BHARAT PETROLEUM (ERSTWHILE BURMAH SHELL) MANAGEMENT STAFF PENSIONERS.versusBHARAT PETROLEUM CORPORATION LTD. & ORS.

 A
        BHARAT PETROLEUM (ERSTWHILE BURMAH SHELL)
              MANAGEMENT STAFF PENSIONERS.
                                           v.
         BHARAT PETROLEUM CORPORATION LID. & ORS.

                                   MAY 11, 1988
 B
       [RANGANATH MISRA AND MURARI MOHON DUTI, JJ.]

            Burmah Shell (Acquisition of Undertakings in India) Act, 1976:
      ss. 3, 4, 9 & JO( 1)-Burmah Shell Management Staff Pensioliers-
      Claim for escalation of pension-Admissibility of.
 c          Civil Services: Pension-No lunger considered a bounty-Held
      to be property-Entitlement to escalation of pension-Judicial notice
      can be taken of the fact that the rupee has lost its value.

            Burmah Shell Oil Storage and Distributing Company of India
 D    Limited bad a non-contributory pension fund. Consequent upon
      nationalisation of the petroleum industry, this fund was taken over by
      the Government company, respondent No. I, under s. 10(1) of the
      Burmah Shell (Acquisition of Undertakings in India) Act 2 of 1976.

            In this writ petition under Art. 32 of the Constitution the erst-
 E    while Burmah Shell Management Staff Pensioners claimed adequate
      escalation in their pension keeping in view the loss of purchasing power
      of the rupee and the general rise in the cost of living. In support of their
      claim they relied upon the steep escalation in the pension granted by the
      Hindustan Petroleum Corporation, a sister concern, to its employees.
      The latter bas no such fund. It was contended for the respondent-
i F   Company that if the escalation admitted by the Hindustan Petroleum
      Corporation is accepted as the basis for escalation in the respondent
      company there would be injustice or a burden would arise which they
      cannot discharge.

            Allowing the writ petition,
 G
          HELD: 1. The petitioners being the management staff of the
      Burmah Shell are entitled to a hike in the pension. [316E-F]

            2. Judicial notice can be taken of the fact that the rupee has Jost
      its value to a considerable extent. Pension is no longer considered as a
 H    bounty and it has been held to be property. ln a welfare state, as ours,
                                          312
.BHARAT PETil.OLEUM STAFF v. BHARAT PE1ROLEUM CORPN. [MISRA. J. [313

rise in the pension of the retired personnel, who are otherwise entitled
                                                                            A
to it, is accepted by the State and the State has taken the liability. In
the instant case, if the similarly situated sister concern like Hindus-
tan Petroleum Corporation can admit appropriate rise in the pension,
there is no justification as to why the respondent company should not do
so. [316D-E]
                                                                            B
       3. The respondent-company has an obligation to pay from its
earnin~ into the fond and merely because the existing fund is not
adequate to bear the additional liability the claim which is othern'ise
justified cannot be rejected. The company's current funds are available
to supplement the pension fund. [3!6C]

      4. Respondent No. l to give to the petitioners hike in the pension    c
effective from Isl May, 1988 at the same rate as is being given by
Hindustan Petroleum Corporation. If the amount available from the
pension fund is not adequate the Government-company would allocate
appropriate funds to meet the demand. The additional pension to be
disbursed latest by 31st of July, 1988. [316F-G]                            D

         ORIGINAL JURISDICTION: Writ Petition (Civil) No. 590 of
 1987.

         (Under Article 32 of the Constitution of India)
                                                                            E
         B.B. Sawhney for the Petitioners.

    G.B. Pai, 0.C. Mathur, Ms. Meera Mathur, Ms. Deepa
Chhabra and D.N. Misra for the Respondents.

         The Judgment of the Court was delivered by                         F

      RANGANATH MISRA, J. Under the Burmah Shell {Acquisition
of Undertakings in India) Act 2 of 1976, (hereinafter referred to as the
'Act'), the Union of India acquired the right, title and interest of
Burmah Shell Oil Storage and Distributing Company of India Limited
(hereinafter referred to as Burmah Shell) in relation to its under- G
takings in India. Sections 3, 4, and 9 of the Act are relevant. Under
section 3 the right, title and interest of Burrnah Shell in relation to its
undertakings in India stood transferred and became vested in the
Central Government. In terms of section 4, the assets and liabilities
were taken over by the Government of India. Under section 9 persons
employed under Burmah Shell came under the employment of the H
    314         SUPREME COURT REPORTS               I1988] Supp. I S.C.R.
    Government Company known as Bharat Petrolium Corporation
A   Limited (respondent No. l herein). Section IO( I) provides thus:
                    "Where a provident, superannuation, welfare or
               other fund has been established by Buimah Shell for the
               benefit of the persons employed by it in connection with its
               undertakings in India, the monies relatable to the
B              employees-

                     (i) whose services are transferred by or under this
                     Act to the Central Government or the Government
                     company; or

                     (ii) who are in receipt of pension or other pensionary
c                    benefits immediately before the appointed day,

               shall, out of the monies standing on that day to the credit of
               such provident, superranuation, welfare or other fund
               stand transferred to and vested in, the Central Government
D              or the Government company, as the case may be, free from
               any trust that may have been constituted by Burmah Shell
               in respect thereof."

