Saju A R vs Union Of India
2021 Latest Caselaw 14765 Ker

WP(C) No.12838/2021                       1 / 19

                       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                      THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
             Thursday, the 15th day of July 2021 / 24th Ashadha, 1943
                             WP(C) NO. 12838 OF 2021
   PETITIONER:

      1. SAJU A R AGED 39 YEARS S/O.RAMAN, WORKING AS OPERATOR B, BHARAT
         PETROLEUM CORPORATION LIMITED, KOCHI REFINERY, AMBALAMUGAL -682302,
         RESIDING AT ANDALAMURI, THEKUMBAGOM, THRIPUNITHURA,
         ERNAKULAM-682301.
      2. JOMET K. JOY, AGED 35 YEARS S/O. JOY, WORKING AS GENERAL CRAFTSMEN
         (ELECTRICAL) GRADE-VI, BHARAT PETROLEUM CORPORATION LIMITED, KOCHI
         REFINERY, AMBALAMUGAL -682302, PERMANENTLY RESIDING AT KANNANKARA
         (H), VALARA P.O., 12TH MILE, IDUKKI-685561.
      3. SUNILKUMAR S., AGED 42 YEARS S/O. SUKUMARAN, WORKING AS OPERATOR-B,
         BHARAT PETROLEUM CORPORATION LIMITED, KOCHI REFINERY, AMBALAMUGAL
         -682302, RESIDING AT CHANGANIKODATH SAPTHAGIRI, THOTTAKKATUKARA
         P.O., ALUVA-683108.
      4. ANWAR T.A., AGED 40 YEARS S/O. T.K.ABDUL REHMAN, OPERATOR GRADE B,
         BHARAT PETROLEUM CORPORATION LIMITED, KOCHI REFINERY, AMBALAMUGAL
         -682302, RESIDING AT 302, CONFIDENT BELLATRIX III, MARKET ROAD,
         THRIPUNITHURA-682031.
      5. THE COCHIN REFINERIES WORKERS ASSOCIATION, BHARAT PETROLEUM
         CORPORATION LIMITED, KOCHI REFINERY, AMBALAMUGAL -682302,
         REPRESENTED BY ITS GENERAL SECRETARY, AJI M.G., S/O. GANGADHARAN,
         AGED 45 YEARS, WORKING AS OPERATOR A ,MANUFACTURING DEPARTMENT,
         BHARAT PETROLEUM CORPORATION LIMITED, KOCHI REFINERY, AMBALAMUGAL
         -682302, RESIDING AT MANNAMPILLY HOUSE, CHENGAL, KALADY P.O.,
         683574.
      6. THE COCHIN REFINERIES EMPLOYEES ASSOCIATION, BHARAT PETROLEUM
         CORPORATION LIMITED, KOCHI REFINERY, AMBALAMUGAL -682302,
         REPRESENTED BY ITS GENERAL SECRETARY, PRAVEENKUMAR P., AGED 42
         YEARS, S/O. K.N.PONNAPPAN, SHIFT CHEMIST-A, Q.C.LAB, BHARAT
         PETROLEUM CORPORATION LIMITED, KOCHI REFINERY, AMBALAMUGAL -682302,
         RESIDING AT KODUVATHARA HOUSE, NADAKKAVU P.O., UDAYAMPEROOR,
         ERNAKULAM-682307.
      7. REFINERY EMPLOYEES UNION , BHARAT PETROLEUM CORPORATION LIMITED,
         KOCHI REFINERY, AMBALAMUGAL -682302, REPRESENTED BY ITS GENERAL
         SECRETARY, NAZEEMUDEEN S.K., S/O. KALEELUDEEN, AGED 54 YEARS, SENIOR
         FITTER CRAFTSMAN, GRADE VII, BHARAT PETROLEUM CORPORATION LIMITED,
         KOCHI REFINERY, AMBALAMUGAL -682302, RESIDING AT OMPONDIL, MARKET
         ROAD, THRIPUNITHURA-682301.
      8. BPCI MAZDOOR SANGH, BHARAT PETROLEUM CORPORATION LIMITED, KOCHI
         REFINERY, AMBALAMUGAL -682302, REPRESENTED BY ITS GENERAL SECRETARY,
         BINIL I., S/O. PAVITHRAN I, AGED 43 YEARS, OPERATOR-A, GRADE VII,
         BHARAT PETROLEUM CORPORATION LIMITED, KOCHI REFINERY, AMBALAMUGAL
         -682302, RESIDING AT ILLATH HOUSE, VARIKOLI P.O., PUTHENKURIZ,
         ERNAKULAM-682308.
 WP(C) No.12838/2021                      2 / 19

