Jogighopa Ashok Kagajkal Sramik Santha, Represented by the Secretary Vs. The State of Assam, Represented by the Chief Secretary to the Government of Assam and Others - Court Judgment

Oral

1. This writ petition was filed in 2008 by the Jogighopa Ashok Kagajkal Sramik Santha, represented by its Secretary, C/o- Ashok Paper Mill (Assam) Ltd. District- Bongaigaon, Assam. Apart from the prayer for appropriate decision in respect of the Mill and also the future of its employees and workers, further prayer made is to direct the respondents to pay the admissible salaries to the existing employees and workers for the periods indicated in the prayer portion of the writ petition specified as:-

“Take appropriate steps to clear the outstanding dues to the employees and workers of the Mill for the period of April-May of 1995, August 1997 to October, 1997 and October 1998 to 7th March, 2008.

Take appropriate steps to make up to date the provident fund accounts of the employees and workers of the Mill in question for the gap period i.e. w.e.f. 01.04.1995 up to 30.09.1998 of all the employees/workers including those who retired and expired in the meantime.”

Another prayer made in the writ petition is to revise the pay structure of the employees and workers along with adequate bonus, incentives and also to make payment of medical benefits employment insurance scheme etc.

2. Basically the prayer of the petitioner is to provide the employees and workers of Ashok Paper Mill Ltd their due salaries and service benefits, but since said prayer is required to be considered in reference to the status of the Ashok Paper Mill Ltd, this Court while taking up the matter from time to time, required the respondents to apprise the Court about the possibility of revival of the Ashok Paper Mill. Taking note of all the facts and circumstances, this Court passed the following order on 04.09.2014:-

“This writ petition has been filed by Jogighopa Ashok Kagajkal Sramik Santha, a registered Trade Union, espousing the cause of the employees and workers of the Ashok Paper Mills (Assam) Ltd. The prayer made in the writ petition is to take a specific decision in respect of the Mill and the future of its employees and workers within a specific period. Certain other prayers relating to service conditions of the employees and workers including payment of arrear salary etc have also been raised.

 The matter is pending for the last six years. Having regard to the issue involved relatable to the Assam Accord (Annexure- A), the respondents were directed to intimate the Court about the steps taken for revival of the Ashok Paper Mill in terms of the said Assam Accord. As the orders passed in this proceeding would reveal, the respondents in their affidavits filed from time to time have highlighted the position relating to revival of the Ashok Paper Mill. The Chief Secretary of the State in his affidavit filed on 24.01.2011 highlighted the efforts purportedly taken by the Government of Assam for revival of the Ashok Paper Mill. This aspect of the matter has been recorded in the order passed on 14.06.2011 . By the said order, the Chief Secretary of the State was directed to apprise the Court as to the possibilities or otherwise of revival of Ashok Paper Mill as per the Assam Accord.

 The matter was thereafter taken up on 20.07.2011 and when it was found that the aforesaid specific query was not dealt with, the Chief Secretary of the State was directed to file affidavit clarifying the position. Thereafter, the matter was taken up on various dates for further consideration. As recorded in the order dated 29.05.2012, there was a cabinet decision in the meeting held on 21.01.2011 , in which out of the three options, the cabinet decided to pursue option No. I and III. The options are indicated below: -

“I. Request Department of Heavy Industries/Hindustan Paper Corporation Limited to take up the Greenfield project, subject to making the CIS available to HPC Ltd.

II. Revert to Central Government and seek assistance for setting up Greenfield project under Assam Accord.

III. Solicit private parties through an open Expression of Interest for participating on a PPP mode with AIDC for establishing the unit. ”

As recorded in the said order dated 29. 05. 201 2, it was not clear from the affidavit as to whether the Ashok Paper Mill is still at the stage of revival and for that matter whether the Assam Accord pertaining to the same was implementable or not. Accordingly, the Chief Secretary of the State was directed to file affidavit about the outcome of the exploration indicated in the aforesaid options. He was also directed to answer as to whether there is any possibility of revival of Ashok Paper Mill and for that matter the clause relating to the same in the Assam Accord.

