:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.238 OF 1996 Hindustan Petroleum Corporation Ltd. a statutory corporation, having its registered office at 17, Jamshedji Tatas Road, Bombay-400 020. ..Appellant. Vs. Shashikant Gajanan Dighe of Bombay, Indian Inhabitant, residing at Bakul Sabha Niwas, 216, Lallubhai Park Road, Andheri(W), Bombay 400 058. ..Respondent. Mr. Minoo Siodia alongwith Ms. Deepali Thakor i/by Rustamji & Ginwala for the Appellants. CORAM : R.S. MOHITE, J. DATE : 30th April,2008. ORAL JUDGMENT : 1. This is the first appeal filed by Hindustan Petroleum Corporation Ltd. (thereinafter referred to as the "Defendant" against one of their employee by name Shashikant Gajanan Dighe (hereinafter referred to as the "Plaintiff" ) challenging the judgment and order dated 30.1.1996 passed by City Civil Court, Bombay. 2. The brief facts of the case were as under. a) The plaintiff filed a civil suit bearing S.C.Suit No.7699 of 1988 in the City Civil Court for recovery of transport allowance in the sum of :2: Rs.33.350.45ps. with further interest at the rate of 15% p.a. on Rs.29,224.00. In his plaint the plaintiff averred that he was initially an employee with Caltex India Limited. On 7.7.1980 Caltex India Ltd. was merged with the defendant and the services of the former employees of Caltex India Ltd. were transferred to the defendant company. The former employees of Caltex India Ltd. sought protection of the conditions of their service after merger and in this view of the matter, a letter dated 7.7.1980 was issued rationalising and regularizing the conditions applicable to the former Caltex employees. The plaintiff continued to get the benefits of the rationalisation letter by getting transport facility from his residence to the place of work and reimbursement to the extent of Rs.42/- in case the company transport was not available while he was working in the new company. That, on 6.12.1985, he was transferred to Sewree with effect from 7.12.1995. However, at Sewree no transport facility was provided to pick up the plaintiff from his residence to the place of work and vice versa. He made a representation to his new employer under Clause 11.4 of the rationalisation letter dated 7.7.1980 and claimed transport allowance instead of reimbursement in his letter. This was denied. In the circumstances, the plaintiff filed a suit raising the claim as stated hereinabove. b) In this suit, on behalf of the defendant a :3: written statement came to be filed on 8.8.1989. In the written statement, it was contended that at the time of rationalization of service conditions in 1980 the plaintiff was working at Hay Bunder installation. At this installation, transport facility was provided by the defendant and the plaintiff continued to enjoy the same transport facility as per clause 11.4. The plaintiff was reimbursed expenses incurred on transport from residence to the installation subject to a maximum of Rs.42/- per day in the event of non availability/break down of transport vehicle. The defendant denied that the plaintiff was ever paid transport allowance of Rs.42/- per day as alleged. It was stated that with effect from 7.12.1985 the plaintiff was promoted and posted at Sewree. At Sewree there was no transport/pick up facility and hence, question of providing transport facility at Sewree to the plaintiff did not arise at all. That, the defendant was not under any obligation to provide transport facility to the plaintiff wherever he is posted. That, he was not entitled to any transport allowance and therefore, he was not paid any allowance as claimed. 3. The short questions that arises in this case can be summarised as follows: a) That while the plaintiff was working in Caltex India Ltd. was he entitled to any :4: transport allowance from his residence to the place of work and back? b) If he was so entitled, was his service conditions continued or was he entitled to such allowance under any new service condition? 4. On behalf of the defendant, inter alia in support of their contentions that Caltex employees were not entitled to conveyance allowance, a Supervisor’s Hand Book came to be produced and was marked as Exe.2.This document governed the services of the plaintiff prior to the amalgamation of Caltex with the defendant. The document is of July, 1976 and therefore, clearly prior to the point of time to the amalgamation. Clause C(2)(b) of this document is relevant for the purpose of deciding the first issue raised herringbone and was in the following terms. 