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PETITIONER: COMMITTEE FOR PROTECTION OF RIGHTS OF ONGCEMPLOYEES AND ORS.

       Vs.

RESPONDENT: OIL AND NATURAL GAS COMMISSION THROUGH ITSCHAIRMAN--TEL BHAV

DATE OF JUDGMENT23/03/1990

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) MUKHARJI, SABYASACHI (CJ) RAY, B.C. (J) KANIA, M.H. SAIKIA, K.N. (J)

CITATION:  1990 AIR 1167            1990 SCR  (2) 156  1990 SCC  (2) 472        JT 1990 (1)   560  1990 SCALE  (1)620

ACT:     Oil and Natural Gas Commission Act, 1959: Section  13(1)     & 32 Oil and Natural Gas Commission (Terms and Conditions of     Appointment  and  Service)  Regulations,  1975.’  Regulation     3(2).         Service  Law--Pension--Temporary  Government  employees-     Absorption in a statutory body. Oil and Natural Gas  Commis-     sion--No right to receive pension as a part of conditions of     service before absorption--After absorption opting Contribu-     tory  Provident      Fund  and availing the  benefit.  Held  not     entitled  to pension in addition to Provident  Fund--Protec-     tion   of   Section   13(1)   and   Regulation       3(2)   held     inapplicable--Section  12 of the Employees’ Provident  Funds     and Miscellaneous Provisions Act, 1952 not attracted.         Employees’      Provident Fund and Miscellaneous  Provisions     Act 1952: Section 12/Employees’Provident Fund Scheme, 1952.         Contributory  Provident Fund Scheme is in the nature  of     the  substitute for old age pension--Object of the  Act      ex-     plaines.

HEADNOTE:

The petitioners, employed in temporary capacity with the Oil  and Natural Gas Commission when it was a Department  of the  Government of India, were subsequently absorbed in  the said Commission when it was established as a statutory  body under  the  Oil and Natural Gas Commission  Act,  1959.  The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 was made applicable to the Commission. The  petitioners opted for Contributory Provident Fund and availed the  bene- fit.     The  petitioners  filed a writ petition  in  this  Court claiming the benefit of pension in addition to the Provident Fund contending that (i) under the relevant Rules  governing their service, they were entitled to pension on their  being made permanent and that the right to pension, 157 which was part of their service condition, was protected  by Section 13(1) of the Oil and Natural Gas Commission Act read with  Regulation 3(2) of the Oil and Natural Gas  Commission

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(Terms  and Conditions of Appointment and  Service)  Regula- tions  1975;  and (ii) In spite of the introduction  of  the Contributory  Provident Fund Scheme ’their right to  pension was preserved by Section 12 of the Provident Fund Act. Dismissing the writ petition, this Court,     HELD:  1. The scheme of Contributory Provident Fund,  by way of retiral benefit, envisaged by the Provident Fund Act, is in the nature of a substitute for old age pension because it was felt that in the prevailing conditions in India,  the institution  of a pension scheme could not be visualised  in the near future. It was not the intention of Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits. [165G-H; 166A]     2. Section 12 of the Provident Fund Act seeks to protect the wages of an employee to whom the scheme framed under the said  act  applies as well as the total quantum  of  certain specified  benefits to which he is entitled under the  terms of  his employment. It prohibits an employer from  reducing, whether directly or indirectly, the wages of an employee  to whom the Scheme applies or the total quantum of benefits  in the  nature of old age pension, gratuity, Provident Fund  or life  insurance to which the employee is entitled under  the terms of his employment express or implied. The said section proceeds on the basis that if an employee is entitled to any benefit in the nature of old age pension under the terms  of his  employment the said benefit would not be denied to  him on the application of the Scheme. [166A-C]     2.1  In the instant case, on the date of application  of the Provident Fund Scheme to the Oil and Natural Gas Commis- sion. the benefit of pension was not a part of the terms  of employment of the petitioners and they were not entitled  to receive pension on that date. Consequently, the  petitioners cannot invoke the provisions of Section 12 of the  Provident Fund Act. [166D]     Som  Prakash  Rekhi v. Union of India & Anr.,  [1981]  2 S.C.R. 111, held inapplicable.     3.  The petitioners were employed on temporary basis  at the time when the Commission was established as a  statutory body  under the Oil and Natural Gas Commission Act  "and  on that date they were not 158 entitled  to claim pension because under the relevant  Rules pension  was not payable to a person employed  on  temporary basis. The petitioners, therefore, cannot claim that on  the date  of  their  becoming the employees  of  the  Commission established under the Oil and Natural (;as Commission Act in 1959,  they had a right to pension which has been  protected under sub-section (1) of Section 13 and clause 12) of  Regu- lation 3 of the Regulations. [164A-B]     3.1  Under  the  relevant service  rules  applicable  to petitioners, they could either claim pension or the  benefit of the Contributory Provident Fund and they could not  avail both the benefits. Since the petitioners are entitled to the benefit of the Contributory Provident Fund under the  Provi- dent Fund Act and the Provident Fund Scheme and have availed the said benefit for the past 28 years, they should be taken to  have opted for said benefit and they cannot  invoke  the service rules with regard to pension and claim the right  to receive  pension as part of their conditions of  service.  I 164C -D]     3.2 The persons who were employed in temporary  capacity with  the Oil and Natural Gas Commission when it  was  being run as a Department of the Government of India prior to  the enactment of the Oil and Natural Gas Commission Act and  who were subsequently absorbed in the Commission, as established