The Chief Secretary of the State filed an affidavit on 18.07.2012, in which there is mention about the order passed in this proceeding on 16.08.2012. As disclosed in the said affidavit, there was meeting with the Union Government officials on 16.05.2012. The meeting was organized by the Ministry of Home Affairs, Government of India for reviewing the implementation status of the Assam Accord, in which the matter of revival of Ashok Paper Mill was also discussed at length. As decided in the said meeting, the Ministry of Heavy Industries, Government of India was to look into the issue and at the highest level including early environmental clearance for the project, in a time bound manner. As minuted in the said meeting, earlier it was decided that taking over of Ashok Paper Mill by Hindustan Paper Corporation Ltd (HPCL) would also be considered.

When the matter was again taken up on 09.01.2013, Mr. D. Saikia, learned Additional Advocate General, Assam made a submission that efforts are being made for revival of Ashok Paper Mill. However, it was submitted that the State Government of its own cannot revive the same unless adequate support is given by the Union Government in the Ministry of Heavy Industries and Public Enterprises. Referring to the particular clause in the Assam Accord, it was recorded thus in the order dated 09.01.2013: -

“Revival of the Ashok Paper Mill was emphasised in the Assam Accord of 1985, which was signed in presence of the then Prime Minister. For revival of the Ashok Paper Mill and for that matter implementation of the particular clause of the Assam Accord to which the Union Government was a signatory, its meaningful response will be required.

In view of the above, the Union Government, Ministry of Home Affairs and Ministry of Heavy Industries and Public Enterprises are directed to show their response in respect of revival of the Ashok Paper Mill in terms of the Assam Accord by the next date fixed. Already enough time has been consumed without any response by the said two Ministries. If by the next date fixed no positive response is shown by the said two Ministries of the Union Government, personal appearance of the Secretaries and/or any other authorised Officers of the said two Ministries will be considered. ”

The matter was again taken up on 19.07.2013. When there was no response from the Union Government in the Heavy Industries Department, a cost of Rs. 10, 000/- in addition to the earlier cost of Rs. 10, 000/- was imposed on the said Ministry/Department. The matter was again taken up on various dates including 12.11.2013, on which date the following written instructions as the outcome of the meetings held on 09.10.2013 and 11.10.2013 was recorded: -

“In the meeting held on 9th October, 2013 under the chairmanship of Additional Secretary, Department of Heavy Industry, Government of India, it was felt that the report prepared by Ashok Paper Mill was found to be not feasible due to non- availability of required fiber to support the production. Therefore, HPC was asked to engage a technical consultant to prepare quickly a TEFR based on the actual availability of raw material. However, while submitting the TEFR it was highlighted that the marketing of the products needs to be examined in detail keeping in view the existing as well as prospective capacities that are coming in this segment.

In the meeting held on November, 11, 2013 under the Co- Chairmanship of Secretary, Department of Heavy Industry, Government of India and Chief Secretary, Assam, a detailed discussion on TEFR was held. During the discussion CMD, HPC informed that their subsidiary NPPC is coming up shortly in Nagaland. With this, total production capacity of HPC mills in the North East region will be 2.66 lakh tones of printing and writing paper per annum. In addition to this, a few paper mills in the private sector are also being set up. At present the demand of NE region is to be tune of 40 to 45 thousand tonnes per annum. Therefore, any further addition to the existing capacity in the writing and printing paper segment may face difficulties in marketing.

In view of the various aspects of the matter and the difficulties in the marketability of the writing and printing paper to be produced by the proposal unit of APM, all present in the meeting were of the view that suitable alternatives be worked out so as to establish an integrated industrial unit at the venue of the APM which serves the dual objective of providing employment to locals by utilizing the locality available resources.

It was also felt that if APM is revived with a capacity of 30, 000 tonnes per annum it may face difficulties on account of demand supply scenario in the NE area, limited range of products envisaged, raw material and logistical issues thus leading to a situation which might impact the unit adversely making it unviable. Instead, going in for a viable option on a long term basis envisaging diversification of products would be better.