2. All other management employees are : a) -------- b) Not eligible for reimbursement of conveyance expenses for travel to and from place of work for: (i) Regular work in headquarter town. :5: (ii) Temporary or relief assignment in headquarter town. 5. When the plaintiff stepped into the witness box he was confronted with this document which pertained to his service conditions in Caltex. In reply he stated as follows: . I am not aware that the services with Caltex were regulated by Supervisor’s handbook. It is possible that the rules governing the service conditions of officers provided that no transport allowance was payable to officer for travel from residence to the place of work because transport was being provided to all officers. Later on, in the cross examination the plaintiff further admitted as under. . The contention of the Hindustan Petroleum that under the rationalisation letter the plaintiff was not entitled to transport after posting at Sewree is correct but we being Caltex employees ought to have provided transport (SIC), no transport facility was provided after being posted at Sewree. 6. The Trial Court relied upon Clause 11.4 of the Annexure being Annexure II to the letter of rationalisation dated 7.7.1980 to decree the plaintiff’s :6: claim. This Part-II did not relate to the past service benefits which were specified in Annexure Part-I. Part-II gave details of the Rationalisation- salary scales, allowances, perquisites, retirement benefits etc. The proposal of this rationalisation letter dated 7.7.1980 was accepted by the plaintiff under his signature dated 18.8.1980. The aforesaid clause 11.4 was in the following terms. "Transport facility provided to Visakh Refinery Officers for conveyance from Waltair Park to Refinery and at some marketing installations will continue for officers who do not take benefit of reimbursement for car/scooter expenses". 7. The aforesaid clause 11.4 pertains to continuation of an existing benefit. It is admitted by the plaintiff that when he joined at Sewree, there was no transport facility existing there. He examined a witness by name Narendra Bhaskar Kanekar who stated that at the time of merger he was working at Sewree along with five to six Caltex officers. There was transport facility between residence to office. On the days when the transport was not available, reimbursement of taxi fare was being made in addition to the usual pay. In his cross examination, he however, admitted that he was not paid any transport allowance while he was in :7: service. Even after merger the defendant did not pay him any transport allowance. He claimed that he was not aware as to whether there was any written prohibition for payment of taxi fare as reimbursement. He admitted that it was a practice which was followed and he used to get the reimbursement and therefore, he did not enquire under what rule the same was being paid to him. He claimed to have passed vouchers of erstwhile Caltex officer in the capacity as Accountant but admitted that even though he passed vouchers but he could not say as to under which provision the vouchers were passed. He admitted that in the Supervisor’s Hand Book there was no provision for grant of reimbursement. He admitted that he did not have any document to corroborate having received any such reimbursement. 8. Taking into account the aforesaid evidence, it is clear that the plaintiff being the Caltex employee was governed by the Supervisor’s Hand Book which categorically disentitled him to claim conveyance allowance and to claim reimbursement of conveyance expenses for travel from residence and office. When he was confronted with this service condition, the plaintiff gave evasive answers. This aspect is completely missed by the Trial Court. Apart from this, so far as this rationalisation letter dated 7.7.1980 is concerned, the same was accepted by the plaintiff on 18.8.1980 and in my view Clause 11.4 did not confer any :8: additional service benefit on him. When he signed that clause he was working at Hey bunder and was given necessary facility. The plaintiff however, has failed to prove that there was such facility at Sewree. The evidence of this witness who is his personal friend was not supported by any voucher or document. He has admitted that when he joined at Sewree, no transport facility was available to him. 9. Taking into consideration all these facts, I am of the view that the Trial Court erred in decreeing the plaintiff’s suit. Appeal is therefore, allowed. The impugned judgment and decree is set aside and the suit of the plaintiff is dismissed. There will be however, no order as to costs. (R. S. MOHITE, J.)