Saju A R vs Union Of India
2022 Latest Caselaw 5153 Ker

W.P(C).Nos.12838/2021 and 12917/2021

                                          1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS
          MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
                          WP(C) NO. 12838 OF 2021
PETITIONER/S:

      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 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.
 W.P(C).Nos.12838/2021 and 12917/2021

                                       2

             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.

             BY ADVS.
             ELVIN PETER P.J.
             N.ANAND



RESPONDENT/S:

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      SHIBULAL.G
             AND 4 OTHERS SOUGHT TO BE IMPLEADED

      5      ROCKERY VINOD J

STAFF NO.84265,BPCL KOCHI REFINERY,AMBALAMUGAL,KOCHI- W.P(C).Nos.12838/2021 and 12917/2021

682302

6 BIBIN VARGHESE STAFF NO.84353,BPCL KOCHI REFINERY,AMBALAMUGAL,KOCHI-

             682302

      7      ANCILY C.V

STAFF NO.84562,BPCL KOCHI REFINERY,AMBALAMUGAL,KOCHI- 682302

8 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.

BY ADVS.

P.BENNY THOMAS P.RAMAKRISHNAN D.PREM KAMATH TOM THOMAS (KAKKUZHIYIL) ABEL TOM BENNY JYOTHISH KRISHNA AHAMMAD SACHIN K.

KURIAN OOMMEN THERAKATH SRUTHY J. MAMPILLY PREETHI RAMAKRISHNAN (P-212) T.C.KRISHNA C.ANIL KUMAR ASHA K.SHENOY PRATAP ABRAHAM VARGHESE

OTHER PRESENT:

SRI.JAMSHED CAMA (SR.)

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, ALONG WITH WP(C).12917/2021, THE COURT ON 09.05.2022 DELIVERED THE FOLLOWING:

W.P(C).Nos.12838/2021 and 12917/2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944 WP(C) NO. 12917 OF 2021 PETITIONER/S:

1 JOSEPH DENNIS T.P., AGED 36 YEARS S/O. PETER T.B., STAFF NO.84365, OPERATOR B, CDU 2 MANUFACTURING 1 BPCL KOCHI RERINERY, AMBALAMUGAL, PIN-682302, RESIDING AT THATHAMANGALATH HOUSE, PUTHENKURISH P.O., MANANTHDAM, ERNAKULAM.

2 SUREJ MOHAN RAJ, AGED 42 YEARS, S/O. K.K. MOHANRAJ, STAFF NO.84546, SHIFT CHEMIST, QC LAB (GRADE 6), BPCL KOCHI RERINERY, AMBALAMUGAL, PIN-682302, RESIDING AT SAMRUDHI, CHETRAPPILLY LANE, MUPPATHADAM, PIN-683110.

BY ADVS.

C.S.AJITH PRAKASH T.K.DEVARAJAN FRANKLIN ARACKAL PAUL C THOMAS M.B.SOORI BABU M.

NIDHIN RAJ VETTIKKADAN HAARIS MOOSA NIKHITA ANN REBELLO ADESH JOSHI

RESPONDENT/S:

1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HEAVY INDUSTRIES AND PUBLIC ENTERPRISES, GOVERNMENT OF INDIA, UDYOG BHAWAN, RAFI MARG, NEW DELHI-110001.

2 UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF PETROLEUM AND NATURAL GAS, GOVERNMENT OF INDIA, A-WING, SHASTRI BHAVAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI-110001.

W.P(C).Nos.12838/2021 and 12917/2021

3 THE DIRECTOR, DEPARTMENT OF PUBLIC ENTERPRISES, PUBLIC ENTERPRISES BHAVAN, BLOCK NO.14, CGO COMPLEX, LODHI ROAD, NEW DELHI-110005.

4 THE CHAIRMAN AND MANAGING DIRECTOR, BHARAT PETROLEUM CORPORATION LIMITED, BHARAT BHAVAN, BALLARD ESTATE, MUMBAI-400001.

