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PETITIONER: BHARAT PETROLEUM CORPORATION LTD. & ANR.

       Vs.

RESPONDENT: BALAKRISHNAN NAMBIAR (DEAD) BY L.RS.

DATE OF JUDGMENT:       20/08/1999

BENCH: Sujata V. Manohar., M. Jagannadha Rao.

JUDGMENT:

Mrs. Sujata V. Manohar, J.

       The  respondent  retired from the Bhrmah Shell  Oil Storage  and Distribution Company Ltd.  on  superannuation with  effect from 1.2.1975.  At the date of his  retirement he was in the managerial cadre of the Company.

       On  his retirement, the respondent became  entitled to  a pension of Rs.  1317/- per month.  He was entitled to commute  1/3rd  of  this pension amounting to  Rs.   439/-, which  he did.  As a result, the respondent received on his retirement a monthly pension of Rs.  878/-.

       In  January, 1976 the Burmah Shell (Acquisition  of Undertaking  in  India)  Act, 1976 was passed  pursuant  to which  the  right,  title and interest and  liabilities  of Burmah  Shall in relation to its undertakings in India came to  be  vested  in the appellant-company.   Thereafter  the appellant-company voluntarily increased the pension payable to  the retired employees.  As of 1.4.1993, the pension  of the  respondent  had  been  voluntarily  increased  by  the appellant-company from Rs.  878/- to Rs.  1278/- per month.

       On  30th  of  June,   1993,  the  appellant-company decided  voluntarily  to give to its retired  employees  an increase  of  56.03%  on their existing  pension.   In  the meanwhile,  in  1989  the   Bharat  Petroleum   Corporation Ex-employees Association representing the pensioners in the clerical  staff category, had filed a writ petition in this Court claiming that such of the pensioners who had commuted portion of their pension and who had lived for more than 15 years after the commutation, should be given the benefit of restoration  of commuted pension.  This relief was  granted by  this Court by its order dated 17.8.1993.  The  decision is  reported as Bharat Petroleum Corpn.  Ltd.  Ex-Employees Association  and  Ors.  v.  Chairman and Managing  Director Bharat Petroleum Corporation ltd., Bombay and Ors.  ([1993] 4  SCC 37).  Although this judgment dealt with the clerical cadre,  the  appellant-corporation  decided to  extend  the benefit of this judgment also to the managerial cadre. As a result, the respondent was given monthly pension calculated as follows:-

       As on 1.4.1993:  Pension Rs.  1278+Rs.720/- (56.03%

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of  Rs.  1278/-) + 439 (commuted pension which was restored in view of the above decision of this court).

       Total    :       Rs. 1717/-

       The pension was calculated in this manner for all employees.

       The respondent, however, contends that the increase of 56.03% which was given with effect from 1.7.1993, should be given on the pension of Rs.1278/- + the commuted pension of Rs. 439/-. As a result, the 56.03% increase would come to Rs. 964/-, and the respondent should get a total pension of Rs. 2684/- per month.

       The  High  Court has granted the relief claimed  by the respondent.  Hence the present appeal has been filed by the appellant.

       The  appellants have submitted that the decision to give a voluntary increase of 56.03% on existing pension was taken  on 30th of June, 1993, much prior to the decision of this  Court in Bharat Petroleum Corpn.  Ltd.   Ex-Employees Association  and  Ors.  v.  Chairman and managing  Director Bharat Petroleum Corporation Ltd., Bombay and Ors.  (Supra) which  was delivered only on 17.8.1993.  When the appellant took  the decision to give an increase of 56.03%, they  had in  mind  only the existing pension which was being paid  to its  employees.  The financial burden on the appellants was calculated  on  the basis of the increase of  56.03%  being given  on  the  then existing pension.   The  decision  was purely  voluntary and there was no legal obligation to give such  an increase.  Since the decision was to calculate the percentage  of increase only on the then existing  pension, they   have   correctly  implemented   this   decision   by calculating  56.03%  increase  on   the  existing  pension. Thereafter,  they  have  also  added  to  this  figure  the commuted value of the pension as per the subsequent decision of this Court.  Therefore, the respondent does not have any right  to  claim  an  increase of 56.03%  on  the  existing pension  plus the commuted value of pension, since this was not the decision taken by the appellant-company.

