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2017 Supreme(Bom) 2062
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Anoop V. Mohta, P.R. Bora, JJ.
Tata Global Beverages Limited (Formerly known as Tata Tea Limited) - Appellant
Versus
Tata Tea employees Union a trade Union & Anr. - Respondents
Civil Application No. 67 of 2009 In Letters Patent Appeal No. 242 of 2007 In Writ Petition No. 4009 of 1997
Decided On : 07-03-2017
Advocate Appeared:
For the Appellant : Mr. Ajit Kapadia, Mr. Pratik Salgaonkar
For the Respondents: Mr. Arshad Shaikh, Netaji Gawade, M/s. Sanjay Udethi and Co.
Headnote:Constitution of India, 1950-Article 226-Exercise of writ jurisdiction.-Exercise of writ jurisdiction by High Court under Article 226 or 227 of Constitution cannot be tied down in a strait-jacket formula.
The parameters for exercise of jurisdiction under Article 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. The High Court may in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice, should occasion, can exercise its jurisdiction.
Industrial Disputes Act, 1947 - Section 9-A-Withdrawal of Pension scheme.-Withdrawal of Pension Scheme, without giving notice of change under Section 9-A of Act, unilaterally, unjustified.
The employer had issued notices consequent to the amendment of ESI notification before withdrawing the said scheme. Whereas in the instant matter the company without giving notice of change as envisaged under Section 9-A of the Industrial Disputes Act, 1947, unilaterally withdrew the Pension Scheme. In the circumstances, the contention of the company that there was no illegality in its action has to be rejected.
It was also sought to be canvassed by the counsel appearing for the company that the Single Judge assigned to itself the role of an appellate Court and stepped into reappreciating and evaluating the evidence and substituted his own findings in place of those arrived at by the Industrial Tribunal. According to the counsel such course was not permissible in exercise of certiorari jurisdiction by the High Court. To buttress the said contention the counsel has relied upon the judgment of the Hon`ble Supreme Court in case of Surya Deo Rai v. Ram Chander Rai and others, 2004 (1) Mh LJ (SC) 633 : (2003) 6 SCC 675.
The Single Judge has correctly held that the document of 1948 was neither a settlement nor an agreement. Not also concur with the finding recorded by the Single Judge that the document of 1948, which originally was a voluntary benefit granted to the workers by the company had crystalized into privilege with the passage of time and the clause for withdrawal therein cannot operate to the disadvantage of the workers, when the said benefit has become a privilege over the years. Apart from the justness in the action of the company to withdraw the Pension Scheme on the ground that payment of gratuity is made compulsorily payable, withdrawal of such privilege without a notice of change, in no case was permissible.
Industrial Disputes Act, 1947 - Section 10-Withdrawal of Pension Scheme.-Withdrawal of Pension Scheme by circular dated 22.5.1974 unilaterally not justified.
It is true that though the Pension Scheme was withdrawn by the company by a circular dated 22nd May, 1974, the dispute in that regard was raised in the year 1983. It is also true that in the period between-1974 to 1983 four employees got retired and none of them or the Union raised any dispute, though the benefit of pension was not extended to the said employees. Ostensibly, it may, therefore, appear that the dispute` was raised after about 9 years which certainly cannot be said to be within reasonable time. However, it was rightly pointed out by the counsel for the Union that though the circular, whereby the Pension Scheme was withdrawn, was issued on 22nd May, 1974, the first retirement thereafter took place in the year 1980, when an employee by name `J` got retired. The other three employees got retired thereafter in the year 1981 and in 1982. Thereafter, one `P` was issued with the notice dated 29th February, 1983 informing him that he will be retiring on attaining the age of super- annuation with effect from 29th February, 1984. When the request of `P` to process his case for pension was refused, the Union immediately raised the dispute. It, therefore, cannot be said that there was delay in raising the dispute by the Union. Even if it is assumed that the cause of action had arisen in 1980 when first retirement took place after issuance of the notice of 1974 and Pension Scheme was not made applicable to the retiring employee viz., `J` the delay caused, at the most was of three years, which cannot be held to be inordinate or unreasonable and the dispute so raised cannot be held to be a stale or belated claim.
P.R. Bora, J.
The present appeal is directed against the order passed by the learned Single Judge in Writ Petition No. 4009/1997, on 19th of September, 2007. Present respondent No. 1 had filed the said writ petition challenging the award passed by present respondent No. 2 in Reference (I.T.) No. 156/1985 on 31st of July, 1996. Following was the dispute referred to the Industrial Tribunal for adjudication.
SCHEDULE
"To determine the propriety, validity and legality of the Company's circular dated 22nd May, 1974 intimating unilateral withdrawal of the Pension Scheme from 9th of May, 1974."
The learned Industrial Tribunal rejected the Reference. In the writ petition, the learned Single Judge set aside the order passed by the Industrial Tribunal and held that the benefit which initially was extended unilaterally by the employer had metamorphosed into a privilege with the passage of time and the workers were entitled to receive pension as a matter of right. Aggrieved thereby, the employer has preferred the present appeal. For convenience, appellant is hereinafter referred to as 'Company' and respondent No. 1 as 'Union'.
2. The company had introduced a Pension Scheme for its clerical staff and had informed the employees about the said Scheme by a circular dated 2nd of March, 1948. The circular reads thus:
"TO ALL MEMBER OF THE INDIAN CLERICAL STAFF PENSION The Directors have agreed that, with effect from 1st January 1948 pensions on the following scale will be paid to employees retiring with the consent of the Company after 35 years' service.
50% of Salary drawn in last year of service less whatever sum the Company's contribution to the Provident Fund in respect of the employees and his share of the Capital Reserve Account will yield when invested at 4% For example:
Assume 50% is Rs.100/- and the Company's Contribution and share of Capital Reserve Account in Provident fund payable to retiring employee is Rs.3,000/-. The maximum pension payable will be Rs.100/- less Rs.10/- (being interest of 4% p.a. on Rs.3000 or Rs.90/- per month.
For retirement with the consent of the company before 35 years' service but not before 30 years' service proportionate pension will be paid as follows:-
34 years 47% of Salary less Provident Fund adjustment as above.
33 Years - do
32 years - do
31 years - do
30 years - do
Retirements under 30 years' service to be considered on their merits and will receive the sympathetic consideration they have received in the past. The same applies to assistance to widows and dependents in the event of the premature decease of the employee. No fixed rules regarding these will be laid down.
So long as a dearness allowance remains in force, a retiral dearness allowance equal to 50% of the minimum dearness allowance payable from time to time to employees will be paid to retiring employees eligible for pensions. It must be clearly understood that the above scheme is entirely discretionary on the part of the Directors and that they are at liberty to withdraw it any time and particularly if the legislature or any award made under legislation places the company in a position where the company is bound to pay any pension, gratuity or retiral or superannuation allowance.
For Pro JAMES FINLAY and Co., LIMITED Sd/- Charles Forgan Worries.
Bombay, 2nd March 1948"
3. On 22nd of May, 1974, the company issued another circular informing thereby that the clerical staff shall not be entitled to pension since the Payment of Gratuity Act 1972 had come into force and withdrew the said Pension Scheme w.e.f. 9th of May, 1974. In the year 1983, an employee by name P.S. Manian, claimed the pension as per the Scheme introduced by the Company vide circular dated 2nd of March, 1948. After his request was rejected by the Company informing him that the said Pension Scheme was withdrawn by the Company after introduction of Payment of Gratuity Act, 1972, the Union raised a dispute about withdrawal of the said Pension Scheme and the Government, in exercise of t