Therefore, it was decided that HPC shall arrange to undertake a comprehensive analysis on the above lines and give a report within 3- 4 months. ”

 As recorded in the said order dated 12.11.2013, as per the said written instruction, there was a proposal for suitable alternative so as to establish an Integrated Industrial Unit at the venue instead of revival of the Ashok Paper Mill. When the matter was again taken up on 28.01.2014 and 22.04.2014, the following orders were passed: -

“28.01.2014: -

Heard learned counsel for the parties. Mr. D. Saikia, learned AAG, Assam has produced the letter dated 06/11/2013 addressed to him by the Government of Assam in the Industries and Commerce Department under the signature of the Deputy Secretary. Along with the said letter, certain documents have also been enclosed, one of which is the letter dated 18/10/2013 on the subject of Minutes of the Meeting to discuss the issues related to revival of Ashok Paper Mills, Assam, addressed to the Government of Assam by the Government of India in the Ministry of Heavy Industries and Public Enterprises.

As per the minutes of the meeting that was held on 09/10/2013, the issue relating to implementation of the project was discussed. The CMD, HPC had informed that the HPC's financial health is not good and accordingly it might be difficult to take up any big project like revival of Ashok Paper Mill, Assam. Therefore, the possibility of either sanctioning of funds by the Government of India directly to Government of Assam or formation of a separate new Company under Government of India (DHI) were to be considered. In the said meeting, it was decided that the HPC should submit TFR by 25/1 0/201 3, which would form the basis for discussion in the meeting between the Chief Secretary, Assam and Secretary, DHI to be held in the first fortnight of November, 201 3 for finalizing the approach for revival of Ashok Paper Mill, Assam.

Both Mr. D. Saikia, learned AAG, Assam and Mr. J. Roy, learned Standing Counsel, HPC have prayed for 1 0 (ten) weeks' time to furnish latest status report. Prayer is allowed.

As regards the submission made by Mr. H. R. A. Choudhury, learned senior counsel appearing for the petitioners regarding payment of salary etc, the respondents may do the needful in terms of the earlier orders passed by this Court.

List on 08/04/2014. ”

“22.04.2014

Heard learned counsel for the parties. Both Mr. D. Saikia, learned AAG, Assam and also Mr. J. Roy, learned counsel representing the HPC submit that certain process has been initiated in the matter and that the respondents would required further 3- 4 months time to submit necessary report. As regard the payment of salary and service benefits etc to the employees of the Ashok Paper Mill Ltd., it is submitted by Mr. Saikia, learned AAG, Assam that a substantial amount has been released in favour of the employees. He also submits that newspaper notification has also been issued inviting response from the legal representative of the employees who have already expired.

In view of the above, let the matter be listed on 04/09/2014. ”

Amidst the aforesaid developments, certain orders were also passed towards payment of arrear salary to the employees and workers of the Ashok Paper Mill ltd. The fact of the matter is that although the Ashok Paper Mill is not in a running condition and has become defunct over the years, its employees and workers are still in the employment rolls without however, any regular salary and other dues. In this connection, Mr. H. R. A Choudhury, learned senior counsel appearing for the employees and workers has drawn my attention to the statements made in Misc Case No. 2473/201 4 filed by the petitioner on 29. 08. 201 4. In the said application, the dues payable to the employees and workers have been highlighted. In paragraphs 5 and 6 of the said application, it has been stated thus: -

“5. That the existing retired and expired employees and workers of the A. P. M (A) Ltd have not got the gratuity w. e. f. 01.04.1995 to 07.03.2008 till today but the employees and workers of the Head Office of APM(A) Ltd are entitled all the benefits as per ROP Rules of State and as such they have been getting bonus gratuity and salary as per revised rate of the State.

6. That from 03.04.1998 to 28.08.2013, 136 Nos of employees and workers superannuated from their services without the outstanding dues, 44 Nos. employees and workers expired and their legal heirs also have not been got same benefits and existing 1 82 employees and workers some others are going to the age of superannuation and 75 Nos. of retired and 1 9 Nos. of expired employees and workers have not received their outstanding arrear salaries/pension/P. F/Gratuity and other service benefit till today. The respondent Nos. 7 and 8 have not placed the said matter of the employees and workers of the A. P. M(A) Ltd before the appropriate authority as such the respondent Nos. 7 and 8 think only about the employees and workers of the Head Office, APM(A) ltd, Guwahati, that is why, one Grade- IV employees withdraw their salary at Rs. 8, 000/- onwards and Office Assistant at Rs. 15,000/- onwards whereas the petitioners withdraw at Rs. 2,000/- to at Rs. 3,500/- p. m. as their current salaries. It is gross- violation of the law. ”

In paragraph- 6, the petitioner has also referred to the list of retired and expired employees and workers, who did not receive their pension/family pension/PF/Gratuity and other service benefits.

