IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NOs.28009-28011 OF 2015 (L-TER) BETWEEN 1. SMT. ASHA W/O LATE B V SRINIVASAN AGED ABOUT 44 YEARS, RESIDING AT NO. 60, MAJEEDI ROAD, K R PURAM, BENGALURU 560036 2. SMT. SWATHI D/O LATE B V SRINIVASAN, AGED ABOUT 23 YEARS, RESIDING AT NO.60, MAJEEDI ROAD, K R PURAM, BENGALURU 560036 3. MASTER SURESH S/O LATE B V SRINIVASAN, AGED ABOUT 15 YEARS, RESIDING AT NO.60, MAJEEDI ROAD, K R PURAM, BENGALURU 560036 MINOR REPRRESENTED BY NATURAL GUARDIAN MOTHER I.E. PETITIONER NO.1 ... PETITIONERS (BY SRI K B NARAYANA SWAMY, ADVOCATE) AND 1. M/S. HINDUSTHAN PETROLEUM CORPORATION LTD REP BY ITS MANAGING DIRECTOR, REGD OFFICE NO. 17, JAMSHEDJI TATA ROAD, MUMBAI 400020 2. THE DEPUTY GENERAL MANAGER HINDUSTHAN PETROLEUM CORPORATION LTD LPG (NWZ) AHMEDABAD 380001 GUJARATH 3. THE PLANT MANAGER HINDUSTHAN PETROLEUM CORPORATION LTD , LPG PLANT, AJMER 305001 RAJASTHAN 4. THE SENIOR REGIONAL MANAGER HINDUSTHAN PETROLEUM CORPORATION LTD, REGIONAL OFFICE, NO.77, OLD MADRAS ROAD, DOORVANINAGAR, K R PURAM, BENGALURU 560016 5. LIFE INSURANCE CORPORATION OF INDIA REPRESENTED BY ITS MANAGING DIRECTOR YOGA KSHEMA BUILDING MUMBAI PIN CODE – 400 021 6. GENERAL MANAGER LIFE INSURANCE CORPORATION OF INDIA P AND G. S. DEPARTMENT MUMBAI, DIVISION-I, 4TH FLOOR, EAST WING YOGA KSHEMA BUILDING MUMBAI PIN CODE- 400 021.
7. M/S. HINDUSTAN PETROLEUM CORPORATION LTD., EMPLOYEES SUPERANNUATION BENEFIT FUND SCHEME, REPRESENTED BY THE DEPUTY GENERAL MANAGER (FINANCE) NO.1, JAMSHEDJI TATA ROAD, MUMBAI PIN CODE – 400 020.
(BY SRI C K SUBRAMANYA, ADVOCATE FOR ... RESPONDENTS SRI B C PRABHAKAR, ADVOCATE FOR R1 & R2 SRI M S NARAYAN, ADVOCATE FOR R4 SRI H S LINGARAJ, ADVOCATE FOR R5 & R6 R3 & R7 ARE SERVED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO THE CASE OF THE PETITIONERS AND GRANT THEM THE FOLLOWING RELIEFS: a) DIRECT THE RESPONDENT TO PAY THE FAMILY PENSION TO THE PETITIONERS EVER SINCE THE DATE OF DEATH I.E., 11.12.2011 TILL DATE AND TO CONTINUE TO PAY THE SAME ON MONTH TO MONTH BASIS TO MEET THE ENDS OF JUSCICE AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
The petitioner No.1 is the wife of late Sri B.V.Srinivasan and petitioners No.2 and 3 are his children. Late Sri B.V.Srinivasan was appointed as a general mazdoor with the respondent Hindusthan Petroleum Corporation Ltd., (hereinafter referred to as ‘HPCL’). By order dated 21.05.1992 the workman was dismissed from service. The dispute raised by the workman was referred to the Central Government Industrial Tribunal cum Labour Court at Bengaluru. Finally the Tribunal passed an award on 23.06.2004 directing the HPCL to reinstate the workman along with continuity of service and 25% back wages with all other consequential benefits. The award was challenged by HPCL before this Court, appealed before the Division Bench and tested the Hon’ble Apex Court unsuccessfully. Finally, the workman was reinstated on 13.11.2010. It is another matter that the workman was not reinstated at Bengaluru but at Ajmer, Rajasthan, where he breathed his last on 11.12.2011, in harness.
