IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (PIL) No of 2012 With I.A. No of 2014

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1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (PIL) No of 2012 With I.A. No of 2014 Prem Kataruka, son of Late S.S. Kataruka, Resident of Vishnu Talkies Lane, P.O. : G.P.O., P.S.: Kotwali, District: Ranchi Petitioner Versus 1. The Union of India 2. The Secretary, Ministry of Finance, Government of India, New Delhi 3. The Secretary, Ministry of Coal, Government of India, Shastri Bhawan, New Delhi The Secretary, Ministry of Heavy Industries and Public Enterprises, Government of India, New Delhi The Chairman, Coal India Limited, 10, Netaji Subhash Chandra Road, Calcutta Respondents CORAM: HON'BLE MR. JUSTICE D. N. PATEL HON'BLE MR. JUSTICE PRAMATH PATNAIK For the Petitioner : Mr. S.L. Barnwal, Sr. Advocate Mr. Shiv Prasad, Advocate For the Union of India : Mr. Rajiv Sinha, A.S.G.I. Mr. B.K. Prasad, Advocate For the Coal India Limited : Mr. Anoop Kumar Mehta, Advocate Mr. Amit Kumar Sinha, Advocate Mr. Sharad Kaushal, Advocate 20/Dated: 6 th January, 2015 Per D.N. Patel, J.: 1. This Public Interest Litigation has been preferred with following prayers: (a) For quashing of the order of the Coal India Limited, being Order No. CIL/Pers/PR/ /73/G dated (Annexure 19), by which the Board of Directors of Coal India Limited has approved for payment of lump sum amount recoverable advance for financial years , , to Board Level and below Board Level executives of C.I.L. and its subsidiaries which has been issued arbitrarily, without having jurisdiction and without the approval of D.O.P.T., Ministry of Heavy Industries & Public Enterprises and without the sanction given by the Ministry of Coal and the amount has been disbursed with malafide intention, just to enrich the officers only of C.I.L. and all its subsidiaries and accordingly a huge financial caused to the country by giving double payments to officials. (b) For fixing responsibilities on those persons who hastily paid the P.R.P. without the due sanction of the D.O.P.T. the Coal Ministry and Ministry of Heavy Industries & Public Enterprises, Govt. of India without unanimous resolution of giving performance related pay by Board of Directors. (c) For a detail enquiry in the above matter, either by Central Vigilance Commission or an enquiry by Central Bureau of Investigation into the performance related pay and all other financial irregularities and misappropriation of Government funds by the officials & others machinery

2 2 connected, directly or indirectly with the Coal India Ltd. or investigation by any other agencies, which this Court thinks appropriate. 2. Learned counsel appearing for the petitioner submitted that the Performance Related Pay (for the sake of brevity hereinafter referred to as the PRP ) which is paid to the employees of Coal India Limited (for the sake of brevity hereinafter referred to as the CIL ) is nothing, but, the misuse and wastage of the public fund. It is further submitted by learned counsel for the petitioner that despite the heavy loss in the CIL and its subsidiaries, the PRP is being paid. Thirdly, it is submitted by learned counsel for the petitioner that such PRP cannot be paid to all the employees and lastly it is submitted that from various annexures, annexed with the writ petition as well as with I.A. No of 2014 as well as with the supplementary affidavit, it will reveal that in fact much exaggerated figure of manufacturing of coal is being shown by the employees of CIL and unnecessarily they are getting the PRP. 3. Learned Assistant Solicitor General of India appearing for the Union of India submitted that detailed counter affidavit has been filed and it is submitted by him that this is not a Public Interest Litigation, at all. Secondly, the PRP has a direct nexus with the Presidential order and the direction given in different notifications. Thirdly, it is submitted that there is definite methodology of calculation of the PRP and since long the PRP is being paid. It is further submitted by the learned ASGI that initially PRP was paid to very limited employees of the CIL as they were transferable to other subsidiary companies which are running in loss, but, the fact remains that such employees are transferable and despite there is an efficient order, for several reasons there are loss in subsidiary companies and, therefore, general demand was raised by the employees of subsidiary companies of the CIL that PRP should be paid to all the employees. Time and again, recommendations have been made by separate Committees including the Committee of Ministers at Central level and now it is

