Ananta Kishore Rout and ors. and Susama Mohanty and ors. Vs. National Aluminium Company Ltd. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/535915
SubjectService
CourtOrissa High Court
Decided OnDec-21-2006
Judge B.P. Das And; A.K. Samantaray, JJ.
Reported in103(2007)CLT281
AppellantAnanta Kishore Rout and ors. and Susama Mohanty and ors.
RespondentNational Aluminium Company Ltd. and ors.
DispositionPetition allowed
Cases Referred(Duryodhan Swain and Ors. v. Fertiliser Corporation of India and Ors.
Excerpt:
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constitution - benefit - entitlement of -respondent is aluminum manufacturing company - respondent established two schools in it's township - respondent entered into agreement with an organization for management of schools - a set of rules were framed and was approved by respondent - said rules provided scales of pay of different categories of employees, modalities for recruitment of teachers and other staff - petitioners are teaching & non teaching staff of said schools but they are not entitled of benefits enjoyed by other employee of respondent - hence, present petition - held, from agreement, conduct of parties and from documents it is clear that respondent has ownership and control over management of schools and is also financed by respondent - organization has only taken up .....
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b.p. das, j.1. the teaching and non-teaching staff of two schools, namely, saraswati vidya mandir (in sort, s.v.m.) located at nalco nagar in angul district and at damanjodi in koraput district, have filed these two writ petitions under articles 226 and 227 of the constitution of india, with a prayer to direct the national aluminium company ltd. (in short, nalco) to treat them as the employees of nalco and to give them all consequential benefits as are extended to the employees of nalco. as the facts and points of law involved in both these writ petitions are same, they were heard analogously and are being disposed of by this common judgment.2. the brief facts, as delineated in the writ petitions, tend to reveal that the national aluminium company ltd. (nalco), which is a company.....
Judgment:

B.P. Das, J.

1. The Teaching and Non-Teaching Staff of two Schools, namely, Saraswati Vidya Mandir (in sort, S.V.M.) located at Nalco Nagar in Angul District and at Damanjodi in Koraput District, have filed these two Writ Petitions under Articles 226 and 227 of the Constitution of India, with a prayer to direct the National Aluminium Company Ltd. (in short, NALCO) to treat them as the employees of NALCO and to give them all consequential benefits as are extended to the employees of NALCO. As the facts and points of law involved in both these Writ Petitions are same, they were heard analogously and are being disposed of by this common Judgment.

2. The brief facts, as delineated in the Writ Petitions, tend to reveal that the National Aluminium Company Ltd. (NALCO), which is a company incorporated and registered under the Companies Act, 1956 and is a Government of India Enterprise having its Registered Office at Bhubaneswar, is engaged in manufacture and production of Alumina and Aluminium in its manufacturing units at Damanjodi in Koraput district and at Angul. In the year 1984, NALCO established two Schools in the townships set up by it for its employees working in its manufacturing units at NALCO Nagar, Angul and at Damanjodi, with a view to provide educational facility mainly to the children of its employees from Primary to +2 level. It also provided necessary infrastructure, such as land, building, furniture, library, laboratory equipments and other assets. The said Schools admittedly are unaided Private Schools. On 15.5.1985 NALCO entered into two separate but identical agreements for the aforesaid Schools with the Central Chinmoy Mission Trust, Bombay (in short, C.C.M.T.), whereunder the NALCO entrusted the management of the Schools on contract basis to C.C.M.T. and the Schools were called Chinmay Vidyalayas. Copy of one such agreements is Annexure-1 to W.P.(C) No. 15269/2001. According to the said agreements, NALCO agreed to pay an amount of Rs. 10,000/- per annum to C.C.M.T. as donation towards the supervision charges for each School. The C.C.M.T. managed the Schools from the year 1985 to 1990. On termination of the aforesaid agreements with C.C.M.T., NALCO requested another organisation, namely, Sikhya Vikas Samiti, Orissa, (in short, S.V.S.), which is affiliated to Vidya Bharati Akhila Bharatiya Sikhya Sansthan, to manage the said Schools and entered into an agreement with S.V.S. on 18th May 1990 for both the Schools, vide Annexure-1 to O.J.C.No.11761/2001 and Annexure-2 to O.J.C. No. 15269 12001. In terms of the said agreement dated 18.5.1990, the S.V.S. is now managing the Schools, which have been re-named as Saraswati Vidya Mandir ('SVM', in short) and NALCO was initially paying Rs. 2,000/- per month to the S.V.S. towards its supervision charges, which has been subsequently enhanced to Rs. 50,000/- per annum. The Schools are at present running in the campus of NALCO and a number of Teaching and Non-Teaching Staff have been engaged. Since the Teaching and Non-Teaching Staff working in the aforesaid Schools had no service conditions, there was discontentment among the employees.

