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PETITIONER:

SOM PRAKASH REKHI

Vs.

RESPONDENT:

UNION OF INDIA & ANR.

DATE OF JUDGMENT13/11/1980

BENCH:

KRISHNAIYER, V.R.

BENCH:

KRISHNAIYER, V.R.

REDDY, O. CHINNAPPA (J)

PATHAK, R.S.

CITATION:

1981 AIR 212 1981 SCR (2) 111

1981 SCC (1) 449

CITATOR INFO :

RF 1986 SC1499 (16)

R 1986 SC1571 (55)

R 1987 SC 51 (3)

R 1987 SC1086 (18)

APL 1988 SC 469 (9,10)

F 1989 SC1642 (24)

RF 1990 SC1167 (10,14)

RF 1992 SC 76 (2)

ACT:

Constitution of India-Burmah Shell (Acquisition of

Undertakings in India) Act, 1976-Company acquired by the

Government and vested in a statutory corporation-Corporation

if State-Test for determining whether a body is State within

the meaning of article 12.

HEADNOTE:

Under a voluntary retirement scheme in force in the

company the petitioner, a clerk in Burmah Shell Oil Storage

Ltd., retired voluntarily after qualifying for pension. The

pension payable to him was regulated by the terms of a trust

deed of 1950 under which a pension fund was set up and

regulations were made for its administration. The petitioner

was also covered by a scheme under the Employees Provident

Fund and Miscellaneous Provisions Act, 1952 and to gratuity

under the Payment of Gratuity Act, 1972.

The annual pension to which he was entitled under the

trust deed, without making the authorised deductions as

provided under regulation 16 of the trust deed, worked out

to a sum of Rs. 165.99 per mensem. He was also paid

supplementary retirement benefit of Rs. 86/- per month for a

period of 13 months after his retirement which was stopped

thereafter.

The employer informed the petitioner that from out of

his pension of Rs. 165.99 two deductions were made, one of

which was on account of employees provident fund payment

made to the pensioner and the other on account of payment of

gratuity with the result the pension payable to him was

shown as Rs. 40.05. The company also cut off the monthly

payment of Rs. 86/- which was paid as supplementary

retirement benefit on the score that it was ex gratia,

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discretionary and liable to be stopped at any time by the

employer.

In the meantime the company was statutorily taken over

by force of the Burmah Shell (Acquisition of Undertakings in

India) Act, 1976. Thereafter the Central Government took

steps to vest the undertaking in the second respondent, the

Bharat Petroleum, which then became the statutory successor

of the petitioner’s employer. His pensionary rights such as

he had, therefore, became claimable from the second

respondent.

A preliminary objection was raised on behalf of the

corporation that no writ would lie against the second

respondent since it is neither a government department nor a

statutory corporation but just a company.

^

HELD : By the Court :

The petitioner is entitled to the payment of full

pension.

(per majority Krishna Iyer and Chinnappa Reddy, JJ Pathak, J

dissenting).

1. The Bharat Petroleum is State within the meaning of

Article 12 of the Constitution and a writ will lie against

it under Article 32. [128A]

112

(a) The settled position in law is that any authority

under the control of Government of India comes within the

definition of State. On the appointed day the right title

and interest in Burmah Shell did vest in the Central

Government and by virtue of section 3 the Central Government

was the transferee of the undertaking. While the formal

ownership was cast in the corporate mould, the reality

reaches down to State control. The core fact is that the

Central Government, through section 7 chose to make over its

own property to its own offspring. Therefore, the Burmah

Shell