Decided on February 22,1968

Namburnadi Tea Co. Ltd. Appellant
Workmen Of Namburnadi Tea Estate Respondents


P.K. Goswami, J. - (1.)THIS application under Article 226 of the Constitution is directed against ah award of the Presiding Officer, Labour Court, Assam, to whom the following issues were referred under Section 10 of the Industrial Disputes Act for adjudication:
1. (a) Whether the Management of Namburnadi T.E. is justified in changing the pension scheme which provided for life pension to restored employees?

(b) If not, whether Sri H.C. Kanwar, who had retired and given pension for 5 years is entitled to life pension?

(2.)BRIEFLY it -appears that Sri H.C. Kanwar had put in about 36 years of service under, the Company and retired on 31st December, 1958. He was granted by the Company a pension of Rs. 93.95."per month for five years and Rs. 3,000 as commutation pension. It is stated that prior to Sri Kanwar's retirement, the Company's Managing Agents, Messrs. Shaw Wallace and Company, Ltd., relinquished their office and the management devolved on the Board of Directors of this Company who are continuing since then. It is also not denied that the employees were getting their salaries, allowances and enjoying other facilities as before. It is not pleaded by the management that the conditions of service of the existing staff on the date of transfer had changed on account of the change of Managing Agency. That being the position, the point that arises for consideration is whether there is any scheme in force in the Company for payment of pension to its employees on retirement.
This question about the existence of a scheme had to be considered in the light of the oral and documentary evidence which was led before the Labour Court and the conclusion arrived at by the Court would be a finding of fact. The Labour Court after examining the evidence of the witnesses for the management as well as for the workmen and considering the documents produced, particularly Annexures G and K to the petition, being the two circulars dated 14th July, 1947 and 10th June, 1950, respectively, issued by Messrs. Shaw Wallace and Co., Ltd., came to the conclusion that there was a scheme of pension in operation at the time of transfer. Annexure G is the original scheme of the Company and by Annexure K the same was modified to a certain extent. This finding of fact about the existence of the scheme cannot be interfered with in an application under Article 226 of the Constitution. That being the position, Mr. Ghose, the learned Counsel for the management, contended that Once the employee has accepted the pension, he is estopped from questioning the same before, the Court. Unfortunately, however, the employees who are pitched against the management, are not in an equal position in bargaining. It is, therefore, open to the Union, who takes if" the cause of the employees to raise the dispute" by way of collective bargaining on their behalf. No question of estoppel arises in a case of this description. The argument does not appear to have been raised even before the Court below. In our considered -opinion, this submission has no substance.

(3.)NEXT , therefore, remains the question whether on the schemes which are now before the Court, namely, Annexures -'G' and 'K' one can safely conclude that there was a pension scheme for life. Mr. Ghose contends that there is no mention in any of these schemes that the pension was available for life. He contends that a grant of pension was a matter of discretion for the Company and this has been mentioned even in Annexure 'G' dated 14th' July, 1947. We are not satisfied that after the modified scheme has been put in operation in 1950 there was anything left with the management to refuse pension as a condition of service to the retired employees in the Company. After the scheme has been brought into force, it was no longer a matter of county and the scheme has to be enforced. There is nothing in the scheme to indicate that the pension was to be allowed for a limited period.

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