       We  find  much force in this contention.   Clearly, the increase which was given by the appellant-company was a purely  voluntary increase.  The percentage of increase was on  the then existing pension on the date when the decision was  taken.   On  the date of the  decision,  the  existing pension was the pension as commuted.  It is true that under the  decision of this Court set out earlier, the benefit of restoration  of  commuted portion of the pension  has  been given  with  effect from 1.4.1993.  However,  the  decision which  was taken prior to the judgment of this Court was to give  the  increase  at  the rate of  56.03%  on  the  then existing  pension.   It was not contemplated at that  time, that  the  commuted  portion of the pension  would  also  be retrospectively  added to the pension by virtue a  judgment which  was to be delivered in further.  Since the  increase was  purely  voluntary,  the  decision is  required  to  be implemented  in the manner in which it was contemplated  to be implemented.

       In  the  writ petition, the respondent made a  bare

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averment  to  the effect that not taking into  account  the commuted   value  of  the  pension   for  the  purpose   of calculating  the  increase would violate Article 14 of  the Constitution.   There  is, however, no  factual  foundation laid  either  in  the petition or  thereafter  which  would support  the  plea  under Article 14.  The pension  of  all persons  has been calculated in the manner in which it  was contemplated under the decision of 30th of June, 1993.  The appellants  have pointed out that the entire clerical cadre as  also the managerial cadre have accepted the  calculation so  made and it is only the respondent who is objecting  to such  a  calculation.  The appellants have also  drawn  our attention  to an old decision of this Court in The State of Bombay  and  Anr.  v.  F.N.  Balsara (1951 SCR 682 at  page 708-709)  where  this court has observed, inter alia,  that under   Article   14   a   reasonable   classification   is permissible.    In  the  present  case,   if  at  all   any distinction  is  made  between   different  categories   of pensioners  the pensioners who have commuted their  pension and  who have subsequently got the benefit of the  judgment of  this Court (supra) can be legitimately considered as  a separate class.  Reliance was also placed by the appellants on the decision in Ameerunnissa Begum and Ors.  V.  Mahboob Begum  and  Ors.   (1953 SCR 404 at 414).  In  the  present case,  in the absence of any factual basis for the plea, it is  not possible to consider the application of Article  14 to the present case.

       The appellants have also submitted that calculating the  increase  in  pension  in  the  manner  in  which  the respondent  claims,  would impose a substantial  additional financial burden on it, which was not contemplated when the decision  to  grant an increase was taken on 30th of  June, 1993.   Since  the  decision of the  appellant-company  was purely  voluntary, it was legitimate for the appellants  to take into consideration the financial implications of their proposed  decision.   Learned counsel for  the  respondent, however, has placed reliance on a judgment of this Court in Gopal  Krishna Sharma and Ors.  v.  State of Rajasthan  and Ors.  (1993 Supp.  (2) SCC 375 at 385) where this Court has observed  that when the court grants to the employees  what is due to them in law, financial considerations cannot be a ground for denying the benefit legally due to them.  In the present  case, since the increase was purely voluntary, the financial  burden  was an important factor which went  into the  decision  making process and it cannot, therefore,  be ignored.   Undoubtedly,  as  submitted by  the  respondent, pension  is  not  a  bounty.   Nevertheless,  any  increase voluntarily  given  has  to  be calculated  in  the  manner contemplated under the decision.

       In  the  premises  the appeal is  allowed  and  the impugned judgment and order of the High Court is set aside. There will, however, be no order as to costs.