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under the said Act, are not entitled to pension in  addition to  the  Provident Fund benefit to which they  are  entitled under the provisions of the Provident Fund Act. [167B-C]

JUDGMENT:

   ORIGINAL WRIT JURISDICTION: Writ Petition (Civil) No. 1152 of 1988. (Under Article 32 of the Constitution‘ of India).     M.K.  Ramamurthi,  R.C. Pathak,  Naresh  Mathut,  Sudhir Kumar and Ms. Baby Lal for the petitioners. B. Dutta, R.K. Joshi and S.K. Jain for the Respondents. The Judgment of the Court was delivered by     S.C.  AGRAWAL,  J. The only question  which  arises  for consideration in this writ petition, filed under Article  32 of the Constitution, is whether persons who were employed in temporary  capacity  with the Oil & Natural  Gas  Commission (hereinafter  referred to as ’the Commission’), when it  was being run as a Department of the 159 Government  of  India prior to the enactment of  the  Oil  & Natural Gas Commission Act, 1959 (hereinafter referred to as ’the  ONGC Act’) and who were subsequently absorbed  in  the Commission, as established under the said Act, are  entitled to  pension, in addition to the Provident Fund  benefits  to which they are entitled under the provisions of the  Employ- ees’ Provident Fund and Miscellaneous Provisions Act  (here- inafter referred to as the Provident Fund Act’).     The  Commission was initially formed as a Department  of the  Government  of  India and it continued to  be  so  till October  15,  1959, when the ONGC Act was  enacted  and  the Commission  was  established as a statutory body  under  the said  Act.  Section 13 of the ONGC Act makes  provision  for transfer of service of the existing employees to the Commis- sion  on the same tenure, remuneration and terms and  condi- tions  as  they would have held, if the Commission  had  not been established, until such tenure, remuneration and  terms and  conditions are duly altered by the Commission.  In  the proviso of Sub-Section (1) of Section 13 of the ONGC Act, it is further provided that the tenure, remuneration and  terms and conditions of service of any such employee shall not  be altered to his disadvantage without the previous approval of the Central Government. In exercise of the powers  conferred by  Section  32  of the ONGC Act the  Commission,  with  the previous  approval of the Central Government, has  made  the Oil  & Natural Gas Commission (Terms and Conditions  of  Ap- pointment  and Service) Regulations, 1975  (hereinafter  re- ferred to as the Regulations’). In clause 2(b) of Regulation 3, it has been provided that nothing in the Regulation shall operate to deprive any employee of any right or privilege to which he is entitled by the terms or conditions of  service, or  any  agreement, subsisting between such person  and  the Government.     By notification No. GSR 705, dated May 16, 1961,  Sched- ule  1 to the Provident Fund Act was amended so as  to  make the  provisions of the said Act applicable to  any  industry engaged  in  the  manufacture of petroleum  or  natural  gas exploration, prospecting, drilling or production with effect from  June  30, 1961. By another Notification No.  GSR  706, dated  May  16, 1961, issued under Section  1(3)(b)  of  the Provident Fund Act the provisions of the said Act were  made applicable  to  establishments  engaged in  the  storage  or transport  or  distribution of petroleum or natural  gas  or products of either petroleum or natural gas with effect from June  30,  1961. A corresponding amendment was made  in  the