2. The grievance of the petitioners is manifold. It is contended that HPCL did not pay 25% backwages by properly calculating the entitlement of the workman. It is admitted that HPCL paid the backwages but the calculation is disputed. It is also contended that the award was that the workman has to be reinstated along with continuity of service and all other consequential benefits, but HPCL has not taken into consideration the increments granted to similarly situated workers, pay revisions and settlement benefits and therefore the full backwages that the workman was entitled from one month from the publication of the award i.e. 01.08.2004 to 13.11.2010 when the workman was reinstated was also required to be calculated taking into consideration the pay revisions, settlement etc., as noted above. It is also contended that even the salary that was paid to the workmen after reinstatement should have been in terms of the above calculation and therefore short payment of the salary is alleged. The petitioners claim the arrears is also to be paid by computing the salary in accordance with law. The petitioners contend that gratuity, though paid to the petitioners, since the salary itself was not paid in accordance with law, the computation of gratuity also fell in error and therefore same has to be recalculated and difference in gratuity is required to be paid to the petitioner along with interest. The last aspect is regarding payment of pension. It is contended by the learned counsel for the petitioner that the respondent-HPCL has admitted in its statement of objection that the company purchased annuities from the respondent - Life Insurance Corporation ((hereinafter referred to as ‘HPCL’) and therefore pension should have been given to the petitioners from the date of the death of the workman. Whereas, the respondent LIC has remitted monthly annuity commencing from 01.04.2016 to the bank account of the petitioner No.1 herein. It is also submitted that LIC has been remitting Rs.6,513/-, based on the last drawn salary of the workman. However, since HPCL has not taken into account the pay revision and settlement benefits as stated above, and since the petitioners are seeking re-fixation of the salary and payment of arrears, the respondent LIC is also required to take into account the last drawn salary on the basis of the corrections to be made by the HPCL.
3. Learned counsel for the respondent – HPCL, however contends that the petitioners have approached this Court after inordinate delay. It is therefore contended that this Court should take into consideration the delay on the part of the petitioners before fastening the liability on HPCL to pay interest. It is also submitted that the petitioners should have approached the competent authority for payment of gratuity in accordance with law. It was also contended that the petitioners should have filed an application under Section 33(c) (i) or (ii) of the I.D. Act and it was not open for the petitioners to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, since there was an alternative and efficacious remedy available to the petitioners.
4. Learned counsel for the respondent - LIC, while taking this Court through the statement of objections, submitted that LIC received a claim intimation and relevant claim papers from the trustees on 18.10.2016 and on receipt of the claim the papers were duly processed. It is further submitted that as instructed by the trustees the corpus was taken as Rs.16,21,380/- and as per the claim form LIC paid commuted value of Rs.5,40,460/- under voucher No.14889 dated 12.01.2016 after applying annuity rate prevailing as on 31.03.2016. Since the petitioner admitted that from 01.04.2016 the annuity/pension is being deposited into account of the petitioner No.1 herein, the other contentions raised by the LIC in its statement need not be traversed. On the question of the payment of pension from the date of death of the workman, it has been stated in the objection of LIC that it would act and would follow the directions given by the trustees and terms and conditions governing the scheme. Therefore, if the trustees advise the LIC with the required supporting documents that the petitioners are eligible for pension from the date of the death of the workman i.e., 11.12.2011, the same will be considered in accordance with law. At this juncture, learned counsel for the respondent HPCL submits that since the workman was not a member of the scheme and he was not contributing, the petitioners are not eligible for receiving pension. It is also submitted that the annuity/pension which is now being given to the petitioners is only out of generosity of the respondent/HPCL.
5. Heard the learned counsels and perused the writ papers.
6. After hearing the learned counsels and perusing the writ papers, this Court is of the opinion that there is no dispute as regards the eligibility of the workman for receiving 25% backwages from the date of termination till the date of publication of the award. Similarly there is no dispute that the workman was also eligible for full backwages from 01.08.2004 to 13.11.2010 i.e., from the date of publication of the award till the date of reinstatement, with continuity of service and consequential benefits. The respondent HPCL was required to calculate the backwages and the salary of the workman by taking into consideration the pay revisions, settlement benefits, increments, which other similarly placed workman was entitled to. In this regard, the petitioners have placed certain documents on record which would substantiate that after the workman was reinstated the salary given to the workman was not equal to the salary of similarly placed workmen. In this regard, it is seen that the basic salary of a similarly placed workman was much higher than what was given to the workman after the reinstatement. However, these are aspects which the respondent HPCL will have to re-look and re-determine in accordance with law. The documents produced by the respondent No.5 itself would substantiate that annual increments which the workman was entitled to was not given to the workman.
7. In the light of above, this Court is of the opinion that the petitioners have made out a prima-facie case and the respondent HPCL is required to bestow its consideration on all the averments that are made by the petitioners herein. It is seen from the records that a legal notice dated 03.11.2014 was caused by the petitioners, and in the said notice all the contentions have been raised. The respondent HPCL is therefore directed to reconsider the averments made in the legal notice dated 03.11.2014 at Annexure-E to this writ petition and pass orders on each and every aspect raised in the legal notice. This would cover all the reliefs sought by the petitioners in this writ petition. Some of the other aspects that were left out has been covered in the rejoinder filed by the petitioners. Therefore, the respondent HPCL is also required to reconsider the prayer made by the petitioners in terms of the legal notice dated 03.11.2014 as well as the rejoinder dated 24.01.2019 filed by the petitioners herein.
8. In the light of the above, the petitions are partly allowed with a specific direction to the respondents to consider the representation of the petitioners in the form of legal notice dated 03.11.2014 and rejoinder statement dated 24.01.2019 and pass orders in accordance with law, as expeditiously as possible and at any rate within a period of two months from the date of receipt of copy of this order. It is also made clear that as regards the pension, the respondent HPCL, which is also a part of the Trustee is required to reconsider the claim of the petitioners as regards the entitlement of pension of the workman, re-determine and advice LIC in terms of the re-fixation of the salary of the workman, as stated above.
The petitions are accordingly disposed of.
KLY/ SD/-
JUDGE