- (1.) These three appeals are directed against judgment dated February 10, 1993 delivered by learned single Judge in Writ Petition No. 2416 of 1991 and Writ Petition No. 3532 of 1991. The two petitions were field before the learned Judge to challenge Award dated April 8, 1991 declared by National Industrial Tribunal at Bombay. As we propose to set aside the order of the learned single Judge and also the Award of the Tribunal and remit the matter back to the Tribunal for fresh decision, it is not necessary to set out the facts in great detail an it would be suffice if only relevant facts are referred to.
(2.) In year 1926, a company known as ICI (India) Private Limited was incorporated in U. K. Between years 1939 and 1961, three Indian Subsidiaries by name (a) Alkali and Chemicals Corporation of India Limited, (b) Indian Explosives Limited, and (c) Chemicals and Fibres of India Limited were set up in India. In year 11982, all the subsidiary companies were amalgamated with Indian Explosives Limited and in year 1989, the name of Indian Explosives Limited was altered to ICI Limited. The Company deals in diversified subjects like chemicals fertilizers, paints, rubber, fibre etc. The company is one of the large multinational company in India and has several manufacturing facilities at different places in the country. The company has factories at Panki in Uttar Pradesh, Gomia in State of Bihar, Rishra in West Bengal, Hyderabad in Andhra Pradesh, Ennore in Tamil Nadu, Bangalore in Karnataka, and Thane in State of Maharashtra. The company employs about 8,500 employees in its establishment all over India an out of these about 517 are categorised as 'management staff' while the rest are workmen within the meaning of Section 2(s) of the Industrial Disputes Act (hereinafter referred to as 'the Act'), The employees of the company are provided with the benefits of gratuity and contributory provident fund. An industrial dispute between the management of the company and its workmen represented by New Delhi Employees Union was pending before the Industrial Tribunal, Delhi in year 1961. The workmen stationed at Delhi unit were claiming that the age of retirement should be raised from 55 years to 60 years in addition to several other demands. During the pendency of that reference, settlement was reached between the employees and the company and terms of settlement were tendered. The memorandum of settlement, inter alia, provided that the company under takes to implement the pension scheme which it had already submitted to the Tribunal and a copy of which was annexed to the memorandum of settlement. The scheme was to be called ICI (India) Employee's Pension Benefit Scheme and the scheme was entirely voluntary on the part of the company and did not entail payment of any contribution by any employee. The object of the scheme was to provide the employees with a monthly pension in addition to their existing retirement benefits. The scheme was deemed to have come into force from January 1, 1961 and was applicable to all employees retiring after the said date. The scheme provided for minimum pension and the pension was to be calculated on the basis of the following formula : "1 x (A x B) - D) When -------- CA - number of completed continuous months of service subject to a maximum of 420 months (in the case of those employees whose age of retirement is 55 years) 450 months (in the case of those employees whose age of retirement is 58 year), or 480 months (in case of those employees whose age of retirement is 60 years) respectively. B. Annual average of salary and dearness allowance of the last 84 months immediately preceding the date of retirement. C. 840 where the age of retirement is 55 : 900 where the age of retirement is 58 : 960 where the age of retirement is 60 : D - Annuity value of the combined Provident Fund accumulations and gratuity of the employee at such rates of annuity as may be declared from time to time by the Life Insurance Corporation of India". It is not in dispute that form January 1, 1961, the workmen of the company as well as the management staff were paid pensionary benefits in addition to gratuity an provident fund though the rate of pension for management staff was determined differently from those of the workmen. The scheme was revised on January 1, 1966; April 1, 1975; October 1, 1977 and, finally, on April 1, 1985. By these periodical revisions, the quantum of pension was increased.
(3.) The Association of Pensioners and Unions of Workmen were agitation since year 1973 about the discrimination between the classes of pensioners fixed according to their date of retirement and the differential application of rate of pension to different categories. Certain conciliation proceedings commenced before deputy commissioner of Labour, West Bengal, but resulted into failure. Ultimately, the Government of West Bengal moved Government of India to constitute Tribunal for reference of dispute for adjudication. The Central Government, by order dated August 13, 1987, passed in exercise of powers under Section 10(1)(a) of the Act, referred the dispute to National Industrial Tribunal for adjudication. The dispute referred for adjudication is : "Whether the pension formula governing present pension scheme introduced by the management of the Indian Explosives Limited for its employees in all its establishments in the country needs revision in so far as it does not take into account the cost of living as a factor in its determination and whether the scheme in the way it is being implemented is discriminatory in its application to different categories of pensioners. If so, what is the relief to which the workers are entitled" After the reference was made, application dated January 11, 1988 was filed by the Association of Pensioners of the company for impleading the Association as party to the reference. The application was resisted by the company but the Tribunal, by order dated June 10, 1988, overruled the objections and granted the application of the Association for being joined as a party to the reference. The company then raised preliminary objections regarding competency of the reference an jurisdiction of the Tribunal to adjudicate upon the dispute referred. The preliminary objections were also overruled by the Tribunal by a reasoned order dated August 21, 1989. The company had challenged the findings of the Tribunal in respect of joining the Association of Pensioners as a party to the reference and in regard to the preliminary issues raised before this Court and the supreme court respectively. This Court and the supreme Court declined to entertain the petition and made it clear that the grievance of the company can be raised after the Award is passed. The Federation of the workers field statement of claims before the Tribunal and the demands were - (a) existing pension scheme should be substantially revised and the pension should be paid at the rate of 50% of the last drawn basic salary an dearness allowance thereon; (b) there should be no discrimination in payment of pension on the basis of the date of retirement and all revision made in pension should be made applicable to all the pensioners; (c) all employees who have retired prior to January 1, 1961 should be eligible for pension on the same lines as those who retired subsequently; (d) all widows/widowers of employees or pensioner who had retired prior to January 1, 1961 should be eligible for pension; (e) widows/widowers of employees or pensioners should be paid pension at the rate of 50% of the pension payable to the deceased employee; (f) the period of 20 years service for eligibility of pension should be reduced to 15 years of service; (g) pension should be rationalised and the discrimination should be removed; and (h) the revised pension scheme should be effective from January 1, 1982. The company resisted the reference by, inter alia, claiming that the company is the first in private sector to introduce the pension scheme in addition to grant of benefit of provident fund an gratuity an the Tribunal should not foist additional liability on the company by providing revisions of pension scheme. The company also claimed that the demand of the workmen that the entitlement of pensionary benefit should be linked with the cost of living index cannot be accepted because the workmen cannot claim dearness allowance on the quantum of pension payable. The company also pleaded that the financial condition of the company is not sound and it is not possible to bear the additional burden. The workmen did not lead any evidence before the Tribunal and the company had field two affidavits of Mr. Jejurikar and Mr. Jejurikar was cross-examined on behalf of the workmen.;