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Employees’ Provident Fund Scheme, 1952 (hereinafter referred to as ’the Provident Fund Scheme’), by Notification dated 160 June  5,  1961, whereby Sub-Clause (xviii) was  inserted  in Clause (b) of sub-para (3) of para 1 of the said scheme  and thereby the Provident Fund Scheme was made applicable,  with effect from June 30, 1961, to factories relating to petrole- um  or  natural gas exploration,  prospecting,  drilling  or production and petroleum or natural gas refining and  estab- lishments  engaged in the storage or transport or  distribu- tion  of  petroleum  or natural gas or  products  of  either petroleum or natural gas covered by the notifications of the Government  of India in the Ministry of Labour  and  Employ- ment,  Nos. G.S.R. 705 and 706, dated May 16, 1961,  respec- tively.  As a result of the aforesaid amendments  introduced in the Provident Fund Act and the Provident Fund Scheme, the provisions of the Provident Fund Act and the Provident  Fund Scheme became applicable to the Commission with effect  from June 30, 1961.     The  petitioners  in this writ  petition  represent  the employees  who  were employed on temporary  basis  with  the Commission  prior to the enactment of the ONGC Act  and  who have been absorbed in the Commission after the enactment  of the  ONGC Act and the establishment of the Commission  is  a statutory  body. The case of the petitioners is  that  while they were employed in the Commission before the enactment of the  ONGC Act, they were entitled under the  relevant  rules governing  their  service, to pension on  their  being  made permanent and that the said right to pension, which was part of  their conditions of service, is protected under  Section 13(1)  of the ONGC Act. The petitioners have submitted  that persons  who were employed on temporary basis with the  Com- mission  prior  to the enactment of the ONGC  Act  and  were absorbed  in the Commission subsequent to the  enactment  of the  ONGC  Act are entitled to pension on  their  retirement irrespective of the fact that they are entitled to Provident fund benefits under the provisions of the Provident Fund Act and the Provident Fund Scheme.     The  writ petition has been contested by the  Commission and in the counter affidavit filed on behalf of the  Commis- sion  it  has  been stated that after  the  introduction  of Contributory  Provident Fund, in accordance with the  provi- sions  of  the  Provident Fund Act and  the  Provident  Fund Scheme,  the petitioners have been availing the benefits  of Contributory  Provident Fund and since the petitioners  have opted  for Contributory Provident Fund under  the  Provident Fund  Act  and the Provident Fund Scheme they  cannot  claim pension  in addition to Contributory Provident Fund. It  has been  submitted that, on the date of enactment of  the  ONGC Act, the petitioners were temporary 161 employees  and they were not entitled to pension  under  the relevant  service rules applicable to them  and,  therefore, they  are not entitled to pension on their retirement  after being absorbed in the Commission subsequent to the enactment of  the  ONGC Act. It has been further  submitted  that  the petitioners cannot claim a double benefit i.e., Contributory Provident  Fund  as  well as pension, and  that  they  could either  claim  Contributory Provident Fund or  pension,  and since  they  opted for Contributory Provident  Fund  on  the introduction  of  the Provident Fund Scheme  and  have  been availing  the  said benefit during the past 28  years,  they cannot be permitted to claim pension in addition to Contrib- utory Provident Fund.     Shri M.K. Ramamurthi, the learned counsel for the  peti-