3 3 under active consideration before the Committee of the Ministers. Nonetheless, at present PRP is paid to all the employees along with a rider that it is being paid subject to the outcome of the final decision by the Central Government and it will be recoverable, if the decision is taken against the employees. Detailed annexures have been annexed with the counter affidavit filed by the Central Government. It is further submitted that the PRP is basically on the basis of circular of the year 2008 which is meant for other Public Sector Undertakings and not for CIL only. The circular of the year 2008 was again discussed at length, looking to the rival claims and it was reiterated in the year 2009 to follow the said circular of the year Even after 2009 also, various issues have been raised about the PRP and now the matter is under active consideration before the Committee of Ministers and, hence, this Public Interest Litigation may not be entertained by this Court. 4. Looking to the affidavit filed by the CIL, the history of PRP has been mentioned in different paragraphs and the directions issued by the Central Government which are binding to the CIL under Article 37 of the Articles of Association of the CIL. Annexures have also been annexed with the counter affidavit filed by the CIL wherein, it is submitted that the concept of the payment of additional pay can not be said to be arbitrary. There are guidelines for the payment of the PRP. There is a definite calculation also for the payment of the PRP. Thus, payment of the PRP is a sound concept, which is based upon the guidelines of the Central Government. If there is any violation in following those guidelines in one or two cases or in a few cases, it can not be said that the policy decision itself is wrong. Thus, it is submitted by learned counsel for Union of India as well as by the CIL that on the basis of a definite policy decision, the PRP is being paid to the employees and straw violation of the policy does not make the policy illegal or bad. Thus, few violation may be taken

4 4 care of by necessary departmental actions, but, that does not mean the policy decision for payment of the PRP is bad in law. Even otherwise also, this Court will be very slow in entertaining the Public Interest Litigation in service matters, whenever policy decision is taken by the Central Government and, hence, this Public Interest Litigation may not be entertained by this Court. Reasons: 5. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Public Interest Litigation mainly for the following facts and reasons: (i) Looking to the tone of the argument canvassed by the petitioner, it appears that there are lot of grievance ventilated by this petitioner for the payment of the PRP to the employees of the CIL. This makes the Public Interest Litigation more of the nature of service matter and for service conditions. (ii) Though the learned counsel appearing for the petitioner submitted that this is a Public Interest Litigation and not of the nature of service matter, we are unable to agree with him. The golden thread running through contention is about the payment of the PRP and if we look at the payment of the PRP, it appears that it has a direct nexus with the service of the employees of the CIL. Thus, this matter has a direct nexus with service matter and, hence, looking to the decisions rendered by the Hon'ble Supreme Court reported in (2005) 5 SCC 136; (2010) 9 SCC 655; and (2004) 3 SCC 349, this is a Public Interest Litigation in service matter and it has direct nexus with the service condition of the employees of the CIL and therefore, it is not maintainable. (iii) It further appears that the petitioner has lot of grievance about the payment of the PRP mainly of the reason that there is a heavy loss with

5 5 the CIL and its subsidiaries. Learned counsel for the petitioner has argued out the case for approximately one hour and has taken this Court to various annexures and has submitted that there is loss with this company and, hence, the PRP may not be paid because there is no good performance of the employees. We are unable to agree with this contention also mainly for the following reasons: (a) The employees of the CIL, which is a holding company, are transferable to the subsidiary companies and, therefore, if there is loss in subsidiary companies, but, if an efficient employee of the CIL is transferred to its subsidiary company, he will be entitled to the payment of PRP. Profit or loss will be taken as a whole for the holding as well as subsidiary company. (b) The payment of additional amount over and above the salary, may be in the form of bonus, may be in the form of variable pay or may be in any other format including the PRP, always depends upon the policy decision taken by the employer and this Court will be very slow in disturbing the said policy decision. This Court is not sitting in appeal upon the policy decision of the Union of India. This Court cannot change the existing policy, even though the Court has capacity to draft a better policy because policy decision is purely and absolutely an administrative decision and in a judicial review, such type of policy decisions can not be altered on the grounds which are mentioned by the learned counsel for the petitioner. (c) Learned counsel for the petitioner has stated that there is loss to the subsidiary companies and, therefore, PRP should not

