BHARAT PETROLEUM CORPORATION EX-EMPLOYEES ASSOCIATION AND ORS.versusBHARAT PETROLEUM CORPORATION LTD. AND ORS.

      BHARAT PETROLEUM CORPORATION EX-EMPLOYEES                            A
                 ASSOCIATION AND ORS.
                                    v.
      BHARAT PETROLEUM CORPORATION LTD. AND ORS.

                         DECEMBER 15, 1994
                                                                           B
         [K. RAMASWAMY ANDN. VENKETACHALA, JJ.]

    Constitution ofIndia, 1950: Articles 14 and 21

     Pension-Corporation-Employees-Disparity in pension-Claim for
increased pension after merger of DA with basic pay-Rejection by Indus- C
trial Tribunal-Compromise between parties-Under compromise terms
employees retiring prior to 1.1.89 were entitled to higher compensation
than those retiring afterwards-Matter attaining finality between parties-
Held disparity in pension payable to employees of same Corporation
retiring in different regions was on account of Industrial adjudication- D
Articles 14 and 21 held not violative.

     The appellant-Association raised certain disputes including the
dispute relating to increase of pension by merging DA with basic
salary. The Industrial Tribunal allowed other demands but rejected the
pension claim. The appellant-Association as well as the respondent-        E
Corporation filed writ Petitions in the High Court but a compromise
was reached between the parties where under the finding of the
Tribunal rejecting the claim for the increase in pension was allowed to
become final and binding between the parties. Subsequently, the
appellant'-Association made an unsuccessful attempt to re-open the         p
consent order by seeking a declaration from the High Court that the
terms of the consent do not bind the appellant-Association. Thereafter,
the appellant-Association filed another petition in this Court which was
permitted to be withdrawn with liberty to approach the appropriate
forum. Accordingly, a writ Petition was filed in the High Court
claiming that the former employees of the respondent-Corporation who       G
retired prior to 1.1.1989 (clerical cadre) employed in the Bombay
region were entitled to the parity in payment of pension with the
employees who retired on that date in other regions of the Corporation
and the non-payment thereof was violative of Articles 14 and 21 of the
Constitution.                                                              H
                                 637
    638                    SUPREME COURT REPORTS             [1994] SUPP. 6 S.C.R

A        The High Court dismissed the petition against which an appeal was
    -preferred in this Court

          Dismissing the appeal, this Court

         HELD: Having consented to the adjudication made by the
B   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
c   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 from Bombay
    region but it is only due to judicial adjudication. Considered in the said
D   perspective and in view of the facts and circumstances, the High Court
    was well justified in refusing to grant relief claimed by the appellant.
                                                                   [641 D to F]

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9648 of
    1994.
E
       From the Judgment and Order dated 24.6.92 of the Bombay High
    Court in W.P.No.3571of1989.

       P.S. Poti, E.M.S. Anam, Sanjay Kunur and R.N. Keshwani for the
    Appellants.
F        V.C. Mahaian and Santosh Hegde, Ms. A. Subhashini, Ms. Sushma
    Suri, Ms. Kitty Kumaramanglam, Anil Katiyar, Wasim Qadri, Parijat Sinha,
    B.D. Ahmed and M.K.D. Namboodiri for the Respondents.

          The following Order of the Court was delivered :

G         Leave Granted.

        This appeal by special leave arises from the judgment of the Division
    Bench of the Bombay High Court in Appeal No.681/90, dated 12.9.91. The
    appellants filed writ petition No. 3571/89 seeking that the former
    employees of the respondent-Corporation who retired prior to 1.1.89
H   (Clerical cadre employed in the Bombay region are entitled to the parity in
BHARAT PETROLEUM CORPN. v. BHARAT PETROLEUM CORPN. LTD. 639

payment of pension with the employees who retired on that date in other A
regions of the respondent-Corporation and the non-payment thereof is
violative of Article 14 and 21 of the Constitution. To understand the
contention, it is necessary to mention the background of the case.

     Consequent upon the nationalization of the erstwhile Burmah-shell on
January 24, 1976, the Bunnah-shell pension fund operating prior to the B
nationalization was taken over and a new trust fund was created with terms
and conditions mentioned therein found beneficial to the employees even
after the nationalization. According to the terms, the pension is payable on
the basic salary and not on basic salary plus D.A. In 1978, disputes were
raised by the employees' union including the dispute relating to the increase
of the pension by merg~g D.A. with basic salary which had been referred C
to the Industrial Tribunal. In its Award dated 24. l 0.83, the Industrial
Tribunal rejected the demand No.3 i.e. claim to increase the pension with
merger of D.A. in the basic salary and computation of the pension on that
basis. In respect of this rejected demand, the employees filed W.P. No.
1568/85 and in respect of other demands allowed by the Tribunal, the D
respondent-employer filed W.P. No. 757/84. 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 1.1.89 will be paid as one time lump-
              sum compensation in lieu of awarded amount of H.R.A., E
              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 F
operate".

     The Industrial Tribunal has stated in respect of the demand for
increasing the pension at para 11 thus:-

              "The present demand of the Union is that the existing        G
              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.                                                  H
    640                   SUPREME COURT REPORTS               [1994] SUPP. 6 S.C.R

A            (b)   it should be assessed on the basis of 50% of wages/salaries
                   last drawn by the workman without any deduction."

         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
B   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 herein before, this finding on demand No. 3
    for increasing the pension stood concluded and binds the appellants.

C        Subsequently, another attempt had been made by filing W.P. No.
    2907 /89 to reopen the consent order seeking a declaration that the terms of
    consent dated 14.2.89 in the writ petition do not bind the appellants-
    Association. That writ petition was dismissed by the High Court on 19.2.90
    and that order was allowed to become final.

D        Yet another attempt was made by filing a writ petition under Article 32
    of the Constitution in this court in W.P. No. 527/89. This court permitted
    the appellants by order dated 27.10.89 to withdraw the petition with liberty
    to approach the appropriate forum. In consequence, the appellants filed
    W.P. No. 3571/89, which, as stated earlier, was dismissed and the Division
    Bench concluded in its order thus : -
E
                   "It is now well settled that in relati.on 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
F                  could be predicated. It has been a mixed bag, that by and
                   large, h<\d 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
G                  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."

       It is sought to be contended for the appellants that when the other
H   employees similarly situated in the same respondent-Corporation, are
BHARAT PETROLEUM CORPN. v. BHARAT PETROLEUM CORPN. LTD. 641

receiving pensionary benefits on D.A. merged basis, the denial thereof to A
the appellants is arbitrary, unjust and unfair offending the right equality and
impinges the livelihood of the retired employees violating Articles 14 and
21 of the Constitution. We find no substance in the contention. It is seen
from the narrative that the appellants had specifically raised the demand for
increasing the pension on the basis of D.A. merger basic pay and demand
that 50% of the total wages should be the foundation for calculation of the B
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 1.1.89 higher amount of Rs. 50,000 and the C
working employees the benefit of Rs. 25,000.

     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 D
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 E
employees in other regions are getting higher pension than the retired em-
ployees from Bombay region but it is only due to judicial adjudication.

     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 F
accordingly dismissed. No costs.

T.N.A.                                                  Appeal dismissed.