Therefore, it was thought proper to frame rules regulating conditions of service for such employees. Further, a joint meeting was convened, which was presided over by the Chairman-cum-Managing Director of NALCO, O.P.1, wherein certain modalities were worked out to frame rules regarding recruitment and conditions of services of the employees of the Schools and a committee for the purpose was constituted comprising of the authorities of both the Schools at Angul and Damanjodi, i.e., the Manager (Personnel) of NALCO Corporate Office and the Secretary of SVS. A set of draft Rules have been framed under the name and style 'Saraswati Vidyamandir Employees' Recruitment and Conditions of Service Rules, 1995 (Rules hereinafter). The Rules so framed have been approved by the Corporate Office of NALCO, the fact of which, would appear from the communication dated 26.7.1996 of the General Manager (Admn. & C.C.) of the Corporate Office addressed to the Managing Committee of the School, vide Annexure-3/4 to O.J.C. Nos. 11761/15269 of 2001.

The said Rules provide the scales of pay of different categories of employees, the modalities for recruitment of Principal, teachers and other Non-Teaching Staff and determination of seniority of the employees besides fixing the age of superannuation. According to the Petitioners, as per Rule-5 of the Rules, a Selection Committee has been constituted comprising of the President of the Managing Committee of each School, its Secretary, two representatives of S.V.S. and one representative of NALCO Corporate Office. According to the Petitioners, though the appointments are made by the Managing Committees of the Schools, in reality the entire selection process of appointment is controlled by NALCO and it has the final say in the matter. Appointments to various posts are being made on the recommendation of the Selection Committee of which the authorities of NALCO are the members. Since inception of the Schools, an Officer in the rank of General Manager of NALCO has been functioning as President of the Managing Committee, an Officer in the rank of Chief Manager/D. G. M. (Personal Admn.) as a member, and the D.G.M. (Finance) as the Member, Finance, thereby NALCO has full control over the management of the Schools. Apart from the above, the Teaching and Non-Teaching Staff of the Schools are allotted with residential quarters by the NALCO authorities and orders for such allotment are passed by the NALCO authorities. The sum and substance of the case of the Petitioners is that NALCO is playing a decisive role in the matter of appointment of employees in the Schools and management of the said Schools and also bears the financial liability of the Schools, which appear from the budget estimate for the Schools for the year 1999-2000, which was approved by the Board of Directors of NALCO. The entire expenses incurred for running the Schools are borne by NALCO and no transaction of the Schools can be made without the approval of the D.G.M. (Finance), NALCO, which would include the expenditures with regard to the salary component, provident fund, medical reimbursement, leave travel concession, festival advance, increments, etc. Added to the above, the Teaching and Non-Teaching Staff of the Schools also enjoy the facilities of Consumer Cooperative Society and NALCO Hospital like any other employees of NALCO. The Petitioners have, therefore, submitted that NALCO has a deep and pervasive control over the management of the Schools. The S.V.S. only runs the Schools and supervision charges of Rs. 50,000/- per month is paid to S.V.S. The Petitioners on the aforesaid premises, claim that they are, in fact, employed by NALCO but they are not treated as employees of NALCO. They have made several representations to NALCO authorities to treat them as its employees but no action has been taken by NALCO. These two Writ Petitions have been filed seeking the reliefs as indicated hereinabove.