5 THE CHIEF GENERAL MANAGER (HR)/IC, BHARAT PETROLEUM CORPORATION LIMITED, BPCL-KOCHI REFINERY, KOCHI- 682302.

6 THE GENERAL MANAGER (COMP AND BEN), BHARAT PETROLEUM CORPORATION LIMITED, BHARAT BHAVAN, BALLARD ESTATE, MUMBAI-400001.

7 COCHIN REFINERIES EMPLOYEES ASSOCIATION, REG. NO.120/67, BPCL-KOCHI REFINERY, AMBALAMUGHAL, KOCHI-682302, REPRESENTED BY ITS GENERAL SECRETARY MR. PRAVEENKUMAR P.

BY ADVS.

SRI.B.PREM KUMAR, CGC P.BENNY THOMAS D.PREM KAMATH TOM THOMAS (KAKKUZHIYIL) ABEL TOM BENNY JYOTHISH KRISHNA AHAMMAD SACHIN K.

KURIAN OOMMEN THERAKATH SRUTHY J. MAMPILLY

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, ALONG WITH WP(C).12838/2021, THE COURT ON 09.05.2022 DELIVERED THE FOLLOWING:

W.P(C).Nos.12838/2021 and 12917/2021

COMMON JUDGMENT

Writ petitioners in W.P(C).No.12917 of 2021 are two employees of

Bharat Petroleum Corporation Limited, Kochi Refinery and petitioners

1 to 4 in W.P(C).No.12838 of 2021 are another set of employees of the

same management. Petitioners 5 to 8 in W.P(C).No.12838 of 2021 are

the Association of the employees and workmen in BPCL. The company

and its Chief General Manager are arrayed as the respondents in both

the writ petitions. The dispute relates to the Post Retirement Medical

Benefit Scheme (PRMBS)

2. Bharat Petroleum Corporation Limited (for short, 'BPCL')

and the various employees entered into a long term settlement dated

28.08.2002 for a period of 10 years covering the period from

01.08.2008 to 31.07.2018. The significant clause in issue in the writ

petitions is clause 42, which provides 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 Ex-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.

3. The employees and workmen who belong to Sub Executive W.P(C).Nos.12838/2021 and 12917/2021

level cadre staffs were governed by the above long term settlement.

Relevant portions of the above settlement is produced as Ext.P4 in

W.P(C).No.12838 of 2021 and the full text of the long term settlement is

produced as Ext.R2(b) along with the counter affidavit filed by the

BPCL.

4. While so, Ext.P6 dated 10.06.2021 was issued by the BPCL

in the form of an administrative order. The crucial parts of it are as

follows:

" (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

and 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).

W.P(C).Nos.12838/2021 and 12917/2021

Consequently, future contribution towards PRMBS from

the 30% of retirement benefits would also be

discontinued and instead transferred to their respective

NPS accounts.

(iii) Employees with less than 15 years of service as on

01.06.2021, would not be eligible for PRMBS.

In case of those 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

pension towards PRMBS from the 30% of retirement

benefits would also be discontinued and instead

transferred to their respective NPS accounts."

5. The contention of the petitioners herein is that, they have

not completed 15 years as on the targetted date and hence, they fall

within the category of employees who have less than 15 years of

service as on 01.06.2021 and by virtue of Ext.P6, they stand outside the

post retirement medical Benefit Scheme implemented by virtue of

clause 42 of the long term settlement.