6 6 have been paid to the employees. This is an absurd argument mainly for the reason that the profit or loss depends upon several factors including the market, Government policy, value of rupee in international market etc., whereas, the performance of the employees depends upon his ability to work. The PRP is nothing, but, the appreciation of the ability of the employees. The PRP is not a premium to the loss and, therefore, if the Union of India is of opinion that if the performance of any employee is good, then it is a prerogative power of the Union of India to make payment of the PRP, irrespective of the fact that whether there is any profit or loss. (d) The philosophy of the payment of additional amount over and above the remuneration is very old concept e.g. under the Payment of Bonus Act, there is a concept of payment of minimum bonus. Thus even though there is a loss, looking to the performance of the employee, additional remuneration is always being paid by the employer because profit or loss depends upon the fluctuation of the market and several other such type of factors. The profit or loss also depends upon the value of the rupees in the international market, but, what is to be appreciated for the payment of PRP, is efficiency of an employee and not the profit or loss of the said company. (iv) Looking to the counter affidavits filed by the Union of India as well as the CIL, detailed history of the payment of PRP has been given. The concept of the payment of the PRP is based upon very sound logic and policy decision, which is not absurd nor it can be labelled arbitrary. (v) The whole concept of the payment of the PRP was initially looked into by a particular Committee under the Chairmanship of the retired

7 7 Hon'ble Mr. Justice M. Jagannadha Rao, retired Judge of the Hon'ble Supreme Court of India. There were certain recommendations by the said Committee and thereafter, office memorandum dated 26 th November, 2008 was issued. This document is a Magna Carta for the payment of the PRP. (vi) The said office memorandum dated 26 th November, 2008, was not only meant for the CIL, but, was also meant for all Central Public Sector Enterprises. There is reference of the payment of variable pay/ Performance Related Pay (PRP). (vii) Time and again, this circular was discussed at a high level administrative official and again in the year 2009, the Government of India has reiterated vide office memorandum dated 9 th February, 2009 that earlier office memorandum dated 26 th November, 2008 shall be adhered to. (viii) Thus even in the year 2009, the methodology of implementation of the PRP was reaffirmed and definite decision was taken by the Central Government. (ix) It further appears that since there was hue and cry about the implementation of the PRP to the general employees of subsidiary companies, because at the relevant time, only the employees of holding company were getting PRP, as they were transferable to subsidiary companies, once again Committee of Ministers was appointed and it has been decided that even the employees of the subsidiary companies of the CIL should be paid the PRP. (x) Time and again, necessary directions have been issued under the authority of His Excellency the President of India, in exercise of the power conferred under Article 37 of the Articles of Association of CIL.

8 8 The directions and the office memorandum are nothing, but, the policy decision and they are binding to the CIL and its subsidiaries. This policy decision is evenly applicable to all the employees of the CIL as well as its subsidiaries. (xi) Moreover looking to the counter affidavits filed by the Union of India as well as by the CIL, there is a definite methodology of the calculation, as stated in the office memorandum dated 15 th November, 2011, which is also annexed with the counter affidavit. Thus, it can not be said that there is any arbitrariness nor it can be said that there is any illegality in calculation for payment of the PRP. (xii) The concept of the payment of the PRP is based upon very sound logic, which encourages the employees of the concerned Public Sector Undertakings and those who are not getting the PRP will also put more labour so that they may be entitled to get the PRP and thereby the company will be benefited. 6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we see no reason to entertain this Public Interest Litigation. There is no substance in this Public Interest Litigation and, hence, the same is, hereby, dismissed. 7. Accordingly, I.A. No of 2014 also stands dismissed. (D.N. Patel, J.) Ajay/ (Pramath Patnaik, J.)