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tioners,  has placed reliance on Sub-Section (1) of  Section 13  of  the ONGC Act and Clause (2) of Regulation 3  of  the Regulations which provide as under: "Section 13(1): Subject to the provisions of this Act, every person  employed  by the existing  organisation  immediately before the date of establishment of the Commission shall, on and  from  such date, become an employee of  the  Commission with  such designation as the Commission may  determine  and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and  condi- tions  as  he would have held the same on such date  if  the Commission had not been established and shall continue to do so  unless  and until his employment in  the  Commission  is terminated or until such tenure, remuneration and terms  and conditions are duly altered by the Commission: Provided that-- (a)  the  tenure, remuneration and terms and  conditions  of service  of  any  such person shall not be  altered  to  his disadvantage  without the previous approval of  the  Central Government; (b) any service rendered in the existing organisation by any such person shall be deemed to be service under the  Commis- sion; and (c) all persons employed by the Commission on the date of 162 its establishment, who, immediately before such date.  hold, in a permanent or quasi-permanent capacity, posts in connec- tion with the affairs of the Union or of any State, but  not posts  in  the existing organisation, shall  be  treated  as Government   servants  on  foreign  service  with  the  Com- mission." "Regulation 3(2): Nothing in these regulations shall operate to  deprive any employee of any right or privilege to  which he is entitled:-- (a) by or under any law for the time being in force; or (b) by the terms or conditions of service, or any agreement. subsisting between such person and the Government, or (c) by the terms of any agreement subsisting between him and the Commission at the commencement of these regulations."     The  submission  of Shri Ramamurthi is that in  view  of SubSection  (1) of Section 13 of the Act, the employees  who were  employed  in  the Commission  immediately  before  the establishment  of the Commission under the ONGC  Act  became employees  of the Commission and they are entitled  to  hold their  office  or service in the Commission  upon  the  same terms and conditions as they were applicable to them on  the date  of such establishment of the Commission and  they  are entitled  to continue to do so until such terms  and  condi- tions  are duly altered by the Commission and that any  such alteration  in the terms and conditions of service which  is to  their disadvantage could be made only with the  previous approval of the Central Government and the said right of the employees is also protected by Clause (2) of Regulation 3 of the  Regulations  which have been framed by  the  Commission with  the previous approval of the Central Government.  Shri Ramamurthi has urged that under the relevant Service  Rules, which  were applicable to the petitioners at the  time  when they  were absorbed in the service of the Commission on  the enactment of the ONGC Act, the petitioners, though temporary employees,  were  entitled to pension on  their  being  made permanent and that the said right of the petitioners,  being part  of their conditions of service, has been protected  by Sub-Section  (1) of Section 13 of the ONGC Act, as  well  as Clause (2) of Regulation 3 of the Regulations and it has not been taken away