3. The NALCO and its functionaries in their counter affidavits filed in both the Writ Petitions have taken a stand that in order to cater to the educational need of its employees, NALCO got an offer from the C.C.M.T. (Central Chinmaya Mission Trust), Bombay, to open educational institutions within the townships of NALCO at Angul and Damanjodi. Accordingly two separate agreements were entered into between the NALCO and C.C.M.T. on 15th May, 1985 with a view to establish such Schools within its townships at Angul as well as at Damanjodi. Those two Schools, one at Angul and the other at Damanjodi were called 'Chinmaya' Vidyalayas. NALCO has referred to various Clauses of the agreements dated 15.5.1985 including Clauses 10, 15 & 18, which are extracted hereunder:

10 That NALCO shall at its own cost, place at the exclusive disposal of Chinmaya Vidyalaya, one School building temporarily, to start the School till the final School building is constructed, along with necessary furniture and fixtures. The temporary School building will cater to the needs of about 100 children but the actual School building will be constructed on priority basis in phased manner ultimately to cater to the needs of about 1000 children.

15. That NALCO shall meet the revenue deficit of Chinmaya Vidyalaya, Angul on an actual basis. Since NALCO shall be meeting the capital expenditure and the revenue deficit, NALCO shall have the right to fix the tuition fees and other charges from time to time for children of NALCO employees and others.

18. That the Managing Committee may borrow fund or raise loans for the purpose of the School, only after getting the prior approval of CCMT, without any liability to NALCO.

After completion of five years of the aforesaid agreements, C.C.M.T. withdrew its services and NALCO was constrained to enter into a fresh agreement on 18.5.1990 with S.V.S. (Sikhya Vikas Samiti), Orissa, which is affiliated to Vidya Bharati Akhila Bharatiya Shikhya Sansthan, to run the Schools already established under the Management of Chinmaya Mission Trust (in short, C.M.T.) and the Schools are running under the S.V.S. till today. Certain important clauses of the agreement dated 18th May, 1990 referred to in both the counter affidavits are re-produced as follows:

3. That the executive authority of the said School shall vest in the Managing Committee to be constituted, separately one at Damanjodi and one at Angul, consisting of the following:

a) The respective unit heads of Damanjodi/Angul or its nominee shall be ex-officio President.

b) A nominee of the Finance Department of the respective units of NALCO.

c) A nominee of the Personnel Admn. Department of the respective units of NALCO.

d) A representative of the parents/guardians who shall be an employee of NALCO to be co-opted by the Managing Committee respectively for each School at the units.

e) Members to be nominated by the Samiti.

f) The Headmaster of the School.

g) A representative of the teachers.

h) A part-time representative of the Samiti who shall act as the ex-officio member-secretary of the Managing Committees.

Provided that the relevant provisions of the Orissa Education Act and Rules shall be kept in view while making aforesaid nominations.

9. That NALCO shall place at the exclusive disposal and use of Samiti Existing Chinmaya School premises along with the buildings and Capital Assets both at Damanjodi and Angul and it is clearly understood that the Samiti shall have no right to its use or possession for any other purpose. No interest in the land or the said buildings shall be transferred to the Samiti.

11. That all the immovable and movable properties provided by NALCO shall remain the property of NALCO and shall be returned to NALCO subject to normal wear and tear if the arrangements herein above are at any time terminated.

12. NALCO shall meet the revenue deficit of the said Schools on actual basis. Since NALCO shall be meeting the capital expenditure and revenue deficit, NALCO shall have the right to fix the different rates of tuition fees and other charges from time to time in respect of the children of NALCO employees and others.

16. That the School accounts shall be audited yearly by the auditors appointed by Management Committee.

According to NALCO, initially the recruitment and selection process were made by the C.M.T. so far as some Teaching and Non-Teaching Staff were concerned, and as regards the rest of the Staff of the Schools, selection and recruitment were done by the S.V.S. complete independently, with which NALCO had no role to play. The Petitioners, according to NALCO, are governed under a different set of service rules, which is distinctly different from the service conditions applicable to its own employees. NALCO has denied the averments of the Petitioners that it has established the Schools and, according to it, providing necessary infrastructure was for the reason of conditions in the agreement entered into between the parties from time to time. Chinmaya Vidyalayas undertaking to provide certain benefits to the employees of the Schools at par with the NALCO employees cannot confer any right on the employees of the Schools to claim to be the employees of NALCO.