6. Petitioners claim that the Post Retirement Medical Benefit

Scheme has been in vogue in BPCL as a welfare measure. According to

the petitioners, it was introduced to provide sustainable medical

benefits to eligible employees and their dependents, having regard to W.P(C).Nos.12838/2021 and 12917/2021

the occupational hazards, arising from the nature of their employment

in BPCL. It was contended by the petitioner that, the benefit so

extended to the petitioners by a binding settlement cannot be

withdrawn by a unilateral notification of the company. Hence, it was

contended that Ext.P6 was unsustainable, violative of the Fundamental

Rights of the petitioners and liable to be quashed. The relief sought in

W.P(C).No.12838 of 2021 was to quash Ext.P6 notification dated

10.06.2021 to the extent of withdrawing the Post Retirement Medical

Benefit of the employees who have less than 15 years of service and to

issue a writ or any other direction directing the respondents to

continue with the current PRMBS, for employees covered by the long

term settlement. In W.P(C).No.12917 of 2021 also, identical relief was

sought, on the premise that notification was violative of Article 14 of

the Constitution and liable to be interfered with.

7. Assailing the relief sought in the writ petitions, detailed

counter affidavit has been filed by the respondents. Reply affidavit has

also been filed by the writ petitioner. Pending the proceedings, by order

in I.A.No.1 of 2021, additional respondents 4 to 8 were impleaded in

W.P(C).No.12838 of 2021. The claim of the additionally impleaded

respondents was that, they were original employees of the Kochi

Refinery Limited and they were covered by the scheme. According to

them, they were protected by the amalgamation scheme, by which, KRL

was taken over by the BPCL. It was claimed that the workmen who W.P(C).Nos.12838/2021 and 12917/2021

were employed in KRL before the amalgamation cannot be denied the

post retirement medical benefit, by the impugned circular.

8. Relying on the specific pleadings in the counter affidavit,

learned Senior Counsel for the petitioner Mr.Jamshed Cama, instructed

by Mr.Benny P. Thomas, learned counsel for the BPCL, contended that

the writ petition was not maintainable before this Court, since any

deviation from the long term settlement arrived at by the parties

through the machinery contemplated under the Industrial Disputes Act

1947, can be adjudicated only under the Industrial Disputes Act, by

raising an industrial dispute, and not by a challenge in a writ petition.

It was contended that the dispute strictly fell within the scope of an

Industrial Dispute as specifically defined under Section 2(s) of the

Industrial Disputes Act. It was further contended that the petitioners,

by filing Ext.P7 complaint in W.P(C).No.12838 of 2021 had set in motion

the scheme of raising the industrial dispute and thereby, separate writ

petition seeking the same relief was legally not sustainable.

9. Advancing the above argument, learned counsel for the

petitioners contended that the crux of the challenge amounts to an

assertion by the petitioners that, they were entitled to the claim of

medical benefit scheme and that question has to be adjudicated and

resolved by the process known to law under the Industrial Disputes Act

by reference to the Labour Court, or by entering into a fresh

settlement.

W.P(C).Nos.12838/2021 and 12917/2021

10. Answering this, learned counsel for the petitioner

Mr.C.S.Ajith Prakash and Adv.Elvin Peter relied on a catena of

decisions. It was contended that, industrial dispute was not the correct

mechanism contemplated under the Statute in the peculiar facts and

circumstances of the case. Learned counsel for the petitioner, to

counter the argument of the learned senior counsel for the BPCL,

placed reliance on the decision of the Supreme Court in Chennai Port

Trust v. The Chennai Port Trust Industrial Employees Canteen

Workers Welfare Association and ors. [2018(6) SCC page 202].

That was a case wherein the employees who were engaged in a canteen

as contemplated under Sec.47 of the Factories Act claimed permanency

and that, they should be paid at par with the regular employees of the

Chennai Port Trust. Rejecting the contention that the Writ Petition was

not maintainable in the light of the availability of effective relief under

the Industrial Disputes Act Supreme Court held that, the High Court,

after having entertained the Writ Petition and granted interim reliefs on

merits, the objection had lost its significance.

11. To counter this argument, learned senior counsel for the

BPCL placed reliance on the decision reported in Indian

Petrochemicals Corpn. Ltd. And Ors. v. Shramik Sena and Ors.