   RESPONDENTS:

      1. UNION OF INDIA MINISTRY OF PETROLEUM AND NATURAL GAS SHASTRI BHAVAN,
         NEW DELHI-110001, REPRESENTED BY ITS SECRETARY.
      2. BHARAT PETROLEUM CORPORATION LIMITED, BHARAT BHAVAN, 4 AND 6
         CURRIMBHOY ROAD, BALLARD ESTATE, MUMBAI-400001, REPRESENTED BY ITS
         CHAIRMAN AND MANAGING DIRECTOR.
      3. THE CHIEF GENERAL MANAGER (HR), BHARAT PETROLEUM CORPORATION
         LIMITED, KOCHI REFINERY, AMBALAMUGAL -682302.
      4. ADDL R4. SHIBULAL.G STAFF NO.84268,BPCL KOCHI
         REFINERY,AMBALAMUGAL,KOCHI-682302
      5. ADDL R5. ROCKERY VINOD J STAFF NO.84265,BPCL KOCHI
         REFINERY,AMBALAMUGAL,KOCHI-682302
      6. ADDL R6. BIBIN VARGHESE STAFF NO.84353,BPCL KOCHI
         REFINERY,AMBALAMUGAL,KOCHI-682302
      7. ADDL R7. ANCILY C.V STAFF NO.84562,BPCL KOCHI
         REFINERY,AMBALAMUGAL,KOCHI-682302
      8. ADDL R8. ELDHO PHILIP STAFF NO.84485,BPCL KOCHI
         REFINERY,AMBALAMUGAL,KOCHI-682302 ADDITIONAL R4 TO R8 ARE IMPLEADED
         AS PER ORDER DATED 14.07.2021 IN IA 01/2021 IN WP(C) 12838/2021.

        Writ petition (civil) praying inter alia that in the circumstances
   stated in the affidavit filed along with the WP(C) the High Court be
   pleased to direct respondent Nos 2 and 3 to continue contribution to the
   post retirement medical benefits scheme for employees and further not to
   transfer any amounts under the post retirement medical benefits scheme to
   the National Pension Scheme pending disposal of the Writ Petition

        This petition again coming on for orders upon perusing the petition
   and the affidavit filed in support of WP(C) and this Court's order dated
   30.06.2021 and upon hearing the arguments of M/S ELVIN PETER P.J., N.ANAND
   Advocates for the petitioners, SRI.J.P.CAMA ,SENIOR ADVOCATE alongwith M/S
   P.BENNY THOMAS, D.PREM KAMATH, TOM THOMAS (KAKKUZHIYIL), ABEL TOM BENNY,
   JYOTHISH KRISHNA, AHAMMAD SACHIN K., KURIAN OOMMEN THERAKATH, SRUTHY J.
   MAMPILLY for the respondents 2 & 3 and of Sri.P.RAMAKRISHNAN, PREETHI
   RAMAKRISHNAN (P-212), T.C.KRISHNA, C.ANIL KUMAR, ASHA K.SHENOY, PRATAP
   ABRAHAM VARGHESE Advocates for the respondents 4 to 8, the court passed
   the following:
 WP(C) No.12838/2021                     3 / 19




        Exhibit P1 :TRUE COPY OF THE OFFICE MEMORANDUM DATED 26.11.2008
   ISSUED BY THE GOVERNMENT OF INDIA.

        Exhibit P3 :TRUE COPY OF THE OFFICE MEMORANDUM DATED 21.5.2014
   ISSUED BY RESPONDENT NO.1.

