t Petition Civil No 1152 of 1988
Under Article 32 of the Constitution of India
MK Ramamurthi RC Pathak Naresh Mathut Sudhir Kumar and Ms Baby Lal for the petitioners
B Dutta RK Joshi and SK Jain for the Respondents
The Judgment of the Court was delivered by SC 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 2b 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 13b 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 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
GSR 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 131 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 ie 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 MK Ramamurthi the learned counsel for the peti 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 131 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 32 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 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 2d 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 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 vs Union of India  Another  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 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 vs 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 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
TNA Petition dismissed


Summary:
The respondent who had filed a complaint in respect of an alleged offence under section 500 of the Indian Penal Code in the Court of the Additional District Magistrate of Indore made a number of aspersions against the Magistrate in an application I74 1368 made to him under section 528 of the Code of Criminal Procedure two of which were of a serious character
It was alleged that the Magistrate was a party to a conspiracy with certain others the object of which was two implicate the complainant in a false case of theft and that a lawyer appearing for the accused persons to whom the Magistrate was favourably inclined had declared that he had paid a sum of Rs 500 to the Magistrate
Those allegations were later on repeated in an affidavit
The Magistrate reported the matter to the Registrar of the High Court for necessary action
The High Court called upon the respondent to show cause why he should not be proceeded against in contempt under the 
The judges of the Division Bench who heard the matter without going into the merits of the case held that Prima facie the offence was one of intentional insult under section 228 of the lndian Penal Code and consequently the jurisdiction of the High Court was ousted under section 32 Of the 
Held that the High Court had taken an erroneous view of the matter and its order must be set aside
The mere existence of an element of insult in the alleged act of contempt was not conclusive as to the applicability of section 228 Of the Indian Penal Code so as to oust the jurisdiction of the High Court under section 32 of the 
While Judges and Courts are not beyond criticism and there are well recognised limits to such criticism and contempt proceedings are not meant to shield judges from personal insults there can be no question that where defamatory aspersions are cast upon the character and ability of individual judges or of Courts in general which in substance scandalise the Court itself and have the effect of undermining the confidence of the public in it and thus hinder due administration of justice the contempt is of a kind which exceeds the limits of section 228 of the Indian Penal Code
The true test therefore is is the act complained of an offence under section 228 of the Indian Penal Code or something more than that  If it is something more the jurisdiction of the High Court is not ousted by section 32 Of the 
So judged there could be no doubt that the aspersions cast in the present case amounted to scandalising the court itself and were no mere personal insults and the High Court had jurisdiction to take cognizance of the same
Bathina Ramkrishna Reddy vs The State of Madras 1952 section C R 425 and Brahma Prakash Shayma vs The State of Uttar Pradesh  relied on
Ambard vs Attorney Geneyal for Trinidad and Tobago  referred to
1369 The question whether an insult offered to a public servant is intentional so as to attract section 228 of the Indian Penal Code has to be decided on the facts of each particular case and it is neither necessary nor advisable to Jay down any hard and fast rule
Narotam Das vs Emperor AIR 1943 All 97 Queen Empress vs Abdullah Khan and Emperor vs Murli Dhar All 284 considered