The further case of NALCO is that the management of each School is vested in its Managing Committee, which altogether an independent body, and the C.M.T. was the initial employer of the Staff of the Schools. NALCO can never be treated as the employer after S.V.S. took over the Schools in the year 1990. The employees of the C.M.T. became the employees of S.V.S. and the Staff are governed by the service conditions framed by the S.V.S. NALCO relies upon certain documents annexed as Annexure-A/1 series, which are the correspondence indicating that the appointment, joining and transfer of the teachers are done directly under the C.M.T. and advertisements for appointment to different posts of Teaching and Non-Teaching Staff have been done by S.V.M. and Chinmaya Vidyalaya. It was further submitted by NALCO that there is no master and servant relationship between NALCO and the Petitioners. Such relationship, if any, had existed between the C.M.T. and the Petitioners from 1985 till 1990 and thereafter the same continues between the Petitioners and the S.V.S. It is further argued that the involvement of NALCO Officers in the recruitment matters as well as decision making process was by virtue of their becoming members in the committees managing the affairs of the Schools and not otherwise and the involvement of such Officers and the decisions taken by such members cannot be construed to be the decision of NALCO.

It is true that at times NALCO deputes its Officers to resolve any problem only on the request of the School, the Managing Committee or the S.V.S. There is absolutely no interference of NALCO in the management of the Schools as alleged. It is further stated in the counter affidavit that NALCO pays the supervision charges to S.V.M. but it is only by way of aiding the deficit finance in relation to the Schools. The extension of facilities of NALCO Medical, Consumer Cooperative Society to the employees of the Schools like the employees of NALCO is as a matter of good gesture, and providing medical reimbursement is not the obligation of NALCO. The employees of the Schools are recruited, promoted as well as penalized in the disciplinary matters independently by the Managing Committee in terms of their service rules and it has no connection with the NALCO Service Rules. With such averments, NALCO denies the contention of the Petitioners that it has deep and pervasive control over the affairs of the Schools.

4. During the course of hearing, our attention was drawn to the orderdated 12.4.2006 passed in O.J.C.11761/2001 which shows that Mr. B.N.Rath, Learned Counsel appearing for the S.V.M. (O.P.5), had submitted that S.V.M. had no counter affidavit to file and S.V.M. would rely on the counter affidavit filed by the NALCO. Order dated 20.4.2006 shows that Mr. Sarbeswar Behera, Learned Counsel, appeared for the S.V.S., O.P.4, but thereafter, Mr. Anup Kumar Bose, Learned Counsel appeared for S.V.S. and filed its counter affidavit in O.J.C.No.11761 /2001. In O..I C 15269/2001 the order dated 28.6.2006 shows that Mr. A.K. Bose, Learned Counsel appearing for S.V.S., submitted that it was the educational agency which runs the S.V.Ms, and the S.V.S. was not the educational agency in respect of the Schools in question but it was NALCO and the S.V.S., which were jointly the educational agencies. Mr. B.N. Rath, Learned Counsel appearing for the NALCO, refuting the said statement of Mr. Bose, submitted that it was the S.V.S., which runs the Schools and the said S.V.S. was the educational agency.

5. In view of the rival statements made on behalf of the NALCO and S.V.S. in the matter of running the Schools, this Court directed NALCO to file an affidavit through one of its responsible officers indicating whether NALCO or the S.V.S. was the educational agency in respect of the Schools in question. The Secretary of S.V.S. was also directed to file an affidavit indicating whether the S.V.S. was the educational agency of the Schools. Mr. J.N.Rath, Learned Counsel, who was appearing for the S.V.M., was also directed to file an affidavit of the Secretary of S.V.M. stating whether NALCO or the S.V.M. was the educational agency of the Schools.