[1999(6) SCC 439). That was a case, wherein, the writ petition was

filed before the High Court for the declaration that the workmen whose

names were shown in the register were regular workmen of the W.P(C).Nos.12838/2021 and 12917/2021

management and were entitled to have the same pay scales and service

conditions as were applicable to regular workmen of the management.

It was held that, the Industrial Tribunal had accepted the contention of

the employer as against the plea put forth by the management and the

employer did not think it appropriate to challenge the decision of the

Industrial Court which was final.

12. In M/s.Fabril Gasosa and Others v. Labour

Commissioner and Others [1997 KHC 757] the question that arose

related to the freezing of variable DA granted by a settlement. The

defence set up by the management was that, such concession was not

sought and was not available also. It was held that a cojoint reading of

Section 2(p) of the Act and Rule 58 unmistakenly showed that the

settlement contemplated by the said dispute was a written settlement

arrived at between the parties. Hence, it could not be varied or

modified except by a written settlement or by a written memorandum,

duly acknowledged by both parties.

13. Learned senior counsel placed heavy reliance on clauses 42,

45 and 50 of the long term settlement to contend that the issue raised

by the petitioners was one of interpretation of clause 42 and

consequently, such questions of fact could be settled only after taking

evidence.

Clauses 42, 45 and 50 reads as follows:

"42. Retirement Benefits:

W.P(C).Nos.12838/2021 and 12917/2021

In accordance with Government guidelines,

retirement benefits including contributory Provident Fund,

Gratuity, New Pension Scheme, Post Retirement Medical

Benefits and Monthly Ex-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.

45. Welfare and any other benefit schemes:

In supersession of any clauses in all the previous

LTSs, all the Welfare and Benefit Schemes and the rules

thereof shall be governed by suitable Administrative

orders issued from time to time.

50. Implementation/Interpretation of MOS.

The parties shall abide by the 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 difference through

mutual discussion, failing which, they shall resort to the

machinery prescribed under the Industrial Disputes Act,

1947."

14. Both sides placed reliance on a catena of decisions to

advance their contention regarding the admissibility of writ petition

claiming reliefs. The attention of this Court has been drawn to various

decisions which held that, when an alternate remedy was available, W.P(C).Nos.12838/2021 and 12917/2021

scope of granting relief in a writ petition was not proper. Learned

counsel for the petitioner placed reliance on the decision reported in

Premier Automobiles Ltd. v. Kamalekar Shantaram Wadke of

Bombay and Others [AIR 1975 SC 2238]. Transport and Dock

Workers Union and Others v. Mumbai Port Trust and Another

[(2011)2 SCC 575] was a case, wherein, different working hours were

provided for the staff. Having regard to the nature of the allegations

and the establishment of violation of Article 14 of the Constitution of

India, it was held that, writ petition was maintainable. Learned counsel

for the petitioner further relied on the decisions reported in

Uttaranchal Forest Development Corpn. And Ors. v. Jabar Singh

and Ors. [(2007)2 SCC 112] and Surendran Nair P.N, v.

Chairman/Managing Director, BPCL and Ors.

[MANU/KE/4094/2018].

15. On the other hand, it was contended by the learned senior

counsel that, when alternate specific provision was made, jurisdiction

under Constitution of India was impliedly barred. No relief could be

granted thereafter. To buttress this contention, learned counsel for the

respondent relied on the decision in Premier Automobiles Ltd.

(Supra). Respondent further relied on the decisions reported in

Uttaranchal Forest Development Corpn. (surpa), Commissioner

of Income Tax and Others v. Chhabil Dass Agarwal [2013 KHC

4619] and Joshi Technologies International Inc. v. Union of India W.P(C).Nos.12838/2021 and 12917/2021

(UOI) and Ors. [MANU/SC/0616/2015]. Reliance was placed on the

decisions reported in Century Spinning and Manufacturing

Company Ltd. And Another v. The Ulhasnagar Municipal Council

and Another [1970(1) SCC 582], Whirlpool Corporation v.