Mr. B. D. Das, learned senior counsel representing the Ashok Paper Mill Ltd prays for time to obtain instruction in respect of the said miscellaneous application. Mr. P. Naik, learned counsel representing the State Government also prays for time. Mr. J. Roy, learned counsel representing the HPCL has also prayed for time to apprise the Court about the latest position.

As noted above, the matter is pending for the last six years and except series of meetings and proposals for revival or otherwise of the Ashok Paper Mill Ltd, nothing concrete has come out.

In that view of the matter, the Chief Secretary of the State and the Union Government in the Home Department, representing by Mr. S. C. Keyal, learned Asst. SGI are directed to furnish the following information on the next date fixed: -

(i) Whether there is any remote possibility of revival of the Ashok Paper Mill in terms of the Assam Accord referred to above and if so, within what time limit. If the answer is in the negative, the affidavit should specifically indicate that to that extent the Assam Accord has failed;

(ii) What the State Government propose to do with the employees and workers of the Ashok Paper Mill Ltd, who are still in the employment rolls and whether they would be paid their outstanding dues and if so, within what time limit;

(iii) Whether the State Government would adopt any policy decision as the measure of one time settlement towards dispensation of the services of the employees and workers of the Ashok Paper Mill Ltd with certain financial benefits.

The matter has already been considerably delayed. No further delay in the matter is called for. Let there be finality to the matter and the respondents must not go on taking adjournments with some lame excuses and highlighting the minutes of the meetings held in between with various departments/authorities. What the Court wants is, to know whether the respondents are really interested to revive the Ashok Paper Mill in terms of the Assam Accord or not. They must be specific in their reply as to whether the Assam Accord has failed so far as the same relates to the revival of the Ashok Paper Mill Ltd.

At the stage, Mr. B. D. Das, learned senior counsel representing the Ashok Paper Mill Ltd submits that the required decision will have to be taken at the political level.

Accordingly, it is hereby provided that the respective Ministries in the Union and the State Government shall take appropriate decision in the matter.

They will bear in mind that by delaying the matter, huge expenditures are being incurred which include the arrear salary and other service benefits to the employees and workers of the Ashok Paper Mill Ltd.

List the matter on 27.11.2014.

In the meantime, the respondents shall deal with the pleas of the employees and workers as highlighted in the aforesaid Misc Case. 14

Let copies of this order be furnished to the learned counsels for the parties. ”

3. Today Mr. D. Saikia, learned Additional Advocate General, Assam has produced the copy of the affidavit dated 27.11.2014 filed by the Joint Secretary to the Government of Assam in the Industries and Commerce Department. As stated in the affidavit, he is duly authorised to file the affidavit by the Chief Secretary, Government of Assam. In reference to the aforesaid order dated 04.09.2014, in paragraph 2 of the affidavit, the quarries made vide order dated 04.09.2014 have been referred to. Answering the said quarries, it has been stated that it is not technically and economically viable to revive Ashok Paper Mill Ltd in the current situation. Highlighting the same, paragraph-3 of the affidavit states thus:-

“That in view of the order dated 04.09.2014 passed by the Honble High Court in the instant writ petition WP(C) No. 3667/2008, this additional affidavit is being filed by this deponent, most respectfully furnishing the followings information before this Honble Court for just and proper adjudication of the case:

(i) As regards possibility of revival of Ashok Paper Mill (Assam) Limited in terms of Assam Accord, Government of Assam wrote a D. O Letter, vide No.No.Ci.231 /2008/PtII/161 , dated 09.10.2014, to the Secretary, Government of India, Ministry of Heavy Industry requesting Government of India to revive Ashok Paper Mill (Assam) Ltd. urgently in terms of the Assam Accord.

A copy of the D.O Letter No.Ci.231/2008/ptII/1 61 dated 09.10.2014 is annexed herewith and marked as Annexure- A.