6. Pursuant to the aforesaid order, the Secretary of S.V.S., namely, Ramesh Charan Tripathy, filed an affidavit indicating therein that on termination of the agreements entered into between the C.C.M.T. and NALCO, another agreement was executed on 18.5.1990 between the NALCO and S.V.S. NALCO had approached the S.V.S. to help for better management of the School, as would be evident on the face of the agreement dated 18.5.1990. In the agreement it was indicated that NALCO had established and developed one Oriya Medium School each at Damanjodi and Angul for the benefit and welfare of the employees of NALCO and the local inhabitants. For the purpose of running the Schools NALCO had provided the School premises along with the building and capital assets both at Damanjodi and Angul. Clause-10 of the agreement stipulated that NALCO would provide the requisite furniture, fittings, laboratory, library, game equipments and audio visual aids, etc., as may be necessary and the management of the School would be responsible and accountable to NALCO at any time. As per Clause-ll, all the moveable and immovable property of NALCO would remain the property of NALCO. Clause-12 provided that NALCO would meet the revenue deficit of the Schools on actual basis and it had the right to fix different rates of tuition fees and other charges from time to time in respect of the. children of the employees of NALCO and others. As per the agreement, NALCO had to pay an amount of Rs. 2000/- per month, which is at present enhanced to Rs. 50,000/- per year to the S.V.S. towards supervision charges and for providing all the privilege of training orientation programme, students training camps, sports and other extra-curricular activities to the students as well as teachers of the Schools. According to S.V.S., its main objective was to act as educational agency to spread education within weaker Sections of the society and it has been carrying on the activities as affiliated body relating to some other Schools in the State, but so far as the S.V.Ms. at Angul and Damanjodi are concerned, it is carrying on the limited activities as an educational agency such as providing 'Teaching aids' like conducting examination, providing the syllabus, undertaking the sports and extra-curricular activities, etc. According to them, for all practical purposes, NALCO is the 'founder educational agency', the S.V.S. only performs a limited role such as providing better educational aids by virtue of the agreement entered into with NALCO, which can be terminated by either party at any time. To be precise, according to Mr. A. K. Bose, Learned Counsel for the S.V.S., the S.V.S. has no liability so far as the salary and other benefits of the Teaching and Non-Teaching Staff are concerned and its role is limited, there is no relationship of master and servant between S.V.S. and the Petitioners.

7. An affidavit on behalf of the Managing Committee of S.V.M., O.P. 5, has been filed sworn to by one Bibhuti Bhusan Nanda, Secretary, S.V.M., NALCO Nagar, Angul, who is running the School, admitting-the fact that an agreement was entered into between NALCO and the S.V.S. on 18th May 1990. As per the agreement, the S.V.S. had agreed to take over the management and administration of the Schools and to arrange for proper academic and other developments to the students. Clause-17 of the agreement provided that the S.V.S. would provide all the privileges of training orientation programme, student training camp, sports and other extra-curricular and co-curricular activities of the students and teachers of the Schools. The stand taken by S.V.M. is similar to that of S.V.S. But at the same breathe, the affidavit of S.V.M. indicates that neither NALCO nor the Managing Committee of S.V.M., Damanjodi, is the educational agency and on the other hand, it is S.V.S., which is the educational agency.

An affidavit has been filed on behalf of the NALCO-O.P.1 in terms of the order of this Court dated 28.6.2006, wherein NALCO has inter alia taken a stand that the S.V.S. is the educational agency and the Teaching and Non-Teaching Staff of the School are the employees of the S.V.S.

8. A close examination of the averments made in the counter affidavits filed by NALCO, S.V.M: and S.V.S. would show that none of the aforesaid organisations has come forward to take the liability of the Teaching and Non-Teaching Staff of the Schools and that too, one Opposite Party has shifted its liability to the other. As it appears, NALCO says that S.V.S. is the educational agency, which is not admitted either by S.V.S. and S.V.M. stoutly denies that it is the educational agency. In these circumstances, we have to examine, whether the Schools belong to NALCO and the Teaching and Non-Teaching Staff of the said Schools are be treated as the employees of NALCO in view of the stand taken by the O.Ps. in their respective counter affidavits disowning their responsibilities towards the benefits of the teachers' of the Schools and as the Schools run with an agreement entered into between the O.Ps., i.e., NALCO and S.V.S., which can be terminated by either parties. Certainly all these Opposite Parties cannot be absolved of their liabilities of payment of the emoluments to the Staff of the Schools as well as other benefits they are getting, in the event the agreement is terminated. The Petitioners cannot be left in high and dry. Initially the S.V.S. in its counter affidavit filed on 24th April 2005 took a definite stand that it was still having its necessary control and supervision not only by virtue of the agreement entered into between it and NALCO, which is in force but by virtue of its status as an educational agency, and there was no dispute with the teachers and the Staff or the Managing Committees and the teachers were to be treated as employees of S.V.S. But subsequently, in the affidavit filed by S.V.S. as per the direction of this Court dated 28.6.2006, S.V.S. retracted from the stand taken in the earlier affidavit and denied that the Petitioners are its employees.

