Damodar Valley Corporation Vs. Workmen
[1973] INSC 85 (18 April 1973)
VAIDYIALINGAM, C.A.
VAIDYIALINGAM, C.A.
GROVER, A.N.
CITATION: 1973 AIR 2292 1973 SCR (3) 994 1974
SCC (3) 57
ACT:
industrial dispute--Right of employees to
construction allowance.
HEADNOTE:
One of the disputes between the appellant and
the respondents, referred to the Industrial Tribunal, was whether construction
allowance should be payable to any categories of regular employees for
extension of existing projects after the operation stage had commenced, and if
so, to what extent and to which categories of regular employees.
The Tribunal held that the allowance should
be payable to all categories of regular employees including school teachers and
welfare centre workers at any station where there is both construction work and
operational work.
Dismissing the appeal to this Court,
HELD : The Tribunal was justified in holding
that the employees, who were 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 uniformly.
According to the circulars issued by the
appellant the essential qualification for getting construction allowance was
that the employee must be stationed at the construction camp site, the reason
'for such payment being the arduous and exacting nature of construction duties
and the lack of civic amenities at, the camp site. The evidence in the case,
however, disclosed that the appellant had modified these principles, because,
construction allowance was paid even to employees who were posted at
headquarters but who had to visit the construction site during the process of
such construction. If such employees are posted or stationed at headquarters
they will be enjoying the civic amenities in the same manner as the other
employees who are doing operational work at the same headquarters. There would.
be no distinction between them in the matter of enjoying civic amenities, but
the former are paid construction allowance while the latter are not. Also there
is no justification for denying construction allowance to the employees coming
under the category of school staff especially when employees coming under the
head, of hospital staff are paid construction allowance. The appellant has
neither pleaded nor established any factors distinguishing the two categories
of employees.
[998 A; 1001 G-H; 1003 E-H; 1004 A-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1666 of 1968.
Appeal by special leave from the Award dated
January 27, 1968 of the National Industrial Tribunal at Calcutta in Reference
No. NIT-2 of 1967.
Niren De, Attorney-General for India, and D.
N. Mukherjee, for the appellant.
D. L. Sen Gupta and S. K. Nandy, for
respondent No. 2.
995 The Judgment of the Court was delivered
by VAIDIALINGAM, J. 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.
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) namely:"Should construction 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
regular employees?" The unions claimed payment of construction allowance
to them 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 an
categories of' regular employees posted at the station, including school
teachers and welfare centre workers.
According to the directions given by the
Tribunal, construction allowance is pay-_ able to all categories of regular
employees who are posted at any station where both.
construction work and operational work are
being carried on.
The learned Attorney General, on behalf of
the appellant, urged that construction allowance is paid only to those
employees, who are actually on the site where the construction works are going
on. Such payment, it is pointed out, was made to compensate those employees for
lack of civic amenities at the site, where construction work has been started
and is going on According to him, the operational staff, who are posted in
townships enjoy all the amenities provided therein and hence are not eligible
for payment of this construction allowance. In support of this contention, the
learned Attorney General referred us to, the circulars issued by the management
as well as the answers given by the witnesses. According to him, the directions
given by the Tribunal, apart from putting the appellant to considerable
expense, are contrary to the evidence adduced in, the case and even the claim
made by the workmen.
996 Mr. Sen Gupta,, learned counsel for the
workmen, pointed out that the unions had placed materials before the Tribunal
to show that even certain employees doing operational work and who had nothing
to do with construction work, were being paid construction allowance.
Therefore, the plea of the appellant that it is only the employees, who are
actually posted and work at the construction site that are eligible for much
payment, is contrary even to the evidence adduced on behalf of the appellant.
The learned counsel also drew our attention to the relevant, averments in the
unions' written statements as well as the answers given by the appellant's
witnesses themselves and urged that the very limited relief granted by the
Tribunal is justified.
At this stage we may mention that the learned
Attorney stated that even employees posted at headquarters are paid
construction allowance provided they have to go to the construction site during
,the process of construction.
