Full Judgment Text
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PETITIONER:
EX-EMPLOYEES’ASSN
Vs.
RESPONDENT:
BHARAT PETROLEUM CORPN. LTD.
DATE OF JUDGMENT15/12/1994
BENCH:
K. RAMASWAMY AND N. VENKATACHALA, JJ.
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. Leave granted.
2. This appeal by special leave arises from the judgment
of the Division Bench of the Bombay High Court in Appeal No.
681 of 1990 dated 12-9-1991. The appellants filed Writ
Petition No. 3571 of 1989 seeking that the former employees
of the respondent-Corporation who retired prior to 1-1-1989
(clerical cadre) employed in the Bombay region are entitled
to the parity in payment of pension with the employees who
retired on that date in other regions of the respondent-
Corporation and the non-payment thereof is violative of
Articles 14 and 21 of the Constitution. To understand the
contention, it is necessary to mention the background of the
case.
3. Consequent upon the nationalisation of the erstwhile
Burmah-Shell on 24-1-1976, the Burmah-Shell Pension Fund
operating prior to the nationalisation was taken over and a
new trust fund was created with terms and conditions
mentioned therein found beneficial to the employees even
after the nationalisation. According to the terms, the
pension is payable on the basic salary and not on basic
salary plus DA. In 1978, disputes were raised by the
employees’ union including the dispute relating to the
increase of the pension by merging DA with basic salary
which had been referred to the Industrial Tribunal. In its
award dated 24-10-1983, the Industrial Tribunal rejected
demand 3 i.e. claim to increase the pension with merger of
DA in the basic salary and computation of the pension on
that basis. In respect of this rejected demand, the
employees filed WP No. 1568 of 1985 and in respect of other
demands allowed by the Tribunal, the respondent employer
filed WP No. 757 of 1984. Therein a compromise had been
reached by and between the parties and the relevant part
reads thus:
"(d) The old clerical employees who have
retired from the Corporation prior to 1-1-1989
will be paid as one time lump sum compensation
in lieu of awarded amount of HRA, gratuity and
duty allowance (so far as divisional offices
are concerned) amounting to Rs 50,000 within
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four weeks from that date."
Clause (4) is relevant for this purpose. It would
articulate that "award in respect of items and demands other
than those items settled above will operate".
4. The Industrial Tribunal has stated in respect of the
demand for increasing the pension at para 11 thus:
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"The present demand of the Union is that the
existing pension scheme should be modified and
revised so to include:
(a) pension amount should be calculated on
the wages/salaries inclusive of Dearness
Allowance and other non-personal allowances.
(b) it should be assessed on the basis of
50% of wages/salaries last drawn by the
workman without any deduction."
5. Considering this aspect of the matter, the Tribunal had
held that the demand for the revision and modification of
the pension scheme, if granted, would impose an unreasonable
financial burden on the company without any justification.
It was, therefore, held that "no question arises for
revising calculation of pension or checking the basis of
calculating pension from basic wages to total wages. The
demand is, therefore, rejected." In view of the terms of
consent referred to hereinbefore, this finding on demand 3
for increasing the pension stood concluded and binds the
appellants.
6. Subsequently, another attempt had been made by filing
WP No. 2907 of 1989 to reopen the consent order seeking a
declaration that the terms of consent dated 14-2-1989 in the
writ petition do not bind the appellant Association. That
writ petition was dismissed by the High Court on 19-2-1990
and that order was allowed to become final.
7. Yet another attempt was made by filing a writ petition
under Article 32 of the Constitution in this Court in WP No.
527 of 1989. This Court permitted the appellants by order
dated 27-10-1989 to withdraw the petition with liberty to
approach the appropriate forum. In consequence, the
appellants filed WP No. 3571 of 1989, which, as stated
earlier, was dismissed and the Division Bench concluded in
its order thus:
"It is now well settled that in relation to
persons drawn from different backgrounds and
who have functioned under differential
conditions of service, and who had their own
advantages and disadvantages under the
employment patterns in existence of different
industrial units, no absolute equality could
be predicated. It has been a mixed bag, that
by and large, had satisfied the requirements
of the employees and the conscience of
industrial jurisprudence. The establishment
in question had agile and agitating unions.
The terms and conditions had been subject-
matter of settlements and awards, and even
judicial orders. When the establishment has
punctiliously adhered to the requirements of
such settlements, claims and judicial
decisions, courts are not expected to break a
ripple in the otherwise translucent waters of
industrial relations."
8. It is sought to be contended for the appellants that
when the other employees similarly situated in the same
respondent-Corporation, are receiving pensionary benefits on
DA-merged basis, the denial thereof to the appellants is
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arbitrary, unjust and unfair offending the right to equality
and impinges on the livelihood of the retired employees
violating Articles 14 and 21 of the Constitution. We find
no substance in the contention. It is seen
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from the narrative that the appellants had specifically
raised the demand for increasing the pension on the basis of
DA merger with basic pay and demand that 50% of the total
wages should be the foundation for calculation of the
pension. In the industrial adjudication this demand was
expressly negatived and was allowed to become final. That
apart, it is seen that in the industrial adjudication the
other demands also had been raised and while granting the
benefits on other demands the parties - Management and the
workmen entered into a compromise in the High Court,
agreeing to pay to the employees retired prior to 1-1-1989
higher amount of Rs 50,000 and the working employees the
benefit of Rs 25,000.
9. Thus, it could be seen that having consented to the
adjudication made by the Tribunal and having allowed the
industrial award to become final, it is not open to the
appellants to go behind the award and claim pension on
parity with others on the anvil of Articles 14 and 21. That
apart the difference of payment of the pension had arisen on
account of the revision of the wages etc. only in the
industrial adjudication and demands by the union on behalf
of the workmen. The discrimination was due to the judicial
determination and not due to the acts of the respondents.
It is no longer, therefore, open to the workmen to contend
that they are entitled to parity in the payment of pension
with the employees in the other regions. The retired
employees in other regions are getting higher pension than
the retired employees of Bombay region but it is only due to
judicial adjudication.
10. Considered in the said perspective and in view of the
facts and circumstances, we are of the view that the High
Court was well justified in refusing to grant the relief
claimed by the appellant. The appeal is accordingly
dismissed. No costs.
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