9. Now Mr. R. K. Rath, Learned Counsel for the NALCO, in O.J.C. No. 11761/2001 raised the question of maintainability of the Writ Petition saying that the Petitioners have no cause of action. In view of the facts narrated above, it cannot be said that the Petitioners have no cause of action. The Petitioners had been employed since long and now, as the counter affidavits show, they are being disowned by NALCO, S.V.S. and S.V.M. Each one is shifting its responsibility to the other, which shows that the Petitioners are aggrieved persons having a legal grievance. So the grievance of the Petitioners cannot be brushed aside as they have a cause of action because there is every threat of loss of their jobs and in the event their employment runs the risk of uncertainty.

10. Another question was raised by Mr. R.K. Rath, Learned Counsel for the NALCO in O.J.C. No. 11761/2001, that the Writ Petition is pre-mature and as an agreement is subsisting between the S.V.S. and the NALCO, unless and until that agreement is set aside, the Writ Petition cannot be maintained by the Petitioners. This plea of NALCO does not hold good, as we have already stated, and from the counter affidavits it is crystal clear, that the jobs of the Petitioners are at stake, because none of the Opposite Parties is coming forward to accept the Petitioners to be its own employees. So far as agreement is concerned, Mr. Rath, Learned Counsel for NALCO, drew our attention to a decision in A.K. Bindal and Anr. v. Union of India and Ors. : (2003)IILLJ1078SC , wherein the question before the Apex Court was:

Whether the employees of Public Sector Enterprises have any legal right to claim that though the industrial undertakings or the companies in which they are working did not have the financial capacity to grant revision in pay scale, yet the Government should give financial support to meet the additional expenditure incurred in that regard.

The Apex Court held as follows:

The Government company is not identified with the Union but has been placed under a special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 & 620 of the Companies Act. Merely because the entire share holding is owned by the Central Government will not make the incorporated company as Central Government.

The aforesaid decision will no way help NALCO nor will it be applicable to the facts and circumstances of the present case.

11. Mr. Rath further drew our attention to a decision in Haladia Refinery Canteen Employees Union and Ors. v. Indian Oil Corporation Ltd. and Ors. reported in : (2005)IILLJ684SC . The facts of this case related to the canteen employees seeking regularization of their services in the management of Indian Oil Corporation. As it appears from the facts of the said case, the wages paid to the canteen employees were not reimbursed to contractor by the management and only the supervisory control was exercised by the management. The contractor was made liable to pay Provident Fund contribution, leave salary, medical benefits and to observe statutory working hours. This decision is also not applicable to the facts of the present case, because of the following recitals in the initial agreement entered into between the NALCO and C.C.M.T. on 15th May 1985.

WHEREAS NALCO, with a view to establish a School within its township at Damanjodi, Koraput, Orissa maintaining the quality and standard in education as obtaining in Chinmoy Vidyalayas, approached CCMT to start and run such a School on the same lines as their Schools known as 'CHINMAYA VIDYALAYAS' allover the country.

Clauses-15, 20, 21 & 22 of the said agreement also provided thus:

15.That NALCO shall meet the revenue deficit of Chinmoy Vidyalaya, Damanjodi on an actual basis. Since NALCO shall be meeting the capital expenditure and the revenue deficit, NALCO shall have the right to fix the tuition fees and other charges from time to time for children of NALCO employees and others.

20. That on the termination of this agreement the School shall be closed down and NALCO shall not use the name of the School as Chinmaya Vidyalaya in case it decides to run another School.