It is now necessary to refer to the circulars
issued by +, he :management as well as the material part of the pleadings.
Annexure 1 to the Special Leave Petition
regarding construction ,allowance is as follows :DAMODAR VALLEY CORPORATION
REVISION OF PAY SCALES Construction allowance granted in view of the :arduous
and exacting nature of construction duties shall continue to be paid at places
which are declared to be construction camps and it shall be withdrawn from the
date the places are declared to have been ceased to be construction camps. To
avoid undue hardship, such withdrawal will be made in stages as shown below
except in the cases of DIPS and BTPS 4th Unit employees
----------------------------------------------------------Allowance admissible,
----------------15 %of pay subject to maximum of Rs.75/ (i) For the first 6
months from the date of withdrawal of the construction allowance.
(ii) For the next 6 months 10% of pay subject
to a maximum of Rs. 501-.
(iii) For the next 6 months 5 % of pay
subject to a maximum of Rs. 25/-.
(iv) Thereafter Nil ----------------------The
above reducible allowance shall. be a to such of the employees only as are in
receipt of the construction allowance and continue to be stationed at these
places." There is no controversy that the payment of construction allowance
began somewhere about 1952. In fact both 'the unions representing the workmen
admitted this fact in their written 997 statements. From the extract given
above, it will be noted that the allowance is paid in view of the arduous and
exacting nature of construction duties at places which are declared to be
construction camps. In order; to soften the rigor of its withdrawal, the said
payment is slowly stopped in the circumstances and at the rates mentioned
therein, when once the concerned places. have ceased to be construction camps.
On February 14, 1953, another circular was
issued regarding the construction allowance by the appellant. The relevant part
of the circular proceeds to state:
"It has been decided by the Corporation
to continue the grant of Construction Allowance at the rate of 20% of pay
(rounded to the nearest (rupee) up to maximum of Rs. 100/p.m. The admissibility
of the allowance will be subject to the following conditions:(1) Construction
Allowance, which will be the nature of a Compensatory Allowance, will be
admissible in to:(a) all employees in the regular establishment stationed at
Construction Camps;
NOTE : "Construction Camps" means
all camps which have beenspecifically set up by the DVC for construction work
and where such work is either due to start or is in pi-ogress.
They will cease to be considered as
"Construction Camps" as soon as the construction work has been
completed. The following are the Construction camps now in existence:
Tilaiy, Konar, Bokaro, Maithon, Panchet,
Durgapur and all other Irrigation Camps;
(b) Employess, stationed at townships not set
up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and
when their activities are connected with construction and lie outside a radius
of 5 miles from the respective township.
(c) The staff employed on the construction
substation at Loyabad, Sindri and other places as well as the staff stationed
at Kodarma, Hazaribagh Road Station, Gomia, Tasra and Muri." 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 impor998 tance to the employee being at a particular place where
he is discharging an arduous and exacting nature of construction work.
We will now refer to the pleadings. The
workmen were represented by two unions, D.V.C. Staff Association (hereinafter
to be referred to as the Association) and D.V.C. Karamchari Sangh resented by
two unions, D.V.C. Staff Association (hereinafter to its written statement
dated September 19, 1967, the Association states :"That the 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 date
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
what rate." In Annexure '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 note.
ANNEXURE 'B' CONSTRUCTION ALLOWANCE
----------------------------------------------------------Category of Rate
Stage and Workers circumstances
----------------------------------------------------------a. All workers borne
on 20% Workers get construction of pay regular Establishment allowance from the
very beginning till the operation stage.
b. X X X c. Workers of common service These
workers continue to 20% of pay such as security enjoy the benefit of staff,
Hospital staff, staff construction allowance at of Inspection Bungalow and all
the stages.
others.
d. Schools staff,Welfare Nil They cease to
get construCentre staff etc. ction allowance after the commencement of these
secondary stage.
X X X 999 NOTE : 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.
The appellant filed its written statement on
December 3, 1967. In paragraph 46, it has met the allegations contained in
paragraphs 51 to 53 of the Association's 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 township 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 a 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 win be seen
that the case of the appellant is that the construction allowance is paid only
to those employees who are in the construction camp, 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.