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163 because the Central Government has not given its approval to the denial of the said right of the petitioners. In  support of  his aforesaid submissions, Shri Ramamurthi, has  invited our  attention to the provisions of Rule 13 of  the  Central Civil Services (Pension) Rules 1972 (hereinafter referred to as  ’the Pension Rules’), which deals with  commencement  of qualifying service and prescribes that qualifying service of a  government servant shall commence from the date he  takes charge of the post to which he is appointed either  substan- tively or in an officiating or temporary capacity,  provided that  officiating or temporary service is  followed  without interruption  by  substantive  appointment in  the  same  or another service or post.     The  Pension  Rules  were issued in 1972  and  were  not applicable at the time when the petitioners were absorbed in the  Commission on the enactment of the ONGC Act,  1959.  It is, however, not disputed that the provisions with regard to pension, as contained in the Civil Service Regulations which were applicable at that time, were not different from  those contained in the Pension Rules and pension was payable  only if the employment was substantive and permanent (Regulations 352,  362 and 368). Under the Civil Service Regulations,  an employee  who  was  initially engaged on  contract  and  was subsequently  appointed to the same or different post  in  a substantive capacity on pensionable basis without  interrup- tion  of  duty was allowed the option  of  surrendering  the Government  contribution to his Contributory Provident  Fund together  with  the interest thereon for the period  of  the contract  and  to  count one half of  the  contract  service towards  pension  (see:  Choudhari’s  compilation  of  Civil Service Regulations, 5th Edition, Volume I, pages  216-217). Similarly, in cases where a permanent Government servant was transferred to an autonomous organisation consequent on  the conversion  of  a Government Department into  such  a  body, there was Government order dated 5th November, 1964  (Annex- ure  III to the writ petition) which provided that the  Gov- ernment  servant would be given an option to  either  retain the pensionary benefit available to him under the Government Rules  or be governed by the Rules of the  autonomous  body. This option was also available to quasi permanent and tempo- rary employees after they had been confirmed in the  autono- mous body. In other words, a Government servant could either avail  pensionary  benefits or the benefit  of  Contributory Provident Fund, but he could not avail both the benefits. In the  Pension  Rules, there is an express provision  in  Rule 2(d) which prescribes that the said Rules shall not apply to persons entitled to the benefit of a Contributory  Provident Fund. 164     In  the present case, the petitioners were  employed  on temporary  basis  at  the  time  when  the  Commission   was established  as a statutory body under the ONGC Act  and  on that  date they were not entitled to claim  pension  because under the relevant Rules pension was not payable to a person employed  on  temporary basis. The  petitioners,  therefore, cannot claim that on the date of their becoming the  employ- ees  of  the Commission established under the  ONGC  Act  in 1959,  they had a fight to pension which has been  protected under Sub-Section (1) of Section 13 and Clause (2) of  Regu- lation  3  of the Regulations. The petitioners  cannot  also claim  protection of the aforesaid provisions on  the  basis that right to receive pension was part of their condition of service  on the date of their becoming the employees of  the Commission  under Sub-Section (1) of Section 13 of the  ONGC

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Act, in as much as under the relevant service rules applica- ble to them, they could either claim pension or the  benefit of the Contributory Provident Fund and they could not  avail both the benefits. Since the petitioners are entitled to the benefit of the Contributory Provident Fund under the  Provi- dent Fund Act and the Provident Fund Scheme and have availed the said benefit for the past 28 years, they should be taken to  have opted for said benefit and they cannot  invoke  the service rules with regard to pension and claim the right  to receive  pension as part of their conditions of service.  We are,  therefore,  unable to accept the  contention  of  Shri Ramamurthi,  ’based on the provisions of Sub-Section (1)  of Section 13 of the ONGC Act and Clause (2) of Regulation 3 of the Regulations, that the petitioners are entitled to  claim pension  in addition to the Provident Fund payable  to  them under the Provident Fund Act and the Provident Fund Scheme.     Shri  Ramamurthi,  has next contended that  in  view  of Section  -12 of Provident Fund Act, the right of  the  peti- tioners  to pension has been preserved and the  introduction of  the Contributory Provident Fund under the provisions  of the  Provident Fund Act and the Provident Fund  Scheme  does not  disentitle  the petitioners from  claiming  pension  to which  they  were entitled before the  introduction  of  the Contributory Provident Fund in the Commission. In support of the  aforesaid submission, Shri Ramamurthi has placed  reli- ance on the decision of this Court in Sorn Prakash Rekhi  v. Union of India & Another, [1981] 2 S.C.R. 111. Section 12 of the Provident Fund Act, provides as under: "No employer in relation to an establishment to which any 165 Scheme or the Insurance Scheme applies shall, by reason only of his liability for the payment of any contribution to  the Fund or the Insurance Fund or any charges under this Act  or the Scheme or the Insurance Scheme reduce, whether  directly or indirectly, the wages of any employee to whom the  Scheme or  the  Insurance Scheme applies or the  total  quantum  of benefits in the nature of old age pension, gratuity,  Provi- dent  Fund or life insurance to which the employee is  enti- tled under the terms of his employment, express or implied." The  said  provision in our view is not  applicable  in  the present  case. The Provident Fund Act has been enacted  with the object of providing social security to the employees  in factories and other establishments covered by the said  Act, after  their  retirement. In the Statement  of  Objects  and Reasons for the said enactment it was mentioned as under: "The question of making some provision for the future of the industrial worker after he retires, or for his dependents in case  of his early death, has been under  consideration  for some years. The ideal way would have been provisions through old  age  and survivors’ pensions as has been  done  in  the industrially  advanced  countries.  But  in  the  prevailing conditions  in  India. the institution of a  pension  scheme cannot be visualised in the near future. Another alternative may be for provision of gratuities after a prescribed period of  service. The main defect of a gratuity scheme,  however, is  that amount paid to a worker or his dependents would  be small, as the worker would not himself be making any contri- bution  to the fund. Taking into account the various  diffi- culties, financial and administrative, the most  appropriate course  appears  to  be the  institution,  compulsorily,  of Contributory Provident Fund in which both the worker and the employer  would  contribute. Apart  from  other  advantages, there is the obvious one of cultivating among the workers  a spirit of saving something regularly."     This indicates that the scheme of Contributory Provident