        Exhibit R2(b): TRUE COPY OF THE COMMON JUDGMENT DATED 16.03.2021
   PASSED IN WP(C) NOS 5069 OF 2021, 5391 OF 2021, AND 5641 OF 2021.
 WP(C) No.12838/2021   4 / 19
 WP(C) No.12838/2021                        5 / 19



                                  ANU SIVARAMAN, J.
                      = = = = = = = = = = = = = = = = = = = = = =
                          W.P.(C).Nos.12838 and 12917 of 2021
                      = = = = = = = = = = = = = = = = = = = = = =
                           Dated this the 15th day of July, 2021

                                        ORDER

1. The substantial prayer raised in these writ petitions is a

challenge against the circular issued by the respondent Bharat

Petroleum Corporation Ltd. (BPCL for short) dated 10.6.2021

amending the eligibility conditions of employees for coverage

under the Post Retirement Medical Benefits Scheme. The

contention of the petitioners is that the provisions in the

circular, especially Clause 2(iii) thereof, which states that

employees with less than 15 years of service as on 1.6.2021,

would not be eligible for the Post Retirement Benefits is

directly against the provisions of the Long Term Settlement

entered into between the respondent Corporation and its

employees and is therefore illegal.

2. Heard Sri.Elvin Peter and Sri.C.S.Ajith Prakash, the learned

counsel for the petitioners, Sri.J.P.Cama, learned Senior

Counsel appearing for the Bharat Petroleum Corporation Ltd.,

as instructed by Adv.Benny Thomas and Sri.P.Ramakrishnan,

learned counsel appearing for the additionally impleaded

respondents.

WP(C) No.12838/2021 6 / 19

W.P.(C).No.12838/21 & 12917/21

3. It is contended by the learned counsel for the petitioners in

W.P.(C).No.12838 of 2021 that Clause 42 of the Long Term

Settlement specifically provides for Post Retirement Medical

Benefits. The clause reads as follows:-

"42.Retirement Benefits:-

In accordance with Government guidelines, retirement benefits including contributory Provident Fund, Gratuity, New Pension Scheme, Post Retirement Medical Benefits and Monthly Ext-Gratia Scheme (MEGS) shall be within the ceiling of upto 30% of revised Basic Pay+Stagnation Relief Increment (if any) and DA with effect from 01.08.2008."

4. It is submitted that the Government guidelines referred to in

the Settlement specifically provided for Post Retirement

Medical Benefits to all the employees who had completed 15

years of service as on the date of their superannuation. It is

submitted that the individual petitioners are workers, who are

continuing in the BPCL, but have not completed 15 years of

service as on 1.06.2021. By the impugned executive order, the

BPCL seeks to limit the Post Retirement Medical Benefits to

those employees who have completed 15 years of service as on

1.6.2021. The relevant provisions of the impugned circular

reads as follows:-

WP(C) No.12838/2021 7 / 19

W.P.(C).No.12838/21 & 12917/21

"2. Till January 2007, the Scheme related expenditure was internal to the Company From January 2007 onwards a small percentage of superannuation benefits was being remitted to the PRMBS fund on behalf of each employee, irrespective of their service eligibility Keeping in mind the long term viability of the Scheme, it has been decided to redo the eligibility criteria for the Scheme's membership, which are detailed below These changes would be effective 01.06.2021.

i)Currently, only those employees who have completed 25 and more years of service are eligible to become members of PRMBS. Consequently, those employees who have completed 25 years of service as on 01.06.2021, would continue to be eligible for PRMBS.

ii)Employees who have completed greater than 15 & lesser than 25 years of service as on 01.06.2021, will be given a one-time irrevocable voluntary option to enrol for the PRMB Scheme. If however they are not inclined to enrol for the benefits of the scheme, they may choose not to enrol. In case of employees who opt not to enrol, any contribution made on their behalf by the Corporation towards PRMBS from 01.01.2007 or their respective date of joining, whichever is later, will be transferred to the respective employees' National Pension Scheme (NPS). Consequently, future contribution towards PRMBS from the 30% of retirement benefits would also be discontinued and instead transferred to their respective NPS accounts.

