DAMODAR VALLEY CORPORATION versus WORKMEN

DAMODAR VALLEY CORPORATION

WORKMEN

April 18, 1973

(A. N. GROVER AND C. A. VAIDIALINGAM, JJ.]

Industrial dispute-Right of employees to construction allowance.

One of the disputes between the appellant and the respondents, re-ferred 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 quali-fication 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, cons-truction 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 head-quarters they will be enjoying the civic amenities in the same manner as the other employees who are doing operational work at the same head-quarters. 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 justUication for denying cons-truction allowance to the employees coming under the cate_gory 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. r998 A; 1001 G-H; 1003 E-H; 1004 ~GJ

CIVIL APPELLATE JURisorc'iroN :· 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 Refe-rence No. NIT-2 of 1967.

Niren De, Attorney-General for India, and D. N. Mukherjee, f<Y- the appellant.

D. L. Sen Gupta and S. K. Nandy, for respondent No.2.

D.V.C.V. WORKMEN (Vaidialingam, J.)

The Judgment of the Court was delivered by

VAIDIALINGAM, J. In this appeal,·by specialle~ve, 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 payaple to any categories oi regular employees for extension of exjsting projects after the operation stage has commenced? If so, to what extent and to which categories of regular employees?"

'The unions clrumed payment of construction allowance. to the 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 Trib!l!!nal has further directed such payment to be made uniformly to all 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 com-pensate those employees tor 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 town· ships enjoy all the am.enities 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 workm~n.

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 domg 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 const:I1Uotion site that are eligible for much payment, is 8 contrary even to the evidence adduced on behalf of the appellant. The learned counsel also drew our attention to the relevant aver-ments in the unions' written statenrents 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 this stage we may mention that the learned Attorney stated may mention that the learned Attorney stated

At this stage this stage we may mention that the learned Attorney stated 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 the management as well as the material part of the pleadings. Annexure I 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 :-F

(iv) Thereafter Nil ----------·-------------

The above redu~ible allowance shall. ~ admissible to such of the employ~ 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 19S2. In fact both the unions Tepresenting the workmen admitted this fact in their written

statements. From the extract given ~bove, 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 con-struction camps. In order to soften the rigour of its withdrawal,. the said payment is slowly stopped in the circumstances arid 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 procee.ds to state: "It has been decided by the Corporation to continue the grant of Construction Allowance at the rate of 20% oe pay (rounded to the nearest (rupee) up to maximum of Rs. 100/- p.m. The admissibility of t~e allowance wjll be subject to the following conditions:-

( 1 ) Construction Allowance, which will be i-n the nature of Compensatory Allowance, will be admissible to:-D ( a) all employees in the regular establishment stationed at Construction Camps;

NOTE : "Construction Camps" means all camps which have been specifically set up by the DVC for construction work and where such work is either due to start or is in progress. They will cease to be considered as "Construc-tion 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) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connec-ted with construction and lie ou~side radius of 5 miles from the respective township,

(c) The staff employed on the construction substa-tion at Loyabad, Sindri and other elaces as well as the. staff stationed at Kodanna, Hazaribagh Road Station, Gomia, Tasra and Muri.''

From the circular ol 1953 it is clear that the eligibility for rec~ivng construction allowance is that the employee should be stat10ned at construction camp, unless he comes under clause

(b) of paragraph l. Prima-facie these two circulan give impor··

[1973] 3 s.c.R..

'998 SUPREME COURT 1\:EPOR.TS

tance to the employee being at particular place where he is discharging an arduous and exacting nature of construction work.

We will now refer to the pleadings. The workmen were rep-:resented 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 19S2 and the same was .being given to the wor~ers who work in the construc~ion divisions only. The rate of C.A. was 20% of pay subject 'to 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 ot the v.:ritten statement it has stated:

"That me chart marked annexure 'B' will show at glance which categories of workmen and at what stage rof work and under what circwnstances 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 peing 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 allow-ance. 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 W::>rkers borne on 20% of pay Workers get construction allow. regular Establishment ance from the very beginning till th! operation stage, 'b, X X X c. Workers of common ser-20% of pay These workers continue to e~oy vices, such as security the benefit of construe on staff, Hospital Staff, staff allowance at all the staaes. of Inspection Bangalow and others. od. Schools staff, Welfare Nil They cease to get construction Centre staff etc. allowance after the commence-ment of th~s secondary stage. oe, X X X

A. NOTE: Construction camp (for the purpose ol construction allowance) means all camps which have been _specifi· cally 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 com· pleted."

It is to be noted that in Annexure •a•, the Sangh had catesorl· cally stated that the workers of common services, such as s.ecurity staff, hospital staff, staff of inspection bunsalows and others were gettins 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 secondacy stage,

The appellant filed its written statement on December 3, 1967. In p~ragraph 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 com· 0 pcnsate the employees, at construction camps, when construction of project has commenced in rural or hilly areas without any of the amenities of townsliip for the deprivation of such amenities. The appellant has further stated that the employees engaged in the operation of project, after it has reached the operational ·stage, ·arc not justified in claiming 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 will 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 goin,g on. It is only then that those employees will not be having the amenities of township iF because the construction site will be in rural or hilly area.

