Dismissed¶¶73

G.M.,Korba Super Thermal Power v. Sunil Ashtakar and Ors.

Chhattisgarh HC18 Jun 2024WPL/7498/2009

Case brief

AI extract

What is this about?

NTPC Korba Super Thermal Power Project vs 30 employees and BALCO Captive Power Plant: liability for Generation Incentive Allowance for period 1.4.2004–31.10.2007; Section 31(3) CG Industrial Act, 1960; transfer without consent from PSU (NTPC) to private BALCO held bad in law per Supreme Court (2007) 14 SCC 234; Certified Standing Orders of NTPC govern service conditions; Labour Court order 20.4.2009 and Industrial Court order 13.11.2009 upheld; writ petition WPL 7498/2009 dismissed by Justice Deepak Kumar Tiwari on 19/6/2024.

What did the court decide?

No relief to the petitioner; the writ petition was dismissed, leaving intact the Labour Court's grant of Generation Incentive Allowance and other benefits to respondents 1 to 30 for 1.4.2004 to 31.10.2007, as affirmed by the Industrial Court. ¶¶73

G.M.,Korba Super Thermal Power Vs Sunil Ashtakar and Ors. — Chhattisgarh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

¶¶73

Issue for consideration

Whether the petitioner (NTPC), rather than respondent No. 31 (BALCO), is liable to pay Generation Incentive Allowance and other service benefits to respondents 1 to 30 for the period 1.4.2004 to 31.10.2007, even though during that period the employees worked at BALCO Captive Power Plant pursuant to the agreement dated 20.6.2002. +1 more

¶¶56

Court's answer

Since the transfer of the respondent employees from NTPC to BALCO was not legal, they are entitled to all service benefits granted to similarly situated NTPC employees and could not be deprived of those benefits on account of the arbitrary decision of the employer in transferring them to a private organisation with less service benefits.

¶¶68

Ratio / Principle

The petitioner's argument that the employees rendered no physical work to it during 1.4.2004 to 31.10.2007 and that the Generation Incentive Allowance, being production-linked, should be borne by BALCO, cannot be accepted.

¶¶70

Key takeaways

The impugned order dated 20.4.2009 of the Labour Court, affirmed by the impugned order dated 13.11.2009 of the Industrial Court, is just and proper and calls for no interference by this Court.ratio¶¶71

Detailed headnote1 paragraphs

Writ Petition dismissed — NTPC (Korba Super Thermal Power Project) held bound to bear liability for Generation Incentive Allowance and other service benefits of respondents 1 to 30 for 1.4.2004 to 31.10.2007 despite their having worked at BALCO Captive Power Plant during that period — transfer of employees from NTPC (public sector undertaking) to BALCO (private organisation) without consent was held bad in law by the Supreme Court in Balco Captive Power Plant Mazdoor Sangh v. NTPC, (2007) 14 SCC 234, on which reliance was placed — employees entitled to all benefits available to similarly situated NTPC employees and not to be deprived thereof by reason of the arbitrary transfer — concurrent findings of Labour Court (order dated 20.4.2009 allowing application under Section 31(3) of the CG Industrial Act, 1960) and Industrial Court (order dated 13.11.2009) required no interference.

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

WPL No. 7498 of 2009

¶5

General Manager Korba Super Thermal Power Project, NTPC Limited Jaminipali District Korba (CG)

¶6

---- Petitioner

¶7

Versus

¶8

Sunil Ashtakar, S/o Late RR Ashtakar, age 42 years, Employee No.67831

¶9

H.D. Manikpur, S/o Late M.D. Manikpuri, age 42 years, Employee No:67833

¶10

A.K. Bishwas, S/o Late Anil Chandra Vishwas, age 49 years, Employee No.67600

¶11

N.N. Thawait, S/o Late N.L. Thawait, age 43 years, Employee No.67621

¶12

Gurumurthy, S/o Late Yarranna, age 45 years, Employee No. 67684

¶13

Saban Santosh Kujur, S/o Dhankunwar Kujur, age 47 years, Employee No.67849

¶14

B.B. Sahu, S/o Late Anand Chandra, age 49 years, Employee No.67821

¶15

G.P. Bhaina, S/o Late G.R. Baina, age 44 years, Employee No. 67636

¶16

B.R. Suryavanshi, S/o M.R. Suryavanshi, age 46 years, Employee No.67776

¶17

SK. Shrivastava, S/o MN Shrivastava, Age 44 years Employee No. 61031

¶18

G.D. Sahu, s/o Late P.D. Sahu, age 43 years, Employeе No. 67799

¶19

Ramprakash, S/o Ramniwas, age 45 years, Employee No.67862

¶20

C.R. Khairwar, S/o Late Haricharan, age 42 years. Employee No.67732.