    The detailed provisions for administration of the fund are contained in
    that section.
E
           This petition under Article 32 of the Constitution is by the
    erstwhile Burmah Shell Management Staff Pensioners who claim two
    reliefs:

          ( 1) Extension of the benefit of restoration of commuted pen-
F         sion after the period of 15 years from the date of commutation as
          decided by this Court in the case of Common Cause & Ors. v.
          Union qf India & Ors., AIR 1987 SC 210 and

          (2) Adequate escalation in foe pension keeping in view the loss
          of purchasing power of the rupee and the general rise in the cost
G         of living.

          In answer to the rule nisi, the respondent made its return by
    contending that the pension scheme of the first respondent is a funded
    scheme. Th~ decision of this Court in the case of Common Cause
    rendered in respect of Government servants, both of civil and defence
H   services, cannot be extended to a public sector undertaking. The pen-
    BHARAT PETROLEUM STAFF v. BHARAT PETROLEUM CORPN. [MISRA, J.J 315

    sion scheme of Bunnah Shell was set up by Non-Contributory Pension A
    Fund by a Trust Deed in December; 1950, but effective from 1st
    January, 1947, of which both the management staff as also the clerical
    staff were members. This Court on 13th of November, 1987, referred
    two questions arising for detennination for the opinion of Mr. D.K.
    Lodaya, Chief Actuary of the Life Insurance Corporation of India at
    Bombay, with the consent of parties and the two questions referred to B
    are:

               (1) Is the pension fund actuarially solvent to bear the liability
         flowing from restoration of commuted portions of pensions after
         13 or 15 years from the respective dates of commutation ? If not,
         the extent of additional funds necessary for the purpose may be
         indicated, and the tax relief which will be available for such C
         contribution ofadditional funds may also be indicated.

                (2) Is the pension fund actuarially solvent to bear (a)
         enhancement of pensions and (b) linking pensions with the cost
         of living index? If so, the extent by which the pensions can be D
         enhanced by utilising the existing resources of the Fund may be
         indicated.

          The report has been received and kept on record. It indicates
    that the additional liability on account of restoration of the commuted
    value of the pension on the basis of 13 years would be more that Rs. 3 E
    Crores and on the basis of 15 years would be more than Rs.2-1/2
    Crores. Counsel for the petitioners has, however, told us in course of
    the hearing that the question of restoration of the commuted value of
~   the pension may not be adjudicated at present. In view of such submis-
    sion, we do not examine this issue.
                                                                            p
         The writ petition is, therefore, confined to the only question as
    to the escalation of pension. Bunnah Shell has a fund known as
    Burmah Shell India Pension Fund and it has its own rules. When
    Government nationalised the Petroleum industry, another company
    known as Caltex India Ltd. was also acquired and came to be known as
    Hindustan Petroleum Corporation. It is thus a sister concern owned by G
    the Central Government. Petitioners relied upon the increase in the
    pension granted by the Hindustan Petroleum Corporation to its emp-
    loyees in support of their claim for the increase in the pension. While
    Bunnab. Shell had a pension fund which has been taken over by the
    Government company, Caltex did not have such a fund. The allegation
    made b.y the petitioners that the Hindustan Petroleum Corporation H
    316         SUPREME COURT REPORTS                 I 19881 Supp. 1 S.C.R.
A   where there is no such fund has granted a steep escalation in the
    pension has not been disputed before us. Admittedly Burmah Shell is a
    bigger company than Hindustan Petroleum Corporation. We have
    been told that the total Burmah Shell management staff presently in
    the employment of the respondent No. 1 would be around a thousand.
    Nothing acceptable has been placed before us from where support can
B
    be received for the argument of Mr. Pai, learned counsel for respon-
    dent No. 1, that if the escalation admitted by Messrs. Hindustan
    Petroleum Corporation is accepted as the basis for escalation in
    Burmah Shell there would be injustice or a burden would arise which
    the respondent-Company cannot discharge. The respondent-Company
    has an obligation to pay from its earnings into the Fund and merely
c   because the existing fund is not adequate to bear the additional liabi-
    lity the claim which is otherwise justified cannot be rejected. As we
    have already pointed out, the Company's current funds are available
    to supplement the pension fund.

           Judicial notice can be taken of the fact that the rupee has lost its
0
    value to a considerable extent. Pension is no longer considered as a
    bounty and is has been held to be property. In a welfare State as ours,
    rise in the pension of the retired personnel who are otherwise entitled
    to it is accepted by the State and the State has taken the liability. If the
    similarly situated sister concern like Hindustan Petroleum Corpora-
    tion can admit appropriate rise in the pension, we see no justification
E   as to why the respondent-Company should not do so.

          We, therefore, hold that the petitioners being the management
    staff of the Burmah Shell would be entitled to a hike in the pension
    admissible at the same rate as is being given by Hindustan Petroleum           -.
    Corporation. We accordingly direct respondent No. 1 to give the
F   necessary hike in the pension effective from 1st May, 1988. If the
    amount available from the pension fund is not adequate, it would
    obviously mean that the Government company would allocate appro-
    priate funds to meet the demand. The additional pension should be
    disbursed latest by 31st of July, 1988. No costs.
G P.S.S.                                                     Petition allowed.