(ii) That a meeting was held on 20. 10. 2014 at New Delhi under the Chairmanship of Joint Secretary (NE) to review the implementation status of Assam Accord wherein status of revival of Ashok Paper Mill (Assam) Ltd at agenda No. 3 was also reviewed. The Chairman- cum- Managing Director, Hindustan Paper Corporation Limited (HPC) informed in the meeting that consultant engaged by Ministry of Heavy Industry/HPC opined that viability of revival of Ashok Paper Mill (Assam) Ltd is not feasible in view of non availability of raw material (Bamboo) in Assam and neighbouring NE States. As an option, the consultant suggested that jute and coconut based industries might be developed in place of Ashok Paper Mill (Assam) Ltd. It was suggested that Secretary, Ministry of Heavy Industry might convene a meeting with the Chief Secretary, Assam and Chairman- cum- Managing Director, Hindustan Paper Corporation Limited (HPC) to discuss issues relating to revival of Ashok Paper Mill (Assam) Ltd and also second option suggested by the consultant.

A copy of the minutes of the meeting dated 20.10.2014 is annexed herewith and marked as Annexure- B.

(iii) That a meeting was held on 15.11.2014 at New Delhi under the Chairmanship of Secretary, Government of India, Ministry of Heavy Industry in presence of officials of Government of India and Government of Assam including Chairman- cum- Managing Director, Hindustan Paper Corporation Limited (HPC), representatives of Ministry of Home Affairs (MHA), Department of Industrial Policy and Promotion (DIPP), Micro, Small and Medium Enterprises (MSME) and consultant M/s Development Consultant Private Limited (DCPL). The representatives of the Government of Assam viz, Additional Chief Secretary, Industries and Commerce, Managing Director, Ashok Paper Mills and Additional Advocate General, Assam submitted that the matter needs to be examined from its historical perspective and greater public interest. It was emphasized that in view of the sensitivities involved and history of the matter, it is necessary to implement Assam Accord in true spirit for which the Central Government has to render all possible assistance to revive Ashok Paper Mill (Assam) Ltd. Further, Government of Assam has taken necessary steps regarding the payment of outstanding dues to the employees relating to the period when the mill was under the control of Government of Assam. As regards the issue of One Time Settlement of existing employees, the matter has been under consideration of the State Government, which would require a substantial financial package, for which assistance would be required from Government of India. To this the representatives of Ministry of Home Affairs mentioned that the Ministry could examine this within the ambit of Assam Accord.

 Based on the discussions held in the meeting, the following decision points emerged: -

(i) Based on the factual analysis and experts inputs, the location of a paper mill in this area would not be techno- economically viable.

(ii) The efforts so far made with regard to the revival of Ashok Paper Mill including the two unsuccessful attempts with M/s Sanghi textiles and M/s NEPIL respectively, as well as the efforts made by HPC through the consultant may be duly apprised to the Honble High Court.

(iii) As regards the one time settlement of the existing employees of Ashok Paper Mill, MHA would consider the case within the ambit of Assam Accord.

(iv) The feasibility of developing viable alternative industries at the site of Ashok Paper Mill utilizing other locally available raw materials, such as coconut or jute would be explored, in consultation with the Ministries concerned.

A copy of the minutes of the meeting dated 15.11.2014 is annexed herewith and marked as Annexure- C. In view of above, it is most respectfully and humbly stated that inspite of the best of efforts and intension of the State Government with assistance of the Government of India, it is not technically and economically viable to revive Ashok Paper Mill in the current situation. ”

4. As regards the payment of salary etc to the employees and workers of the Mill and also possibility of One Time Settlement towards dispensation of the services of the employees and workers of the Mill, it has been stated thus:-

“That as regards proposal of State Government to do with the employees and workers of the Ashok Paper Mill Ltd, who are still in the employment rolls and payment of outstanding dues, State Government vide letter No.CI.231/2008/pt. III/179, dated 31.10.2014 has already approved the release of an amount of Rs. 78,00, 000/- (Rupees Seventy Eight Lakhs) for payment of outstanding arrear salary of 7(Seven) months and 15(fifteen) days (16.12.1999 to 01.08.2000) in addition to the 6(six) months salary of the employees paid last year.