There is a reference to Annexure 'B' in
paragraph 50 of the appellant's 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 stated;
" ....It is 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 claims or at all." The learned Attorney General was
prepared to accept the position that the denial regarding Annexure 'B' in this
paragraph relates to the same Annexure 'B' filed by the Sangh along with its
written statement and referred to in paragraph 16 of their 1000 written
statement. It must be stated that if paragraph 50 has riot' met with the
averments in Annexure'B', there is no other paragraph in the written statement
of the appellant dealing with Annexure 'B'. Therefore, it is reasonable to
proceed on the basis that the only paragraph dealing with Annexure 'B' is this
paragraph 50. The point to be noted is that while the Sangh has categorically
stated in annexure 'B' (which was part of the written statement filed as early
as October 7, 1967) the workers' coming under category (c), who get
construction allowance at all stages, and the workers coming under category
(d), who cease to get construction allowance after the commencement of the
secondary stage, the appellant, though it filed its written statement only as
late as December 2, 1967, has not explained nor given any information as to the
circumstances under which these two categories either get or do not get
construction allowance, and if so, under what circumstances, The appellant was content
with merely denying the claim made in annexure 'B'. It must be emphasised that
while the appellant has specifically taken the plea in paragraph 46 of its
Written statement that construction allowance is paid only When the employees
are actually, so to say, stationed at the construction site, there was a duty
on its part to properly explain and given particulars how the workers, such as
security staff, hospital staff, staff of inspection bungalows and others got
construction allowance and the employees of the schools, welfare centers and
other staff did not get that allowance. One would have expected the appellant
to clearly refer to the nature of the duties performed by these various
employees coming under categories (c) and (d) as well as the places where they
are located, namely, whether at the construction site or at places where a
township has grown and amenities are available. At this stage we can also
mention that even during the trial of the proceedings, the appellant has not
adduced any evidence in respect of the matters that we have just mentioned,
though it has produced evidence, oral and documentary.
We will now refer to the oral evidence
adduced in the case.
PW-1, the Joint Secretary of the Association,
has stated in chief examination that the management does not pay construction
allowance to all categories of workmen at the same place. He has further
deposed that at the same station some are paid such allowance and other workmen
of the same category do not get the same. In cross-examination, he has stated
that construction allowance was given to workers connected with the
construction work whether they stayed in the construction camps or not. He has
further deposed that construction allowance, was given to remove hardship
arising from the site of work and to compensate for' absence of amenities, like
schools, hospitals, bazars and benefits of civilised life. When the
construction has progressed, townships and colonies have grown with all
amenities at some 1001 stations. PW-2, the Joint Secretary of the Sangh, has
stated that all the sites of work under the management have not been provided
with schools, bazars, hospitals and other amenities The material part of the
evidence of MW-1, Director of Personnel, who gave evidence on behalf of the management,
is as follows :When work on any project has started at any site, where no civic
amenities are available, the site is termed as 'construction camp' and persons
employed therein are given construction allowance to compensate for lack of
civic amenities. Till the work there is completed and the camp is declared a
non-construction camp, every employee working therein gets construction
allowance. It may happen that a portion of a project has been completed and has
gone into operation and the remaining portion of the project is at the
construction stage. In such cases, the establishment is divided into a
construction establishment, attending to construction which is still going on,
and an operational establishment. All employees of construction establishment
get construction allowance, which is withdrawn in a phased manner from the
employees of the operational establishment.
When construction work at one construction
camp is complete, such of the regular employees, as are required for
operational work at the camp are retained there and the remaining regular
employees are transferred. If they are transferred to another construction
camp, they get construction allowance; whereas if they are transferred to a
non-construction camp, they will not get construction allowance. 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.
