Decided on March 30,2020



Biswanath Rath, J. - (1.) Petitioner has filed the writ petition seeking quashing of the order dated 30.6.2005 at Annexure-3 and the communications at Annexure-9 series. The petitioner has also sought for a direction to the opposite parties to pay the petitioner the differential emoluments, benefits, etc. considering the description in paragraphs-17 & 18 of the writ petition in the premises that he is being legally entitled to the same from 3.6.1995, the date on which his counterparts in the Corporation were entitled to avail the same including the revised generation incentive or oil incentives under the Reservation Scheme. The petitioner also sought for declaration that no service condition of the petitioner can be adversely changed or affected against the protection given to him by the Orissa Act 7 of 1995. The petitioner further sought for a declaration that the petitioner's normal age of retirement is 60 years, petitioner accordingly asked for issuing a direction to the Management to reinstate the petitioner and allow him to continue till he attained the age of 60 years or in alternate to pay him all his salary, benefits and allowances that he would have got had he continued in service under the Management of NTPC till attaining 60 years of age.
(2.) Background involving the case is that the Talcher Thermal Power Station termed as "TTPS" was wholly owned and managed by the Orissa State Electricity Board (in short called as "OSEB"), a statutory Body constituted by the State Government under the Electricity (Supply) Act, 1948. For the Power Station/TTPS it was not able to operate continuously even at its optimum generating capacity due to financial and technical constraints, consequently resulting loss in generation of electricity as OSEB or the State Government was not in a position to provide additional funds for its achieving optimum production in the year 1994, State Legislated the TTPS (Acquisition of Transfer) Act, 1994 (herein after referred to as "Act, 1994"), which received assent of the Hon'ble President of India on 3.5.1995 and was introduced in the State as the Orissa Act 7 of 1995. This Act came into force with effect from 18.5.1995 being published in the Gazette of Orissa. It is for the introduction of the above Act, the TTPS was vested in the State Government with all rights, title and interest of the OSEB and the State Government in turn vested the said Power Station in a Corporation free from all encumbrances and thus the Corporation became the owner of the Power Station following the provision at Section 5 of the Act, 1994.
(3.) Facts further reveal that the petitioner here was a regular employee of the Power Station under the OSEB and he had already put in ten years of service in the OSEB before the Establishment, in which the petitioner was working, was taken over finally by the Corporation following the provision of the Act, 1994. The petitioner was then serving as a Chemist in the erstwhile OSEB Establishment. In the meantime, the State Government introduced the Orissa Electricity Reforms Act, 1995, which received assent of the Hon'ble President of India on 3rd January, 1996 and the Reforms Act came into force with effect from 1st April, 1996. Pursuant to the provision in the Reforms Act, the properties, powers, functions and duties of the OSEB got vested in the State Government in terms that were agreed between the OSEB and the State Government and thereafter it was re-vested in the GRIDCO and in OHPC in accordance with law the Transfer Scheme particularly under the provision of Section 23 of the Reforms Act. For the provision of Section 24 of the Reforms Act, the personnel of the OSEB were to be transferred to the GRIDCO or OHPC but however with a rider that the service conditions though would be determined in accordance with the Transfer Scheme but would not be in any way less favourable than those which would have been applicable to them as it was prevailing before vesting. It is for the above development about 1500 employees including the petitioner belong to the erstwhile OSEB working in the TTPS at the relevant point of time were all taken over by the GRIDCO Corporation in 1995. The petitioner claimed, for the above development he should have been treated to be a regular employee of the Corporation without any pause or break. The petitioner further claimed that the taken over employees of the OSEB being the employees of GRIDCO were granted pay revision and consequential re-fixation benefits with effect from 1.4.1995 to 2.6.1995. The TTPS GRIDCO on the date of their taken over by the Corporation the rates of wages involving such Establishment was reckoned on the basis of such revised wages and the Corporation accordingly re-fixed the pay of these employees including the petitioner. The petitioner further claimed that in the meantime the age of superannuation of the employees of the Corporation as well as the taken over employees of the Power Station being 58 years with effect from 1.5.1998, the same was raised to 60 years by virtue of the Corporation Circular dated 29.5.1998. The petitioner contended that this raising of age of superannuation from 58 to 60 years was made applicable to all employees of the Corporation below the Board level whosoever had not assigned the age of 58 years as on 1.5.1998. The petitioner claimed that in the original circular or the subsequent communication indicating the increase in the age of superannuation, neither there was any condition nor restriction of application of the said benefit in respect of any category of employees of the Corporation. The petitioner claiming to be the Corporation employee claimed that he would have naturally retired only after the age of 60 years and alleged that he has been forced to retire at the age of 58 years on 30.6.2005 by keeping the petitioner outside the benefit of the above circular. Communication on the superannuation of the petitioner appears at Annexure-2. It is, at this stage, the petitioner further contended that there was altogether six trade unions in the power station representing the employees working therein and it is alleged that the Corporation very skill fully entered into a tripartite agreement with one of the trade union with the help of local conciliation machinery which was reduced to be a tripartite settlement in spite of 50% of the employee showing their discontentment to the terms of settlement. On 22.08.1998, Corporation issued Office Order calling option from some of the regular employees. On the premises that such employees had less than ten years of service to get their superannuation asking them to give their option to come over the NTPC pay scale, allowances, benefits and other terms and conditions of service but excluding NTPC contributory superannuation benefit fund scheme. Though the petitioner was working as Supervisory staff and had more than ten years of service left as on 03.06.1995 was excluded from the coverage of communication dated 22.08.1998. Again after 16 months similar letter was issued to the petitioner calling for his option to switch over to NTPC grade and pay structure. It is alleged that since the petitioner did not opt fully he along with few others came to lose several statutory and non-statutory benefits and service conditions in comparison to their counter parts. It is alleged that similar benefits were extended to all such employees but for no option by the petitioner pursuant to Annexure-3, the petitioner was deprived of certain allowance. Petitioner further contended that after NTPC took over TTPS for the first time on 10.10.1998 including the employees of TTPS and the present petitioner were paid generation incentive and oil incentive as per the reward scheme for the year 1996-97. Again on re-introduction of generation incentive scheme for 1995-96 and 1996-97, petitioner also received the said benefit. It is when the revised generation incentive scheme for 1997-98, 1998-99 and 1999-2000 was lunched surprisingly the benefit came through Annexure-4 were not paid to the petitioner. In the meantime generation incentive scheme benefit for the year 1999-2000 made applicable for the year 2000-2001. The petitioner was also excluded from this benefit in the above regard came through Annexure-5. In the meantime Corporation introduced grant of onetime special cash award vide Annexure-6 which was extended to the petitioner. It is alleged that the petitioner made several representations to the Corporation indicating the losses in his earnings even after the petitioner became a regular employee, Senior Personal Officer of the Corporation rejected the claim of the petitioner vide Annexure-9. It is while the matter stood thus, petitioner was called to the guest house and was forced to opt for retirement scheme.;

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