- (1.) THE present originating summons raises certain questions of interpretation scheme as provided under Rule 238 of the Bombay High Court (Original Side) Rules. Some of the brief facts of the present case are as under:
(2.) THE company known as IBM World Trade Corporation (hereinafter referred to as "the Company") constituted a trust known as IBM World Trade Corporation India Superannuation Scheme Trust. The scheme was constituted for welfare and benefit of the employees of the Company. The trust was executed on 10.3.70. The essential object of the trust was to establish a pension scheme for the benefit of the employees. The company was contributing towards the said corpus of the trust for conferring the benefits of pension under the scheme to the employees. The said deed of trust was executed on 10.3.70 and the supplemental Deed of Trust was executed on 27.10.77. Some of the clauses of the deed of trust which are relevant for the purpose of interpretation of the questions of law framed before me are briefly set out hereunder: "3. The Trusts declared by this Trust Deed shall be irrevocable and is subject to the law for the time being in force in India relating to Superannuation Funds." "7. The sums in cash and other assets retained by the Trustees shall constitute the funds of the Scheme and the Trustees shall hold said funds upon such trusts and with and subject to such powers and provisions as are or shall be contained in these presents as the Rules for the time being in force to the intent that the said funds shall be established for the benefit of the Members as defined by the Rules. No money belonging to the Fund shall be receivable by the Company under any circumstances nor shall the Company have any lien or charge on the funds." "31. The Trusts hereof shall be determined in the following events: (a) When the purpose for which the Scheme was established has been accomplished. (b) The Company resolves that the Scheme shall be terminated. This clause shall be subject to the limitations provided in clauses 32 and 33." "32(a). It shall be impossible by operation of the Scheme, by natural termination thereof, by power of revocation, or amendment, by the happening of any contingency, by collateral arrangement, or by any other means for any part of the corpus or income of the Fund to be used for or diverted to purposes other than the exclusive benefit of Member, retired Members, and their dependents. (b) Notwithstanding any provision herein to the contrary, during the first ten years after the effective date hereof, the benefit provided by the Company's contributions for Members whose annual benefit provided by such contributions will exceed Rs.11,350.00 but applicable only to the 25 higher-paid employees who are not Members at that time but may later become Members, shall be subject to the following conditions: (1) Such benefits shall be paid in full which have been provided by Company Contributions not exceeding the larger of the following amounts: (i) Rs.150,000.00 (ii) A sum computed by multiplying the number of years since the effective date hereof by 20% on the first Rs.375,000.00 of the Member's average annual salary paid in the last five years. (2) If the Scheme is wound up or the full current costs thereof have not been met at any time within ten years after such effective date, the benefits which any of the Members described in paragraph (b) of this clause may receive from the Company's contribution shall not exceed the benefits set forth in (1) of this clause. (3) If a Member described in paragraph (b) of this Rule leaves the service of the Company for reasons other than retirement, when the full current costs have been met, the benefits which he may receive from the Company's Contributions shall not at any time within the first ten years after the effective date exceed the benefits set forth in (1) of this clause. (4) If at the end of the first ten years the full current costs are not met, the limitations will continue until the current costs are met for the first time." "33(a). The Employer may, at any time, on giving seven days' notice in writing to the Trustees, cause contributions to the Scheme cease and, on such notice being given by the Employer, the benefits which have accrued prior to the effective date of such discontinuance of Company contributions are non-forfeitable to the extent then funded. (b) If the Scheme shall be terminated, the benefits which have accrued prior to the date of termination are non-forfeitable to the extent then funded. (c) Subject to the approval of the Commissioner of Income Tax, if the Scheme is terminated or in the event of complete discontinuance of Company contributions, any excess which shall remain in the Scheme, after all liabilities have been satisfied or fully provided for, shall be allocated to the Trustees for the purpose of distribution among the members in the proportion that each member's accrued benefits bears to the total accrued benefits of all members of the Scheme at the date the Scheme is terminated or at the effective date of the complete discontinuance of Company contributions. (d) Subject to the approval of the Commissioner of Income Tax, in the event of termination of the Scheme, the Trustees may make such arrangements, including the establishment of a new Trust, or enter into such agreements as they in their uncontrolled discretion shall deem fit for the distribution to the members of accrued benefits and any excess which may be allocated to the members." Sometime in or about 1973 an act known as Foreign Exchange Regulation Act, 1973 was enacted by the Parliament. Under the provisions of the said Act foreign companies were put under certain restrictions and curbs were imposed on their activities in India. In view of the aforesaid provisions, the company decided to wind up its operation in India. Thus, it became necessary that the employees of the said company were required to be given either retrenchment or voluntary retirement. In view thereof, company prepared a scheme known as Special Opportunity Program for its employees in the month of November 1996 and under the said scheme it was provided that those employees of the company who desired voluntarily to leave employment of the company could do so on receiving a special compensation package. In November 1977 another such package was formulated and the said plan was made applicable to all the employees of the company who would leave the services of the company as on 31.5.78.
(3.) UNDER Clause 33(a) of the said deed of trust, it was interalia provided that the employer i.e. the Company after giving requisite notice in writing to the plaintiffs, ceased contributions to the trust. On such notice being given the said scheme will be wound up and discontinued subject to further terms and conditions contemplated under the said scheme. In view thereof, on 30.11.77, the company exercised their right to stop the contribution to the said scheme and they ceased to contribute to the said trust. In view of the aforesaid act on the part of the company in effect the said trust ceased to continue and whatever amount available in the trust as corpus of the said trust was required to be distributed among the beneficiaries. On 9.1.78 the plaintiff addressed a letter to all eligible members and/or beneficiaries of their entitlement amount from the said fund. The company had carried out their own computations of the entitlement of the beneficiaries and they called upon each of them to collect the said amount from the trust. In view of the complete discontinuity of the scheme by the company certain disputes arose and earlier an Originating Summons was moved by the trustees being Originating Summons bearing No.105 of 1979 in Suit No.317 of 1979 in this Hon'ble Court. By an order dt.18.12.80, this Hon'ble Court answered the said questions raised in the said Originating Summons and accordingly disposed of the same.;