There is reference to Annexure 'B' in paragraph 50 of the appellant's written statement. major part of thall: paragraph deals with some of the averments mde by the Association. Wtth re&ard 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 an 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 dts written statement and referred to in paragraph 16 of their

written statment. It must be stated that if paragraph 50 has not met with the averments in Annexure 'B', there is no other paragraph in the written statement of the appellant dealing wilth Atmexure 'B'. Therefore, it is reasonable to proceed on the basis that 'the only paragraph dealing with Annexure 'B' is this para~aph 50. The point to be noted is that while the Sangh has categonc~ly stat-ed in annexure 'B' (which was part of the written s_tatement 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 iiled 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 \\'hen the employees are actually, so to say, stationed at the construction site, there was duty on its part to properly explain and given particulars how the workers, su~h as security staff, hospital staff, staff of inspection bungalows and others got construction allow-ance and the employees of the schools~ welfare centres and other staff did not get that allowance. One would have e~pected the app~Jlant 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 comtruction site or at places where township has grown and amenities are available. At this stage we can also mention that even during 1he 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 documen-F tary. We will now refer to the oral evidence adduced in the case. PW-1. the Joint Secretary of the Association, has stated in chief e~amination that the mana~ement 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 aUowance was given to remove hardship arising from the site of work and to compensate for absence of amenities, like schools, hospitals, bazars and other " benefits of civilised life. When the construction has progressed, townships and colonies have grown with all amenities at some

D.v.c. v. WOI.DriBN (Yaidialingam, 1.)

stations. PW-2, tho Joint Secretary of the Sangb, has stated that all the sites of wo.rk under the management have not been provided with schools, bazars, hospitals and other amenities.

Tho material part of tho evidence of MW-1, Director of Personnel, who gave evidence on boha1f of tho management, is as follows :-B

When work on any project has started at any site, where no civic amenities• are. available, the site is termed as 'CQnsttuction 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 non-construction camp, every employee working therein gets con-e struction allowance. It may happen that r>rtion of project has ~ completed and has gone into .operation ~ the. remain-ing portion of the project is at the construction stage. In such cues, the establishment is divided into construction establishment, at-tending to construction which is still going on, and an operational establishment. All employees of construction establishment Jet construction allowance, which is withdrawn ip. 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; ~here8.s if they are transferred to 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 c~nstruction allow-ance.

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, paiQ. the construotion 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 place where amenities are available, are not eligible 16~ 797SupCI/73

SUPREME COU~T.REPORTS.

for construction allowance. The controver~y arises regarding the regular employees, who are in the same statJon, but so~e of who~n are doing operational work and others do construction work m an extension project. The claim of the workmen is that no dis-tinction should t)e made in the matter of payment of con!>uuction allowance to the regular employees, who are posted at the same station, merely 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 project. According to them, the employees doing work. in the construction project are not stationed at the construction site. On the other hand, they arc also stationed in township where amenities are available. lf under such circwnstances, they are paid construction allowance, which is really to compensate for l~ck 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 becaus.:! 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 t:onstruction allowance. [)Very strong. reliance has naturally been placed on behalf of the respondents on Annexure 'B' filed along with the written state-ment 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 ol Annexure 'B'. 1he workers under ·category (c) in this Annexure are getting the construction :lllowance. 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 · ~ucb workmen to get the construction allowance. According to the union.~, school staff and welfare centre staff coming under category (d) are also similarly situated . as 1he employees under cate~ory (c) and that there is no justification for denying cons· trucuon allowance to those workmen. .

. The learned Attorney General no Joubt urged that except fihng Annexure '13' ruong with the written statement neither PW-l nor PW-2, who gave evidence on behalf of\he unio~s. ha~ explain. cd th.c content., of Annexure 'B' and given any infonnatron as tL) the crrcums~a~ces under which the .workers comin~ under c::~tcgory (d) <~rc eligible to get construction allowance. The l~arn.:d Attornt'y General is right in his criticism that these two wit111.~sse'i have. nat !laid. anything in their evidence about Annexure 'B'. flut, 10 .our optnio~, that docs not absolve the appellant, who i-. in II J'{N,~:_·,·, rnn oC :Jll .mformation regarding the matters mentionl!d 1h·:rt:rn. from oiJcrng the necessary materials before the Tribunal to -..huw tht: di\tingui.,hing and differentiating features of the two

categorie.; of wvrkmen coming u.nder items (c) and (d). We have already referred to the fact that· Anne~ure 'B' was before the l'ribunal as early as Octobjer 7, 1967. The appellant filed Its written statement only on December 2, 1967. Except bald denial regarding Annexure 'B', the appellant has not assisted the Tribunal by placing before it details or particulars such as the 8 nature of work, the place where .he work is being done and other. relevant factors regarding the eligibility of the particulat· group of workroell under category (c) to get construction allowance. Nor has the appellant placed any such material regarding the non-eligibility for construction allJwance of the workmen corning 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 Lhe construction site or who are posted at their headquarters, but have to visit the construction site during the process of construction, arc paid construction allowance. That witness could have very well 0 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 time will come when there are two sets of employees, some connected with the operational work and the others coll!nected with the construction work of an extension project. The point to be noted from this evidence is that when the above two types or 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 emphasis-ed by the circular dated 14-2:1973. The reason for such payment is the arduous and ~acting 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 e;sential qualification for receipt of construction allowance viz. of being stationed at construction II camp site, has been modified by the appellant. If such employees are posted or stationed at headquarters, they will be enjoying the civic amenities in t:!e same manner as the other employees who are doing operational work at the same headquarters. Thus there

is no distinction between them in the matter of enjoying of civic amenities. 1be former as paid construction allowance while the latter do not get 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, relerred to earij.er, 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 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 argu-ments that 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 momentt 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 ~fore 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 con-struction allowance, it stands to reason that the employees under item (d) should also get1the said allowance, when b~h of them me posted at the same place.

fu .view of the materials on record, in our opinion, the Tribunal was i\lStified in holding that the employees, who are posted at the same station, some doing construction work and other operational work, wm 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 res-pondents one set.

Appeal dismissed