last paragraph is inconsistent with the
aforesaid observation.
Dr. Rajiv Dhawan, Senior Advocate appearing for the
Association respondent No. 1 has combated the aforesaid
submissions of the learned Attorney General submitting that
the difference in emoluments by way of higher D.A. is not by
reason of the experience, ability or qualification.
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Inasmuch as transferred employees would form part of a
single service, different scales of pay or emoluments would
be unreasonable, arbitrary and unjust. He has contended
that the employees of the various Corporations could not be
forcibly transferred and the High Court had restrained NPTC
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for recruiting from other sources and if the said
Corporation wanted recruitment from other sources, it should
be agreeable to pay to the employees of NTPC also on
equitable ground higher emoluments if the employees of other
Corporations received higher emoluments doing the same
nature of work with similar responsibilities. He has sought
to distinguish the rule laid down in the case of State of
Andhra Pradesh & Ors. v. G. Sreenivasa Rao & Ors., [1989] 2
SCC 290 confining the holding therein to the facts of the
said case and urged that having regard to the similar nature
of work, ability and experience, the employees of NTPC
cannot be discriminated against.
Having heard the learned Attorney General, Shri P.P.
Malhotra, Shri. G.B. Pai and Dr. Rajiv Dhawan, Senior
Advocates at considerable length and giving our anxious
consideration to the matter, we are of the view that we
should be cautious in our approach having regard to the fact
that the Division Bench of the High Court is hearing the
substantive petition since some days and any observation
touching merit would embarrass the learned Judges who should
bring an independent mind to bear on the controversies
raised before them. Hence we do not express any opinion on
whether or not there has been a forced transfer of the
employees of various Corporations to NPTC and whether or not
such transfer/absorption in valid and even whether or not
some of the employees so absorbed can claim equal pay for
equal work on the ground that employees of some Corporations
recruited by NPTC received higher emoluments. We are of the
view that the learned Judges rightly observed that the stage
for adjudicating the question raised in the interim
application had not been reached. That was the correct
approach having regard to the facts and circumstances of the
case.
The terms and conditions of service of employees of
NTPC were protected in the instructions issued by the
Government of India and the circular issued by the NTPC as
also in the undertaking given by the learned Attorney
General. The employees of NTPc on transfer/absorption were
not to suffer any detriment as regards the terms and
conditions of service enjoyed by them before their
transfer/absorption. The counsel for NPTC even did not rule
out the possibility of ratinoalisation of emoluments at
later stage if the transfer/absorption is up-held by the
Court. No irreparable injury was going to be caused to the
employees of NTPC if the third
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direction quoted above by us was not given. The said
direction in our view militated against the observation made
by Division Bench in an earlier paragraph which has been
underline by us for emphasis. If the appellant’s prayer was
granted, the employees of NTPC were not in a less favourable
position than they were. We are, therefore, of the view
that the High Court at that interlocutory stage should not
have given the direction that if the employees of other
Corporations other than NTPC receive higher emoluments, the
employees of NTPC should also be entitled to the same.
We, therefore, set aside the direction (iii) contained
in last paragraph of the order passed by the Division Bench
on 21.10.1991 and allow the appeal.
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T.N.A. Appeal allowed.
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