Registrar of Trade Marks, Mumbai and Others [(1998)8 SCC 1]

16. It is pertinent to note that the period of the long term

settlement expired on 31.07.2018. By virtue of section 2(p) of the

Industrial Disputes Act, settlement means a settlement arrived at in the

course of conciliation proceeding and includes a written agreement

between the employer and workmen arrived at otherwise than in the

course of conciliation proceeding, where such agreement has been

signed by the parties thereto in such manner as may be prescribed and

a copy thereof has been sent to the appropriate Government and the

conciliation officer. It is binding on the parties by virtue of the

provisions of the Industrial Disputes Act 1947. The long term

settlement would continue to be in operation, till, it is superseded,

overridden or withdrawn by the parties. This position is clear from the

decision reported in Fabril Gasosa's case (supra). Evidently, in the

absence of any new long term settlement governing the parties, it has

to be held that Ext.P4 settlement continue to be in force.

17. The impact of Ext.P6 in W.P(C).No.12838 of 2021 on Ext.P4

settlement has now to be evaluated. By virtue of Ext.P6, a division is

made between the employees who have completed 25 years and those W.P(C).Nos.12838/2021 and 12917/2021

who have less than 25 upto 15 years. It was provided that, only one

category will be entitled to the benefit of PRMBS.On the other hand, by

virtue of the notification, the employees with less than 15 years service

as on 01.06.2021, would not be eligible for the medical benefit scheme.

In other words, from among the employees who stood governed by the

long term settlement, a new group including the petitioners was carved

out. By virtue of that provision, benefit under clause 42 of the long

term settlement stands denied to persons who have not completed 15

years of service as on 01.07.2021. In other words, settlement which

was applicable to the entire sub executive level staff has now been

tinkered with, by carving out a group of persons from its ambit and by

denying the benefits to them by the said notification. Evidently, in the

light of the decision reported in Fabril Gasosa's case (supra)

settlement can be brought to an end only by an agreement between the

parties or by a fresh settlement arrived at by the parties governing the

earlier period.

18. This issue can be viewed from yet another angle. Evidently,

the impact of Ext.P6 is to deny the benefits of the provisions of post

retirement medical benefit scheme to a group of employees.

19. The impact of Ext.P6 as referred to earlier was to carve out

a group of persons from the scope of clause 42 and to deny the benefit

of PRMBS to such persons. Virtually, it was an instance of employer

denying a benefit incorporated in a settlement, to a group of W.P(C).Nos.12838/2021 and 12917/2021

beneficiaries. Any dispute relating to it cannot constitute an industrial

dispute as contemplated under Section 2(s) of the Industrial Disputes

Act. It is only an instance of employer depriving a group of persons

governed by the settlement from enjoying the benefits of medical

scheme by virtue of a unilateral administrative order. Suffice to hold

that, since parties are governed by the settlement, the only method of

depriving the terms of settlement to parties was by either bringing the

settlement to an end or by entering into a fresh settlement. If the

employer refuses to implement the benefit of a settlement to a limited

group of persons, the remedy available to such persons is to challenge

the refusal, and not by raising an industrial dispute. No disputed

question of fact worth adjudication arises in this situation as correctly

contended by the learned counsel for the petitioner. It is also pertinent

to note that, no adjudication of facts in issue is also called in, in this

dispute.

20. Having considered the entire issues involved, it is only to be

held that the objection raised by the company regarding the

sustainability of the writ petition is only to be rejected. Writ petition is

perfectly maintainable in the nature of the reliefs sought.

21. As indicated earlier, only crucial question is regarding the

legality of Ext.P6 notification in W.P(C).No.12383 of 2021. By virtue of

the provisions of the Industrial Disputes Act, settlement cannot be

brought to an end during its subsistence, completely or in part by a W.P(C).Nos.12838/2021 and 12917/2021

unilateral notification issued by a party to the settlement.