WP(C) No.12838/2021 8 / 19

W.P.(C).No.12838/21 & 12917/21

iii)Employees with less than 15 years of service as on 01.06.2021, would not be eligible for PRMBS,

In case of these employees, any contributions made on their behalf by the Corporation towards PRMBS from 01.01.2007 or their respective date of joining, whichever is later, will be transferred to the respective employees' National Pension Scheme (NPS). Consequently, future contribution towards PRMBS from the 30% of retirement benefits would also be discontinued and instead transferred to their respective NPS accounts."

5. The learned counsel for the petitioners submits that this is a

clear deviation from the Long Term Settlement and the

deprivation of the rights of the petitioners which are

guaranteed under the same. It is further contended that the

illegal circular is issued on the eve of the disinvestment in the

respondent by the Central Government. Relying on the

provisions of the Industrial Disputes Act and the decisions of

this Court, which are produced along with the writ petition,

the reply affidavits and the impleading petition, it is contended

that the respondents cannot be permitted to deviate from the

Long Term Settlement which is binding on both parties.

 WP(C) No.12838/2021                                 9 / 19




          W.P.(C).No.12838/21 & 12917/21


          6. Sri.Ajith      Prakash,       learned       counsel   appearing    for     the

petitioners in W.P.(C).No.12917 of 2021 would contend that

there is no alternate remedy available to the petitioners, much

less an efficacious alternate remedy, in view of the time lines

provided in Exhibit P6 circular. It is contended that in case

the terms of a Long Term Settlement stands violated by an

employer, the actual remedy available to the employee in the

Industrial Disputes Act is only Section 29 of the Industrial

Disputes Act, which is penal in nature. It is submitted that the

respondent employer has already initiated steps for

discussions on the next Long Term Settlement as is evident

from Exhibit P12 draft Memorandum of Agreement, which is

put up for discussion. The attempt at this juncture to oust

eligible workmen from the benefits of the current settlement is

completely without jurisdiction and is unwarranted. It is

further submitted that the Unions had already raised a dispute

and the conciliation proceedings have ended in failure.

However, the exclusion of eligible workers from the Fund and

the shifting of the amounts to the National Pension Scheme

would be fiat accompli after 15.7.2021 and no purpose would WP(C) No.12838/2021 10 / 19

W.P.(C).No.12838/21 & 12917/21

thereafter be served by approaching the adjudicatory

mechanism under the Industrial Disputes Act. The learned

counsel also relies on the decisions reported in M/s.Fabril

Gasosa and others v. Labour Commissioner and others

[1997 KHC 757] and Chennai Port Trust v. the Chennai

Port Trust Industrial Employees Canteen Workers

Welfare Association and others [ AIR 2018 SC 2272].

7. Sri.P.Ramakrishnan, the learned counsel appearing for the

additionally impleaded respondents would submit that the said

respondents were originally employees of the Kochi Refinery

Ltd. (KRL for short) and they were covered by the Post

Retirement Medical Scheme for workmen and their family. It

is submitted that the benefits they were entitled to stood

protected by the amalgamation scheme by which the KRL was

taken over by the BPCL. It is, therefore, contended that the

workmen, who were employed in the KRL before the

amalgamation cannot be denied the benefit of the Post

Retirement Medical Scheme by the impugned circular. It is

further contended that in similar situations, this Court has WP(C) No.12838/2021 11 / 19

W.P.(C).No.12838/21 & 12917/21

considered the contention that Long Term Settlements stood

violated by the employer and had exercised jurisdiction under

Article 226 of the Constitution of India to interdict such

violations.

8. A detailed counter affidavit has been placed on record by the

respondents. The primary contention urged is that this writ

petition is not maintainable before this Court, since any

deviation from a Long Term Settlement will have to be

agitated by the workmen under the provisions of the Industrial

Disputes Act, 1947 and not by recourse to a writ petition

under Article 226 of the Constitution of India.

