Ex-Employees'assn Vs. Bharat Petroleum Corpn. Ltd. [1994] INSC 687 (15 December 1994)

K. RAMASWAMY AND N. VENKATACHALA, JJ.

ACT:

HEADNOTE:

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 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:

18 "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 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 19 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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