NTPC Ltd. Government of India Enterprise vs The Union of India (UOI)

K. Chandru, J.—The Petitioner is the NTPC Limited, which is a Government of India enterprise. They have come forward to file the

present writ petition seeking to challenge an order of reference made by the Union of India, represented by the Secretary to Government, Ministry

of Labour, dated 9.2.2009. By the impugned order, the first Respondent/Central Government referred an industrial dispute raised by the third

Respondent/ Trade Union by exercising the power u/s 10(1)(d) of the Industrial Disputes Act, 1947 (for short, ""the ID Act""). The terms of

reference, as found in the impugned order, read as follows:

Whether the demand of the Powergrid National Workers Union (SR) for the additional payment to the employees for the alleged additional work

of 52 days per year by the management of M/s. Power Grid Corporation of India Ltd., and M/s. National Thermal Power Corporation Ltd. is

legal and justified? If yes, to what relief the workmen are entitled to?

It is surprising that a public sector corporation like the Petitioner, owned by the Central Government, has challenged an order of reference made

by the Central Government.

The writ petition was admitted on 29.4.2009. Pending the writ petition, this Court granted interim stay. Subsequently, when a vacate stay

petition was filed by the third Respondent/union in M.P. No. 1 of 2010, this Court rejected their plea for vacating the stay and made the stay

absolute vide order dated 18.8.2010. On behalf of the fourth Respondent, viz., Power Grid Corporation of India Limited, another public sector

enterprise, a counter affidavit dated 1.11.2010 was filed. The first Respondent/Union of India had also filed a counter affidavit dated nil.

Heard the arguments of Mr. V.T. Gopalan, learned Senior Counsel appearing for M/s. King and Partridge, Mr. Velayutham Pichaiya, learned

Central Government Standing Counsel for the first Respondent, Mr. J. Ramakrishnan for the third Respondent/trade union and M/s. Aiyar and

Dolia for the fourth Respondent/Corporation.

4.1. The facts leading to the case are as follows: The Petitioner/ NTPC claim they are the largest power company under the public sector installed

in the year 1975 and at the moment they have 15 coal based and 7 gas based power stations and 4 joint ventures. Apart from the generation of

electricity, they are also in the business of consultancy, power trading, ash utilization and coal mining.

4.2. Pursuant to the decision of the Government of India to switch over to 5 day week in the administrative office of the Central Government, the

Petitioner also followed the same pattern in their Central Head Quarters, Regional Head Quarters at Hyderabad, Patna, Allahabad and Nagpur as

well as in the Metropolitan cities of Bombay, Kolkata and Chennai. This fact was also communicated to the employees by circular dated

2.8.1995. But it was made clear that the said 5 day week system will not apply to the plants and power generation stations.

4.3. After the introduction of the 5 day week, the Petitioner company as well as the workers had various consultations and entered into a

Memorandum of Conclusion dated 17th and 18th September, 1985. While the trade unions wanted 5 day week in all other units, the management

did not accept the said request. The stand of the management was also recorded in paragraph [5] of the Memorandum of Conclusion. After the

negotiated settlement dated 12.8.1983 got expired on 31.12.1986, all the trade unions submitted a fresh charter of demands and bipartite

negotiations were also held. The settlement was signed on 19.7.1989 for the period from 1.1.1987 to 31.12.1991. Under paragraph [9.3] of the

settlement, all the demands were agreed to be settled. Under paragraph [9.2], except what has been agreed, the rest of the service conditions

were to be continued, which means that the 5 day week issue has been concluded. After the said settlement dated 19.7.1989, another bipartite

settlement was signed on 27.5.1995 for the period from 1.1.1992 to 31.12.1996. Thereafter, another bipartite settlement was signed on

25.1.2001 for the period from 1.1.1997 to 31.12.2006.

4.4. It is at this stage, the Central Government promulgated an Ordinance known as the National Thermal Power Corporation Limited, The

National Hydro Electric Power Corporation Limited and the North Eastern Electric Power Corporation Limited (Acquisition and Transfer of

Power Transmission Systems) Ordinance, 1993 for the acquisition and transfer of the power transmission system of the three companies and the

right, title and interest of those companies in the power transmission system to develop the National Power Grid. u/s 3(2) of the Ordinance, the

power transmission system vested with the Central Government was transferred to the fourth Respondent/Power Grid Corporation of India

Limited.