22. The notification dated 10.06.2021 produced as Ext.P6 in

W.P(C).No.12838 of 2021 which is Ext.P8 in W.P(C).No.12917 of 2021

to the extent it denies the benefit of clause 42 to petitioners who have

not completed 15 years stand quashed.

In the result, writ petitions are allowed. Ext.P6 in

W.P(C).No.12838 of 2021 which is Ext.P8 in W.P(C).No.12917 of 2021,

to the extent it deprives the benefit of the medical scheme to those who

have not completed 15 years stand quashed and there will be a

direction to the employer BPCL to continue to give effect to the post

retirement medical benefit scheme to the petitioners and similarly

situated persons, without any distinction regarding the period of

service and strictly in accordance with the long term settlement.

Writ Petitions are allowed as above.

Sd/-

SUNIL THOMAS JUDGE Sbna/ W.P(C).Nos.12838/2021 and 12917/2021

APPENDIX OF WP(C) 12917/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE OFFICE MEMORANDUM NO.2(70)/08-DPE(WC)-GL-XVI/08 DATED 26/11/2008 ISSUED BY THE 1ST RESPONDENT.

Exhibit P2 A TRUE COPY OF THE OM NO. 2(70)/08-DPE(WC)-

GL-VII/09 ISSUED BY THE 1T RESPONDENT DATED 02/04/2009.

Exhibit P3 A TRUE COPY OF THE OFFICE MEMORANDUM F.NO.2(1)/2013-DPE(WC)-GL-VI/13 DATED 24/01/2013 ISSUED BY THE 1ST RESPONDENT.

Exhibit P4 A TRUE COPY OF THE POST RETIREMENT MEDICAL BENEFIT SCHEME (PRMBS) IN FORCE FOR THE RETIRED MANAGEMENT STAFF AND WORKMEN OF THE MARKETING IN MUMBAI REFINERY IS AVAILABLE AND TAKEN FROM THE WEBSITE.

Exhibit P5 A TRUE COPY OF THE RELEVANT PAGE OF THE LONG TERM SETTLEMENT AT CLAUSE 42 OF BPCL KOCHI REFINERY, COVERING THE PERIOD 01/08/2008 TO 31/07/2018.

Exhibit P6 A TRUE COPY OF THE OFFICE MEMORANDUM NO.W-

02/0028/2017-DPE(WC)-GL-XIII/17 ISSUED BY THE 1ST RESPONDENT DATED 03/08/2017.

Exhibit P7 A TRUE COPY OF THE CONSOLIDATED GUIDELINES ISSUED BY THE 1ST RESPONDENT DATED 27/09/2018.

Exhibit P8 A TRUE COPY OF THE CIRCULAR NO.HRD. C & B.I. CON.PRMBS DATED 10/06/2021.

W.P(C).Nos.12838/2021 and 12917/2021

APPENDIX OF WP(C) 12838/2021

PETITIONER EXHIBITS

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

Exhibit P2 TRUE COPY OF THE POST RETIREMENT MEDICAL BENEFITS SCHEME AT MUMBAI REFINERY AND EXTENDED TO KOCHI REFINERY OF RESPONDENT NO.2.

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

Exhibit P4 TRUE COPY OF THE RELEVANT PORTION OF THE LONG TERM SETTLEMENT SCHEME.

Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 20.3.2003 PASSED IN OP(C) NO.28675/2000-L.

Exhibit P6 TRUE COPY OF THE NOTICE DATED 10.6.2021 ISSUED BY RESPONDENT NO.2.

Exhibit P7 TRUE COPY OF JOINT LETTER DATED 15.6.2021 PREFERRED BY TRADE UNIONS AT BPCL- KOCHI REFINERY TO RESPONDENT NO.3.