9. The decisions of the Apex Court in Indian Petrochemicals

Corpn.Ltd. and others v. Shramik Sena and others [AIR

1999 SC 2577], Appollo Tyres Limited v. Industrial

Tribunal [ 2014 (3) KHC 429] are relied on by the learned

Senior Counsel appearing for the respondent Corporation to

contend that these writ petitions are not liable to be

entertained by this Court. It is further contended that the WP(C) No.12838/2021 12 / 19

W.P.(C).No.12838/21 & 12917/21

Office Memoranda, which were applicable to Board level and

below Board level executives and non-unionised Supervisors

had been accepted in prinicple and the relevant guidelines

applicable provided that Post Retirement Medical Benefits

would be available only to employees who have completed 15

years of service and therefore the question whether the

petitioners are eligible for the benefits even in terms of the

settlement is a pointed question of fact and cannot be decided

by this Court. The learned Senior Counsel places reliance on

Clause 45 and 50 of the Long Term Settlement and contends

that the issue raised by the petitioners is one of interpretation

of Clause 42 of the same and is, therefore, a question of fact

which can be decided only after taking evidence. Clause 45

and 50 reads as follows:-

"45. WELFARE & ANY OTHER BENEFIT SCHEMES In supersession of any clauses in all the previous LTSs, all the Welfare & Benefit Schemes and the rules thereof shall be governed by suitable Administrative orders issued from time to time.

xxx xxx xxx xxx 50 IMPLEMENTATION/INTERPRETATION OF MoS The parties shall abide by this MoS in true spirit. In case there is any dispute regarding implementation of this settlement or interpretation of any of its provisions, the parties shall try to sort out their WP(C) No.12838/2021 13 / 19

W.P.(C).No.12838/21 & 12917/21

differences through mutual discussion failing which they shall resort to the machinery prescribed under the Industrial Disputes Act, 1947."

10.It is further contended by the learned Senior Counsel that the

provisions of the very same Long Term Settlement had been

earlier considered by this Court in Exhibit R2(b) judgment and

it was held that even in a case where there is a deviation from

the terms of the Long Term Settlement, the option available to

the employees is to raise a dispute under Section 10 of the

Industrial Disputes Act. It was held that in the light of

availability of alternate and most efficacious remedy of raising

industrial dispute, the writ petitions as framed and filed

cannot be validly entertained. It is contended that the said

judgment had been rendered by this Court specifically

considering the judgments of the Apex Court in Premier

Automobiles Ltd.vs. Kamalekar Shantaram Wadke of

Bombay and others [AIR 1975 SC 2238] and in

Commissioner of Income Tax and others v. Chhabil Dass

Agarwal, [(2014) 1 SCC 603], where the dispute is with

regard to the terms of a Long Term Settlement and how it is to WP(C) No.12838/2021 14 / 19

W.P.(C).No.12838/21 & 12917/21

be construed, the petitioners have the clear and efficacious

remedy of approaching the adjudicatory Forums under the

Industrial Disputes Act. It is contended that the questions in

dispute between the parties are essentially factual in nature

and therefore the adjudication cannot be in terms of Article

226 of the Constitution of India. The learned Senior Counsel

also relies on a decision of the Apex Court in Transport and

Dock Workers Union and others v. Mumbai Port Trust

and another [(2011) 2 SCC 575].

11.I have considered the contentions raised. The availability of

an alternate remedy is by no means an absolute bar for

entertaining a writ petition by this Court. For the writ court to

decline jurisdiction on the ground of availability of an

alternate remedy, it must be satisfied that the alternative

remedy is efficacious in nature. This is more so in view of fact

that the employer in the instant case is an entity which

answers the definition of State under Article 12 of the

Constitution of India. It is clear from the judgments produced

by the petitioners and the impleaded respondents that in cases WP(C) No.12838/2021 15 / 19

W.P.(C).No.12838/21 & 12917/21

where violation of Long Term Settlement by Public Sector

Enterprises and Government companies are alleged, this

Court has been exercising jurisdiction under Article 226 of the

Constitution of India to consider such issues. In Exhibit R2(b)

judgment, the issue was specifically with regard to freezing of

Dearness Allowance due to the Covid pandemic situation by

orders of the Central Government. Clause 12(d) of the Long

Term Settlement specifically contained a provision that

payment of Dearness Allowance would be subject to any

Government guidelines on the subject of Dearness Allowance,

including changes, if any, which are not in conflict with the

overall pay structure as per the Long Term Settlement.