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Fund, by way of retiral benefit, envisaged by the  Provident Fund  Act,  is  in the nature of a substitute  for  old  age pension  because it was felt that in the  prevailing  condi- tions  in India, the institution of a pension  scheme  could not be visualised in the near future. It was not the  inten- tion of 166 Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits. Section  12 of  the Provident Fund Act seeks to protect the wages of  an employee  to whom the scheme framed under the said  Act  ap- plies  as  well as the total quantum  of  certain  specified benefits  to  which he is entitled under the  terms  of  his employment.  With that end in view, Section 12 prohibits  an employer from reducing, whether directly or indirectly,  the wages of an employee to whom the Scheme applies or the total quantum of benefits in the nature of old age pension, gratu- ity, Provident Fund or life insurance to which the  employee is  entitled  under the terms of his employment  express  or implied.  The said Section proceeds on the basis that if  an employee is entitled to any benefit in the nature of old age pension  under the terms of his employment the said  benefit would not be denied to him on the application of the Scheme. It is not the case of the petitioners that on June 30, 1961, when  the Provident Fund Scheme was made applicable  to  the Commission,  the petitioners had become permanent  and  were entitled  to pension. It cannot, therefore, be said that  on the date of the application of the Provident Fund Scheme  to the  Commissioner, the petitioners were entitled to  pension under the terms of their employment. They cannot, therefore, invoke  the provisions of Section 12 of the  Provident  Fund Act.     In  Sorn  Prakash  Rekhi v. Union of  India  &  Another, (supra)  on  which reliance has been placed  by  Shri  Rama- murthi,  the petitioner before this Court was employed as  a clerk  in Burmah Shell Oil Storage Ltd. The  undertaking  of that  company was statutorily acquired by the Government  of India under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, and subsequently the said undertaking  was vested  by  the Central Government in the  Bharat  Petroleum Corporation  Limited,  a Government Company. In  the  Burmah Shell,  there  was a voluntary retirement  scheme  in  force which was governed by the terms of a trust deed of 1950. The said petitioner was receiving pension under the said scheme. Certain  deductions were made from the pension paid  to  the petitioner  on  account  of Employees’  Provident  Fund  and Gratuity  paid to him. This Court held that in view of  Sec- tion 12 of the Provident Fund Act, such deductions were  not permissible and that the entire amount of pension should  be paid to the petitioner without deduction. This decision  has no application to the instant case because in that case  the petitioner before this Court was entitled to receive pension under  the voluntary retirement scheme at the time when  the provisions  of the Provident Fund Act became  applicable  to Burmah  Shell and the right to receive pension was  part  of the  terms  of  employment of the said  petitioner.  In  the present case it cannot be said 167 that  on the date of the application of the  Provident  Fund Scheme  to the Commission on June 30, 1961, the  petitioners were entitled to receive pension and the benefit of  pension was a part of the terms of employment of the petitioners  on that date.     For  the reasons mentioned above, it must be  held  that the persons who were employed in temporary capacity with the

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Commission  when  it was being run as a  Department  of  the Government  of India prior to the enactment of the ONGC  Act and  who  were subsequently absorbed in the  Commission,  as established under the said Act, are not entitled to  pension in addition to the Provident Fund benefits to which they are entitled under the provisions of the Provident Fund Act. The writ  petition, therefore, fails and it is accordingly  dis- missed. There will be no order as to costs. T.N.A.                                  Petition dismissed. 168