Case: Committee For Protection Of Rights Of Ongcemployees And Ors Vs. Oil And Natural Gas Commission Through Itschairman--Tel Bha

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 reliance on the decision of this Court in Som Prakash Rekhi v. Union of India ( 1981 (1) SCC 449 11. Section 12 of the Provident fund Act, provides as under: "12. No employer in relation to an establishment to which any 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, provident fund or life insurance to which the employee is entitled under the terms of his employment, express or implied." * 13. 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 dependants 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 bear 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 the amount paid to a worker or his dependants would be small, as the worker would not himself be making any contribution to the fund. Taking into account the various difficulties, 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." * 14. 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 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. 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. With the 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, 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. 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 Commission, 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. 15. In Som Prakash Rekhi v. Union of India ( 1981 (1) SCC 449 on which reliance has been placed by Shri Ramamurthi, 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 petitions 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 Section 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 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. 16.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 employees of the Commission established under the ONGC Act in 1959, they had a right to pension which has been protected under sub-section (1) of Section 13 and clause (2) of Regulation 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, inasmuch as under the relevant service rules applicable 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 Provident 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 FundIn Som Prakash Rekhi v. Union of India ( 1981 (1) SCC 449  on which reliance has been placed by Shri Ramamurthi, 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 underthe 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 petitions 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 Section 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 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