21. That on the termination of this agreement the Chinmaya Vidyalaya, Damanjodi shall hand over to NALCO all the movable and immovable properties referred to in Clauses 10,11,12 & 17 subject to normal wear and tear. All the movable properties that Chinmaya Vidyalaya might have purchased out of its own funds may be removed by CCMT.

22. That as the owner, under Copy rights Act, 1957, of the copy right over the name and logo known as 'Chinmaya Vidyalaya', the party on the second part shall, without let or hindrance, allow the above name and logo to be used by the Chinmaya Vidyalaya, Damanjodi. In compensation therefor, the party in the first part shall pay through the Chinmaya Vidyalaya, Damanjodi, a donation to the Corpus of the second party, of Rs. 10,000/- (ten thousand only) per annum for the first five years from the date of starting of the Vidyalaya and thereafter, the said amount will be subject to an escalation of 10% on an annual basis.

The aforesaid Clauses of the initial agreement dated 15th May 1985 in clear and unambiguous terms show the intention of NALCO to open the Schools and pursuant to that it had entered into agreement with C.C.M.T. to run the School using their name and logo 'Chinmaya Vidyalaya' and in compensation for use of the said logo and as the owner, as per Clause-22, the C.C.M.T. being the copyright holder of Chinmaya Vidyalaya shall take donation from NALCO to the tune of Rs. 10,000/- on annual basis. On termination of the agreement as per Clause-20, NALCO shall not use the name of the School as Chinmaya Vidyalaya in case it decides to run another School. On termination of the said agreement, the Chinmaya Vidyalaya shall hand over all the movable and immovable properties to NALCO. In the note sheet dated 14th March 1989 (Annexure-20 to O.J.C. No. 1761/2001), it was indicated that the NALCO had appointed the auditors to audit the accounts of the Schools. Subsequently, Chinmaya Vidyalaya left the field and S.V.S. stepped in by virtue of an agreement entered with the NALCO and is managing the Schools in the name and style of S.V.M. (Saraswati Vidya Mandir) till date. There is no denial to the fact that the total expenditure of the Schools, like salary, E.P.F. of the employees, medical facility, L.T.C., quarters facilities, etc. like that of the employees of the NALCO enjoyed by the Petitioners, is borne by NALCO, for which a budgetary provision is made by the NALCO authorities every year over and above paying a sum of Rs. 50,000/- per annum to S.V.S. for management and supervision of each School. Annexure-2 to O.J.C. No. 11761/2001 is the Office Order dated 4th May 1992 of the Inspector of Schools, Dhenkanal Circle, Dhenkanal approving the Staff of the School, which indicates that the General Manager (Admn.), Chief Engineer (P) of NALCO are the members of the committee besides one educationist, one member from outside, the Principal and a Teachers representative as members, and only two members of the committee are from S.V.S.

12. Annexure-5 series, letters of NALCO, show that the NALCO has provided residential quarters to the Teaching and non Teaching Staff of the School in NALCO township at par with the employees of NALCO. In Annexure-10, letter dated 1st September 1997 of the Chief Manager (Finance) & Member Finance, S.V.M., Angul addressed to the Principal, S.V.M., it was stated that representations were received from six teachers of the said School regarding anomaly in pay fixation and the Teachers were placed in the next higher scale basing on the decision taken in the last DPC meeting. As the teachers were not satisfied with the pay fixation procedure and had given representations, they were allowed to draw salary in the existing scale till such time their representations were discussed and finalized.

Annexure-ll is a letter dated 30th March 1993 addressed to the Secretary, S.V.M., Angul, in which the Dy. General Manager (P & A) of NALCO had recommended to regularise the services of one Adwait Kumar Pradhan if his job was found satisfactory as his appointment was approved by the Executive Director (S & P) earlier. He further directed to issue his appointment letter from the School. Annexures-12 & 13 show the capital budget for the years, 1999-2000, 2000-2001 and 2001-2002, which included the expenses of the School so also finance for the management of the School. Annexure-14 is the letter dated 28.5.2001, in which the Principal of the School requested the D.G.M. (Finance), NALCO to provide a sum of Rs. 2,76,799/- towards deposit of P.F. for the month of May, 2001 for the employees and the aforesaid amount was sanctioned. Annexure-17 is the Notification dated 18.11.1999 of the NALCO saying that the NALCO management had agreed to provide cyclone advance to the employees of the School.