4.5. It is claimed that as per the said Ordinance the services of all the employees/workmen in the power transmission system stood transferred to

the fourth Respondent with effect from 1.4.1992 and there was no employer employee relationship between those workers and the

Petitioner/management.

4.6. The third Respondent on 20.4.2007 raised a dispute before the Assistant Labour Commissioner (Central), Chennai against the Petitioner and

the fourth Respondent. In that representation, they demanded 5 day week and the Conciliation Officer initiated conciliation proceedings and notice

was issued to the Petitioner. The Petitioner claimed that they have been unnecessarily summoned and there is no dispute between them and the

third Respondent. Notwithstanding the same, the Conciliation Officer sent a failure report dated 29.10.2008. The first Respondent/Central

Government, on receipt of the said failure report, referred the dispute, as noted already, for adjudication by the Central Government Industrial

Tribunal-cum-Labour Court, Chennai. Even before the dispute could be taken up on file and matter could be adjudicated, the Petitioner/

Corporation has rushed to this Court challenging the order of reference.

4.7. The contention raised by the Petitioner was that the issue relating to 5 day week has been concluded by the Memorandum of Conclusion and

the subsequent settlements and there was no justification for the third Respondent to raise a dispute after two decades. The first Respondent did

not have any material to refer the dispute and there was total non application of mind, this is especially in the context that there was no employer

employee relationship between the Petitioner/ Corporation and the workmen since 1.4.1992 and it is on that date, by virtue of the Ordinance, the

services of the employees working in the power transmission system stood transferred to the fourth Respondent and the Central Government had

failed to take note of the same.

4.8. With reference to the jurisdiction of this Court to go into an order of reference, the learned Senior Counsel referred to the judgment of the

Supreme Court in National Engineering Industries Ltd. Vs. State of Rajasthan and Others, . In that case, the Supreme Court held that an Industrial

Tribunal, as it is a creation of a statute and gets jurisdiction only on the basis of reference, cannot go into the validity of the reference and therefore,

the issue relating to lack of jurisdiction can be raised in a writ petition filed under Article 226 of the Constitution of India. In paragraph [24], it was

observed as follows:

It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute

and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal u/s 10 of the Act. Here it is a

question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction.

5.1. Resisting the stand of the Petitioner, the first Respondent/ Central Government, in their counter affidavit, stated that the demand for reduction

of the working days or in essence additional payment for the additional work of one day per week can certainly be an industrial dispute between

the parties.

5.2. It is also stated that an order of reference is not a quasi-judicial order and one of administrative action by the Central Government, for which

reliance was placed upon the judgment of the Supreme Court in Western India Match Co. Ltd. Vs. The Western India Match Co. Workers Union

and Others, and Ram Avtar Sharma and Others Vs. State of Haryana and Another, .

5.3. As to the sufficiency or satisfaction of the material placed before the Central Government reliance was placed upon the judgment of the

Supreme Court in Avon Services Production Agencies (P) Ltd. Vs. Industrial Tribunal, Haryana and Others, and it was contended that if a dispute

was an industrial dispute, its factual existence and expediency of making the reference in the circumstances of a particular case are the matters

entirely for the government to decide and it will not be competent for the court to hold that the reference was bad and quash the proceedings for

want of jurisdiction merely because in the opinion of the court there was no material before the Government which could have made it to come to

an affirmative conclusion.

5.4. It was also stated that in the absence of any settlement u/s 12(3) of the ID Act, the Government is competent to make a reference.

5.5. It was further stated that after the receipt of the failure report, the Government of India requested the Ministry of Power to advise the

respective management to settle the dispute amicably by discussion with the union concerned and also to furnish their comments to the Government

of India within a period of 60 days and it was indicated that if there was no remark, it will be presumed that they had no valid objection for the

matter being referred for adjudication and, therefore, since the dispute was not settled amicably, the Government, on perusal of the report along

with the representation and replies submitted by all parties, referred the dispute.