¶21

B.L Rajesh, S/o Chaitram, age 44 years, Employee No.67885

¶22

V.K. Verma, S/o K.R. Singrol, age 43 years, Employee No.67830.

¶23

H.L. Shrivas, S/o R.S. Shrivas, age 45 years, Employee No. 67696.

¶24

M.K. Verma, S/o R.L. Verma, age 40 years, Employee No.67806.

¶25

U.K. Verma, S/o R.L. Verma, age 44 years, Employee No.67685.

¶26

Tapan Kumar Das, S/o Late B.D. Das, age 42 years, Employee

¶27

¶28

No.67902.

¶29

N.B. Chhatterjee, S/o Late G.K. Chhatterjee, age 47 years, Employee No.67757.

¶30

J.K. Bishwas, S/o Late S. Vishwas, age 45 years, Employee No.67859.

¶31

A.K. Shukla S/o B.R. Shukla, age 42 years, Employee No. 67805

¶32

CR. Maitri, S/o RS Maitri, age 43 years, Employee No.67682

¶33

KP. Pradhan, S/o Late AS Pradhan, age 45 years, Employee No.67688

¶34

Bushan Yadav, S/o Late Sonsai, age 46 years Employee No.67861.

¶35

G.S. Ogare, S/o B.R. Angare. age 45 years, Employee No.67841

¶36

S.K. Jana, S/o Late S.K. Jana, age 42 years, Employee No. 67769.

¶37

Anil Sharma, S/o Ambika Prasad Sharma, age 42 years, Employee No.67895.

¶38

Lal Mohan, S/o G. Purnaması, age 48 years, Employee No. 67601.

¶39

H.S. Khurana, S/o Late B.S. Khurana, age 44 years, Employee No.67815.

¶40

Respondents No.1 to 30 are resident of Jaminipali, Korba, Tahsil Katghora, District Korba (CG).

¶41

General manager, BALCO Captive Power Plant, Bharat Aluminum Company Limited (BALCO), Jamnipali, Korab, Tahsil and District Korba (CG).

¶42

Labour Court, Korba, District Korba (CG) through its Presiding Officer

¶43

Industrial Court, Bilaspur, District Bilaspur (CG) through its Presiding Officer

¶44

---- Respondent

¶45

(Cause Title downloaded form CIS Periphery)

¶46

For Petitioner Dr. NK Shukla, Senior Advocate with Ms. Priya Mishra and Mr. Anuroop Panda, Advocates For Respondents 1 to 30 Mr. Sunil Otwani, Advocate For Respondent No.31 Mr. Bhaskar Pyasi, Advocate

¶47

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Order On Board

¶48

19/6/2024

¶49

¶50

This petition has been filed by the petitioner challenging the legality and validity of the order dated 20.4.2009 passed by the Labour Court, Korba in Case No.44/CGIR Act/07, which was decided in favour of respondents 1 to 30/employees, whereby, an application under Section 31(3) of the CG Industrial Act, 1960 was allowed, against which, the appeal (Civil Appeal No.3/CGIR Act/A11/2009) filed by the petitioner herein was also dismissed by the order dated 13.11.2009 (Annexure P/1) passed by the Industrial Court, Bilaspur and the employees were granted Generation Incentive Allowance along with other benefits for the period from 1.4.2004 to 31.10.2007.

¶51

Briefly stated facts are that indisputably, respondents 1 to 30/employees were appointed by the Petitioner Organisation and thereafter, an agreement dated 20.6.2002 (Annexure P/4) was executed between the petitioner and respondent No.31. After execution of the agreement, services of some of the employees were transferred to BALCO Captive Power Plant, which was under the control of respondent No.31. Thereafter, a set of the employees challenged their transfer orders before the Hon’ble Supreme Court {Balco Captive Power Plant Mazdoor Sangh and another Vs. National Thermal Power Corporation and others, (2007) 14 SCC 234} . In the aforesaid matter, the Supreme Court held that no employee could be transferred without his consent from one employer to another and in view of the aforesaid ruling, the transfer of an employee

¶52

¶53

from NTPC - a Public Sector Undertaking to BALCO, which is a private organisation, was held to be bad in law.

¶54

Dr. NK Shukla, learned Senior Counsel for the petitioner would submit that respondents 1 to 30/employees had worked for the period from 1.4.2004 to 31.10.2007 under the Balco Captive Power Plant (respondent No.31-BALCO) and contributed in the profit and loss account of the said concern and they had not rendered services by doing any physical work in the Petitioner Organisation during the said period. He would further submit that production of a particular plant gives rise to grant of subject incentive and this goes to show that the incentive is linked with the production and the production linked incentive is not a gift or donation. He further submits that for some reason, if the production unit runs into loss or production line falters, then, in such year, no incentive would be given. He would further refer to the agreement dated 20.6.2002 (Annexure P/4) executed between the petitioner and respondent No.31 which highlights clause 6. Clause 6 deals with the employees of BCPP and it provides that all direct and indirect expenses whatsoever in respect of manpower deployed by BCPP like wages/salaries, allowances, concessions, incentive etc. shall be borne by BALCO after execution of such agreement. He would further submit that the said aspect has not been touched upon by the Supreme Court in its earlier judgment, therefore, the liability of the

¶55

¶56

payment of Generation Incentive Allowance shall be borne by the BALCO and the petitioner is not liable for the same. However, he would not dispute the entitlement of the employees/respondents to such allowance.