13. It is stated that expenses for kidney transplantation of one Binodini Acharya, teacher of the School amounting to Rs. 1.00 lakh was borne by the NALCO authorities like that of its other employees.

14. A bare look at the basic document, i.e., agreement dated 15th May 1985 entered into between the NALCO and C.C.M.T., Clause-20 of it, as indicated above, would show that on termination of the agreement, only the name of the Chinmaya Vidyalaya cannot be used by NALCO and subsequently, the place of C.C.M.T. has been taken over by S.V.S. From the voluminous documents as referred to above, there can be no second opinion in regard to the fact that the Schools were established by the NALCO, funded by NALCO authorities and it has deep and pervasive control over the Schools. It is the NALCO, which pays the salary, Provident Fund, and makes the medical reimbursement, the S.V.S., as stated in its affidavit, only looked to the discipline, curriculum and management of the Schools. In this regard, we may refer to a decision rendered by this Court in O.J.C. No. 458/1985 (Duryodhan Swain and Ors. v. Fertiliser Corporation of India and Ors.) on 22.11.1990, wherein a similar question arose. Twenty-one Petitioners serving in the Fertilizer Higher Secondary School in different capacities had filed the said Writ Petition. The said School was imparting Teaching in +2 Course and on account of the welfare need of its employees, the School was given grant and was converted into a Higher Secondary School. Even though a managing committee was constituted for the said School, representatives of trade unions and of guardians and parents as well as the officials of the Corporation were also included. The financial control of the School rested in a large measure with the Corporation and it was fully financed by the Corporation. In those prevailing facts and circumstances, this Court held that the Corporation had deep and pervasive control over the working of the School and ultimately, directed the Corporation to accept the Petitioners to be its employees.

15. Now in the instant case, at the cost of repetition, we may say that the agreement dated 18.5.1990 entered into between the NALCO and the S.V.S. (Annexure-I) and the agreement dated 15.5.1985 entered into between the NALCO and C.C.M.T. (Annexure 19), as indicated above, would amply prove the control of NALCO over the Schools in finance, payment, discipline and administration. This fact is further corroborated and strengthened by the submission of the Learned Counsel for the S.V.S. that it only carries on the activities of providing better educational aid and that it is not an educational agency. It is a peculiar case, where there is no denial that all the employees are getting much higher scale of pay than that of the employees of the aided and unaided Schools under the State and their pay structure is totally different and even much better than the employees of all the Government educational institutions functioning in the State. It has become possible only due to the reason that the entire finance is being paid by NALCO and if NALCO withdraws itself from the Schools, neither S.V.S. nor S.V.M. would be able to meet the expenses of the Schools.

16. The agreement dated 15.5.1985 as well as the conduct of the parties and the transactions that are carried on from 1985 till today, would indicate that NALCO has deep and pervasive control over the management of the Schools and it is NALCO, which is the educational agency in establishing the Schools. The arguments advanced by Mr. R. K. Rath, Learned Counsel for NALCO, and Mr. B.N.Rath, Learned Counsel appearing for S.V.S. in both the Writ Petitions do not detract from the position that the Schools are being managed and financed by the NALCO and from the documents, it is crystal clear that the ownership and overall management of the Schools are retained by the NALCO while C.C.M.T. and S.V.M. or S.V.S., as the case may be, have taken up the responsibility of running the Schools at different point of time because they have expertise and experience in the field of Teaching.

17. Therefore, we are satisfied that the Petitioners have established their case that the Schools belong to NALCO for which we accept the case of the Petitioners and observe that the Petitioners in both the Writ Petitions have to be accepted -as employees of the NALCO. We, therefore, direct the Opposite Parties to make available to the Petitioners the benefits, which are being enjoyed by other employees of the NALCO. The Writ Petitions are allowed accordingly. In the facts and circumstances of the case, we, however, make no order as to costs.

A.K. Samantaray, J.

18. I agree.