5.6. A preliminary objection was also raised that a public sector undertaking should not come to the Court challenging another order passed by

another wing of the Government and in such cases, unless the opinion of the High Power Committee for initiating the litigation between the inter-

ministerial departments is obtained, the Court should not entertain any litigation.

The fourth Respondent contended that the persons who are working in the site and projects were paid special compensatory allowances.

Though the trade union had agreed to withdraw the dispute, they did not withdraw the same. The dispute raised after a period of two decades was

unjustified and after the acquisition of the manpower and assets, the fourth Respondent had entered into three bipartite settlements relating to the

service conditions and hence, the reference was bad in law and they also supported the stand of the Petitioner.

7.1. The third Respondent/Union, in their counter affidavit, contended that while the 5 day week system was introduced selectively to the offices,

the workers of the power generation unit were working round the clock under three shift duty system. While the offices function from 9 a.m. to

5.30 p.m. with = an hour break and also had every second and last Saturdays as closed holidays before the introduction of the 5 day week, the

power generation unit worked round the clock and there is a gross exploitation of the workers.

7.2. The settlements, which are referred to, are not applicable to be case on hand. Since the workmen in the projects and the power generation

units are working extra 52 days per annum for the very same salary, even the principle of equal pay for equal work was flouted and the action of

the Petitioner is arbitrary and violative of Article 14 of the Constitution of India.

However, this Court is not inclined to go into the merits of the case, since the first Respondent/Central Government has filed a counter affidavit

and had stated that it was fully satisfied with the existence of a dispute and also made a reference on the basis of relevant materials. This Court

cannot go into the sufficiency or otherwise of the said materials, especially when the order of reference only enables the adjudicating authority to

adjudicate the dispute between the parties.

It must be noted that an industrial dispute under the ID Act can be resolved only by two methods one by conciliation and other by adjudication.

In case of failure of conciliation, certainly it is open to the Government to refer the dispute for adjudication under the belief that an award passed by

the adjudicating authority can bring industrial peace. Even assuming that the issue is covered by either a bipartite settlement or memorandum of

conclusion, that is a matter which will have to be pleaded before the Tribunal for its acceptance.

The plea of estoppel is essentially a question of fact which will have to be pleaded in the counter pleadings made by an employer before the

Tribunal and what is the best defence of the employer cannot be made use of to set aside a reference. Ultimately, the industrial tribunal is

competent to decide the question as to whether the matter was covered by any settlement.

The Supreme Court vide judgment in Government of Gujarat (Fisheries Terminal Department) v. Bhikubhai Meghajibhai Chavda, [2010] 1

SCC 47 has held that if the workmen approach the Conciliation Officer and thereafter move the court for adjudication, the delay cannot be held to

be fatal. In paragraph [22], it was observed as follows:

It is also the case of the Appellant that there is unexplained delay in approaching the Labour Court in adjudicating the imaginary grievance by

the Respondent workman. In our view, there is no merit in this contention. The workman had approached the Conciliation Officer for resolving the

dispute between the employer and the employee and it is only when the conciliation proceedings failed that the matter was referred to the Labour

Court for final adjudication."" Therefore, this Court is not inclined to interdict the order of reference at the threshold, even before effective

adjudication.

The learned Senior Counsel also submitted that since by virtue of the Ordinance they were divested with all the assets in respect of the power

generation employees, any liability can be only fastened on the fourth Respondent and not on the Petitioner. It was submitted that the fourth

Respondent is the successor in interest to the Petitioner/ Corporation. However, these are all matters which the Tribunal will have in mind and in

case it decides to grant relief to the workmen, it will also decide the question of fixing the liability on the appropriate employer. On this score, the

reference cannot be held to be bad in law.

Before concluding, it must also be noted that even the Government of India has raised objection about the maintainability of the writ petition at

the instance of the Petitioner in the absence of the Petitioner getting approval from the High Power Committee for filing the writ petition against the

very same Government of India which had created the Petitioner/Corporation. Anyhow, it is a matter which the Petitioner/Corporation will have to

ponder over. Since this Court has dismissed the writ petition on other grounds, it is unnecessary to go into the objection raised by the Government

of India.

In view of the above, the writ petition stands dismissed. No costs.