Therefore, the question raised there was specifically whether

the Government of India guidelines, which provided for

freezing of Dearness Allowance, entailed any conflict with the

overall pay structure as per the Long Term Settlement.

12.This Court, considering the decisions relied on by the

respondents, held that the question whether the settlement

stood violated itself was a question of fact. It was held that WP(C) No.12838/2021 16 / 19

W.P.(C).No.12838/21 & 12917/21

the availability of an alternative remedy is not a bar for

entertaining writ petitions. However, it was found that the

statutory remedy of raising an industrial dispute, as provided

in the Industrial Disputes Act, in case of breach of settlement

and non-payment of benefits as per the terms of the

settlement, is an efficacious remedy.

13.In the instant case, I notice that the contention with regard

to the disinvestment by the Union Government in the

respondent company is not disputed. The impugned circular

categorically states that the contribution of the employer in

the case of all employees who have not completed 15 years of

service as on 01.06.2021 would be discontinued and the

amounts shifted to the NPS forthwith. Apart from contending

that what is to be decided is only with regard to interpretation

of the clause providing for Post Retirement Medical Benefits,

the essential contention raised by the writ petitioners that

they are being deprived of the benefits, as promised in the

Long Term Settlement, has not been satisfactorily answered in

the counter affidavit. The fact that a fresh Long Term WP(C) No.12838/2021 17 / 19

W.P.(C).No.12838/21 & 12917/21

Settlement stands put up for consultation is also not disputed.

In the circumstances, requiring the workmen to approach the

Government and the Labour Court in the event of failure of

conciliation would not amount to an efficacious alternate

remedy for the redressal of the grievances raised by them,

which is with regard to discontinuance of the Post Retirement

Medical Benefits and more specifically the transfer of the

contributions made on their behalf towards Post Retirement

Medical Benefits Scheme from 1.1.2007 or their respective

dates of joining, whichever is later to the National Pension

Scheme.

14.Exts.P1 and P3 in W.P.(C).No.12838/2021 which are stated to

be the Government guidelines referred to in the Long Term

Settlement specifically provide that below Board level

executives and non-unionised supervisors in Public Sector

undertakings would be eligible for Post Retirement Medical

Benefits. It is contended by the learned Senior Counsel

appearing for the respondents that Ext.P3 provides that

employees who have put in 15 years of service as on the date WP(C) No.12838/2021 18 / 19

W.P.(C).No.12838/21 & 12917/21

of their superannuation would be eligible for the benefits. The

contention now appears to be that the provision in the

impugned circular that the 15 years has to be completed on

1.6.2021 is a matter of interpretation of a Clause in the Long

Term Settlement. I fail to see how that is so. The provision in

Ext.P3, even if it is admitted that it was one of the Office

Memoranda made applicable in terms of the Long Term

Settlement, only provides that an employee to be eligible

should have put in 15 years of service as on the date of his

superannuation. By no stretch of imagination can it be

contended that the requirement can be arbitrarily altered by

the employer to a particular cut off date, that is 1.6.2021,

which has apparently no basis or rationale at all. Further, the

contention that the question whether the Long Term

Settlement stands violated at all is a question of fact which

can be decided only after taking evidence also cannot be

accepted.

15.In the above circumstances, I am of the opinion that the writ

petitions require to be admitted by this Court and the issue of WP(C) No.12838/2021 19 / 19

W.P.(C).No.12838/21 & 12917/21

violation of the Long Term Settlement requires to be

examined. The writ petitions are therefore admitted. The

respondents are free to place further pleadings on record.

Further proceedings pursuant to the impugned circular,

including the exclusion of workmen eligible under the Long

Term Settlement Scheme from the Post Retirement Medical

Benefits Scheme and the transfer of funds to the National

Pension Scheme in terms of sub-clause (iii) of clause 2 of the

impugned circular shall stand deferred for a period of two

months.

sd/-

Anu Sivaraman, Judge

sj

15-07-2021 /True Copy/ Assistant Registrar