- (1.) Under the Burmah Shell (Acquisition of Undertakings in India) Act 2 of 1976, (hereinafter referred to as the 'Act'), the Union of India acquired the right, title and interest of Burmah Shell Oil Storage and Distributing Company of India Limited (hereinafter referred to as Burmah Shell) in relation to its undertakings in India. Sections 3, 4 and 9 of the Act are relevant. Under S. 3 the right, title and interest of Burmah Shell in relation to its undertakings in India stood transferred and became vested in the Central Government. In terms of S. 4, the assets and liabilites were taken over by the Government of India. Under S. 9 persons employed under Burmah Shell came under the employment of the Government company known as Bharat Petroleum Corporation Limited (respondent No. 1 herein). Section 10(1) provides thus :- "Where a provident, superannuation, welfare or other fund has been established by Burmah Shell for the benefit of the persons employed by it in connection with its undertakings in India, the monies relatable to the employees- (i) whose services are transferred by or under this Act to the Central Government or the Government company; or (ii) who are in receipt of pension or other pensionary benefits immediately before the appointed day, Shall, out of the monies standing on that day to the credit of such provident, superranuation, welfare or other fund stand transferred to and vested in, the Central Government or the Government company, as the case may be, free from any trust that may have been constituted by Burmah Shell in respect thereof." The detailed provisions for administration of the fund are contained in that section.
(2.) This petition under Art. 32 of the Constitution is by the erstwhile Burmah Shell Management Staff Pensioners who claim two reliefs :- (1) Extension of the benefit of restoration of commuted pension after the period of 15 years from the date of commutation as decided by this Court in the case of Common Cause v. Union of India AIR 1987 SC 210 and (2) Adequate escalation in the pension keeping in view the loss of purchasing power of the rupee and the general rise in the cost of living.
(3.) In answer to the rule nisi, the respondent made its return by contending that the pension scheme of the first respondent is a funded scheme. The decision of this Court in the case of Common Cause rendered in respect of Government servants, both of civil and defence services, cannot be extended to a public sector undertaking. The pension scheme of Burmah Shell was set up by Non-Contributory Pension Fund by a Trust Deed in December, 1950, but effective from 1st January, 1947, of which both the management staff as also the clerical staff were members. This Court on 13th of November, 1987, referred two questions arising for determination for the opinion of Mr. D. K. Lodaya, Chief Actuary of the Life Insurance Corporation of India at Bombay, with the consent of parties and the two questions referred are :- (1) Is the pension fund actuarially solvent to bear the liability flowing from restoration of commuted portions of pensions after 13 or 15 years from the respective dates of commutation If not, the extent of additional funds necessary for the purpose may be indicated, and the tax relief which will be available for such contribution of additional funds may also be indicated. (2) Is the pension fund actuarially solvent to bear (a) enhancement of pensions and (b) linking pensions with the cost of living index If so, the extent by which the pensions can be enhanced by utilising the existing resources of the Fund may be indicated. The report has been received and kept on record. It indicates that the additional liability on account of restoration of the commuted value of the pension on the basis of 13 years would be more than Rs. 3 Crores and on the basis of 15 years would be more than Rs. 2-1/2 Crores. Counsel for the petitioners has, however, told us in course of the hearing that the question of restoration of the commuted value of the pension may not be adjudicated at present. In view of such submission, we do not examine this issue.;