 The Ashok Paper Mill Ltd authority in pursuance of the order of the Government vide No.CI.231/2008/pt.III/179, dated 31.10.2014 has already released/disbursed the due amount to the 1 52 Nos of existing employees amount Rs. 24,68,550. 00 and 88 Nos of retired employees having Bank Account amounting Rs. 15,18,966. 00 by crediting the due amount in their respective Bank Accounts towards arrear salary of 7(seven) months and 15 days. PF contributions (Employer and employees share) are being deposited. As regards release of arrear salary of deceased/retired employees having no Bank Account, Newspaper advertisement were made and payments are being made to the legal heir/claimant on receipt of claims.

A copy of the letter No.CI.231/2008/Pt.III/179, dated 31.10.2014 and Copies of amount released by APM authority on 07.11.2014 and 21.11.2014 are annexed herewith and marked as Annexure- D and Annexure- E series respectively.

That as regards adoption of policy decision as the measure of One Time Settlement towards dispensation of the services of the employees and workers of the Ashok Paper Mill Ltd with certain financial benefits, State Government is considering the proposal of One Time Settlement for a Golden Handshake to the remaining employees of Ashok Paper Mill (Assam) Limited. The matter is under consultation with Public Enterprises and Finance Departments. Government of India also decided to consider the case within the ambit of Assam Accord in its meeting held on 15.11.2014. ”

5. While Mr. HRA Choudhury, learned senior counsel representing the petitioner has submitted that since the Ashok Paper Mill (Assam) Ltd has not been formally closed and the employees and workers are still in its employment, it is the responsibility of the State Government to pay them their admissible salaries along with other benefits.

6. Mr. D. Saikia, learned AAG, Assam on the other hand submits that once it is decided that the Ashok Paper Mill (Assam) Limited is not revivable in the present situation, an appropriate decision will also have to be taken regarding the entitlement of the employees and workers, which could be in the form of One Time Settlement. In this connection, he has regard to the stand of the Government of Assam reflected in Paragraphs 3, 4 and 5 of the affidavit quoted above.

7. Mr. B.D. Das, learned senior counsel representing the Ashok Paper Mill (Assam) Limited submits that since the revival or otherwise of the Mill is dependent on the resources to be provided by the Government, it cannot of its own revive the Mill.

8. Mr. SC Keyal, learned Assistant SGI, submits that since the affidavit referred to above filed by the Government of Assam is in reference to various consultations etc with the Central Government, he cannot make any submission beyond the said developments.

9. Mr. J. Roy, learned standing Counsel, HPC also submits in the same line.

10. Mr. P.K. Roy, learned counsel appearing for the Provident Fund Commissioner (respondent No.6) submits that he has got nothing to say in respect of the aforesaid developments.

11. From the above, what has emerged is that as per the decision of the Government, there is no possibility of revival of the Ashok Paper Mill (Assam) Limited. However, since in the Assam Accord of 1985, there is specific mention of revival of Ashok Paper Mills, to that extent the Assam Accord perhaps has failed. If that be so, it will be open for the parties to the Assam Accord or anyone entitled in law to raise such grievance in respect of the same as may be available in law and if they are so advised.

12. Although in the affidavit, failure of revival of the Ashok Paper Mill (Assam) Limited is reflected, but there is also reflection of possibility of developing a viable alternative in the form of jute an coconut based industries in place of Ashok Paper Mill (Assam) Limited. This option is under consideration of the various authorities including the Central Government.

13. Irrespective of the purported failure to revive the Ashok Paper Mill as indicated in the affidavit and the liberty to raise a grievance against the same, it will be appropriate for the respondents including the Central Government to establish the industry referred to in the affidavit in the form of Jute and Coconut industry, which shall be with utmost expedition and sincerity.

14. As regards the salaries and other admissible dues to the petitioner, it will be open for the respondents to go for One Time Settlement to bring an end to the stalemate that has been created in the process of revival of the Ashok Paper Mill (Assam) Limited, which has now said to have resulted in failure. This aspect of the matter shall also be considered, so that the employees and workers of the Ashok Paper Mill are no longer required to suffer and they know their fate as employees and workers of the Ashok Paper Mill (Assam) Limited.

15. Let the required exercise be carried out as expeditiously as possible, preferably within six months.

16. With the above directions, the writ petition stands disposed of.