¶57

On the other hand, learned counsel for the respective respondents would support the impugned order passed by the Labour Court, which has been affirmed by the impugned order passed by the Industrial Court. He would submit that there is concurrent finding of fact and law in the impugned order(s) and the same does not warrant any interference by this Court. They would further submit that in Balco Captive Power Plant Mazdoor Sangh and another (supra), the Supreme Court has categorically observed that the transfer of the employees from the Public Sector Undertaking (NTPC) to the BALCO, which is a private organisation, is bad in law. He submits that after such verdict of the Supreme Court, NTPC cannot shut the door for its employees and respondents 1 to 30/employees would continue and be deemed to be the employees of the NTPC. They would submit that since no consent has been given by the employees to work with a private concern with less benefits, their service conditions have not changed. Hence, learned counsel for the respective respondents pray to dismiss the petition.

¶58

At this juncture, Mr. Sunil Otwani, learned counsel for the respondents 1 to 30 employees would further submit that

¶59

¶60

since the matter was pending consideration before this Court, the Generation Incentive Allowance and other service benefits granted to the respondents/employees by the order passed by the Labour Court, which was affirmed by the Industrial Court in appeal, have not been granted to the employees concerned.

¶61

Heard the rival submissions of learned counsel for the parties and also perused the documents annexed with the petition.

¶62

Perusal of the judgment ( Balco Captive Power Plant Mazdoor Sangh and another {supra}) ) would show that the Supreme Court in categorical terms has held that the transfer of the employees from NTPC- a Public Sector Undertaking, to BALCO is bad in law as all appointment orders were issued by the NTPC and all service conditions related to the respondentemployees would be governed by the Certified Standing Orders of the Petitioner Organisation. The relevant para 37 and 38 read thus :

¶63

It is clear that no employee could be transferred without his consent from one employer to another. Therefore, in view of the aforesaid rulings the transfer of employees from ntpc — a public sector undertaking to Balco which is a private organisation is bad in law.

¶64

The above discussion would clearly show that all appointment orders were issued by ntpc and rules, procedure in respect of probation, training, DA and other allowances, absorption in the regular scale are 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,

¶65

¶66

they have to execute service agreement in favour of ntpc or any other department or undertaking of the 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 Balco whereas it only refers to 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 the Government of India. There is no iota of evidence or indication that they will be transferred to a private concern with less service benefits.

¶67

The ground raised by learned Senior Counsel for the petitioner and the submission put-forth by him is that the employees had not worked for the period from 1.4.2004 to 31.10.2007 in the Petitioner Organisation and in fact, they had worked with BCPP during such period, therefore, they are not liable for Generation Incentive Allowance as the said incentive is linked with the production of a particular plant.

¶68

It is pertinent to mention here that since the transfer of the respondent employees was not legal, they are entitled to all the service benefits which have been granted to the similarly situated employees of the NTPC and they could not be deprived of their benefits on account of the arbitrary decision

¶69

¶70

taken by the employer organisation (Petitioner) by transferring them to a Private Organisation with less service benefits. Thus, the argument advanced by learned Senior Counsel for the petitioner cannot be accepted.

¶71

10.For the foregoing discussion, this Court is of the view that the impugned order dated 20.4.2009 passed by the concerned Labour Court, which was affirmed by the concerned Industrial Court by the impugned order dated 13.11.2009, is just and proper, which does not call for any interference by this Court.

¶72

11.Resultantly, the Writ Petition deserves to be and is hereby

¶73

dismissed. Sd/-

¶74

(Deepak Kumar Tiwari) Judge

¶75

Shyna

G.M.,Korba Super Thermal Power v. Sunil Ashtakar and Ors.

Case brief

What is this about?

What did the court decide?

G.M.,Korba Super Thermal Power v. Sunil Ashtakar and Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Balmati Vs Gopal

Krishnadatt Tiwari Vs Mahendra Pratap Singh

Md. Islamuddin Badgujar Vs Smt. Pratibha Gupta

Mukesh Singh @ Panchar Vs State of Chhattisgarh

Smt. Savita Niyogi Vs Sudeep Niyogi

Bhuneshwar Prasad Rajwade Vs Oriental Insurance Company Ltd.