We have generally set out the nature of the
materials on record. From the above materials, the following conclusions
broadly emerge :Construction allowance is paid to employees of the regular
establishment, who are stationed at the construction camps, in view of the
arduous and exacting nature of construction duties they perform. Construction
allowance is given to compensate for the lack of civic amenities. Even the
regular employees, who are at their headquarters, but have to visit the
construction site during the process of construction, are, according to PW-1,
paid the construction allowance.
There is no controversy the employees, who
are stationed at the construction site and are employed therein are eligible
for being paid the construction allowance. There is also no controversy that
the employees, who are doing the operational work, which must be in a place
where amenities are available, are not eligible 797SupCII73 1002 for
construction allowance., The controversy arises, regarding the, regular
employees, who are in the same station, but some of whom are doing operational
work and others do construction work in an extension project.
The claim of the workmen is that no
distinction should be made in the matter of payment of construction allowance
to the regular employees, who are posted at the same station, me-rely on the
ground that some of them are employed in operational work and the others are in
construction work, in connection with the extension of a project. According to
them, the employees doing work in the construction project are not stationed at
the construction site. On the other hand, they are also stationed in a township
where amenities are available. If under such circumstances, they are paid
construction allowance, which is really to compensate for lack of such
amenities, there is no reason why the said allowance should not be paid to the
operational staff working at the same station merely because civic amenities
are already provided. The sum and substance of the claim of the workmen is that
under such circumstances both types of workmen, posted at the same station
should be paid construction allowance.
Very strong reliance has naturally been
placed on behalf of the respondents on Annexure 'B' filed along with the
written statement of the Sangh on October 7, 1967. We have already referred to
the averments in paragraph 16 of the said written statement as well as the
contents of Annexure 'B'.
The workers under category (c) in this
Annexure are getting the construction allowance. There is no evidence placed
before the Tribunal by the appellant regarding the places of work of the
employees coming under category (c); nor explaining the reasons qualifying such
workmen to get the construction allowance. According to the unions,. school
staff and welfare centre staff coming under category (d) are also similarly
situated as the employees under category (c) and that there is no justification
for denying construction allowance to those workmen.
The learned Attorney General no doubt urged
that except filing Annexure 'B' along with the written statement, neither PW-1
nor PW-2, who gave evidence on behalf of the unions, has explained the contents
of Annexure 'B' and given any information as to the circumstances under which
the workers coming under category (d) are eligible to get construction allowance.
The learned '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 1003 categories of workmen coming under items (c) and (d).
We have already referred to the facts 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 and 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 operational work and the others 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.
According to the circulars already referred
to, the essential qualification for getting construction allowance is that the
employees must be stationed at the construction camp site. , This is emphasised
by the circular dated 14-21973. The reason for such payment is the arduous and
exacting nature of construction duties and the lack of civic amenities at the
camp site. Obviously, the appellant has modified the above principle. The
evidence of MW-1 shows that construction allowance is paid to employees who are
posted at headquarters but have to visit the construction site during the
process of construction. The essential qualification for receipt of
construction allowance viz. of being stationed at construction camp site, has
been modified by the appellant. If such employees are posted of stationed at
headquarters, they will be enjoying the civic amenities in the same manner as
the other employees who are doing operational work at the same headquarters.
Thus there 1004 is, no distinction between them in the matter of enjoying of
civic amenities. The former as paid construction allowance while the latter do
not got the same.
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 the case of the appellant that the Hospital staff, referred to earlier, is
stationed at the construction site. It is not even 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 during the
arguments that a Doctor now and then visits the construction site to attend on
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
construction site. Leaving out the Doctor for the moment, there is not
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 the hospital.
Though we are not concerned with the question
whether the staff of the hospital should or should not get construction
allowance, we have referred to the above circumstances only to show that there
is no justification for denying construction allowance to the employees coming
under item (d) or Annexure 'B'. The appellant has neither pleaded nor
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.
In view of the materials on record, in our
opinion, the Tribunal was justified in holding that the employees, who are
posted at the same station, some doing construction work and other operational
work, will both be entitled to construction allowance, as the two sets of
employees have to be treated and paid uniformly. The appeal in the result fails
and is dismissed with costs of the respondents one set.
V.P.S.
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