Kerala High Court
V.G.K.Naidu vs Bharat Petroleum Corporation Ltd on 20 August, 2015
Author: Dama Seshadri Naidu
Bench: P.R.Ramachandra Menon, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY, THE 11TH DAY OF APRIL 2017/21ST CHAITHRA, 1939
WA.No. 2205 of 2015 IN WP(C).23001/2014
--------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 23001/2014 of HIGH COURT OF KERALA DATED
20-08-2015
APPELLANT/PETITIONER IN WP(C):
------------------------------
V.G.K.NAIDU,
(FORMER MEMBER AND WORKMAN OF COHIN REFINERIES WORKERS
ASSOCIATION), COCHIN REFINERIES WORKERS ASSOCIATION,
VPP/427, AMBALAMUGHAL, ERNAKULAM, COCHIN 682 302.
BY ADV. SRI.C.S.AJITH PRAKASH
RESPONDENTS/RESPONDENTS IN WP(C):
---------------------------------
1. BHARAT PETROLEUM CORPORATION LTD.
KOCHI REFINERIES LTD, AMBALAMUGHAL, COCHIN 682 302.,
REP. BY ITS MANAGING DIRECTOR.
2. THE GENERAL MANAGER (HRM)
BHARAT PETROLEUM CORPORATION LTD,
KOCHI REFINERIES LTD, AMBALAMUGHAL, COCHIN 682 302.
R1,R 2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 3/10/2016, ALONG
WITH WA. 2216/2015, THE COURT ON 11-04-2017 DELIVERED THE FOLLOWING:
W.A.No.2205 of 2015
APPENDIX
PETITIONER'S EXHIBITS:
ANN.A1 TRUE COPY OF THE APPLICATION FORM FOR THE GRANT OF
EX-GRATIA PAYMENT UNDER THE MONTHLY EX-GRATIA SCHEME
DTD.20.1.2009.
TRUE COPY
P.S.TO JUDGE
css/
C.R.
P.R. Ramachandra Menon &
Dama Seshadri Naidu, JJ.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
W.A.No.2205 & 2216 of 2015
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 11th day of April 2017
JUDGMENT
Dama Seshadri Naidu Introduction:
An employee faced disciplinary proceedings. On enquiry, the employer punished him with reversion to a lower-cadre. The trade union to which he owed allegiance raised an industrial dispute. When the dispute was pending before an Industrial Tribunal, the employer introduced a beneficial scheme--a scheme into which the employee would fit, but for one condition: The employee should have no litigation pending against his employer. The employee had one.
2. The employee questioned the condition about pending litigation. A learned single Judge has held that the Scheme admits of no tinkering, and the condition is unassailable. But the learned Judge declared that the employee was eligible for the benefit from the date W.A.Nos.2205/2015 & 2216/2015 2 the scheme came into effect on his filing an undertaking in the manner prescribed. That judgment is assailed now by both the employee and the employer. As both the writ appeals arise out of one judgment, we are disposing of both the appeals together. Facts:
3. The appellant in W. A. No.2205 of 2015, V. G. K. Naidu, is the petitioner in W.P.(C)No.23001 of 2014. An employee of the Bharat Petroleum Corporation Limited ("the Corporation"), he retired from service on 29.2.2008. While Naidu was in service, the Corporation initiated disciplinary action against him; it culminated in Ext.P5 order, dated 31.7.2001: By way of punishment, the Corporation demoted him as Fire Truck Driver/Panel Operator, and to the lowest scale of pay, at that.
4. The Corporation, in the disciplinary proceedings, held Naidu liable to pay Rs.6,682.30 being the loss he is said to have caused to the Corporation. The amount was to be recovered from Naidu's salary, arrears of salary, and other payments that would be due to W.A.Nos.2205/2015 & 2216/2015 3 him in future.
5. The General Secretary, Cochin Refineries Employees Association, on behalf of Naidu, raised a dispute which was referred to the Labour Court, Ernakulam for adjudication as I.D.No.22 of 2002. Simultaneously, the dispute regarding yet another employee of the Corporation was also referred to the Labour Court, Ernakulam:
I.D.No.21 of 2002. With the establishment of the Central Government Industrial Tribunal-cum-Labour Court, Ernakulam ("Industrial Tribunal), both the cases were transferred from Labour Court, Ernakulam, to the Industrial Tribunal. The cases were renumbered as I.D.No.98 of 2006 and I.D.No.327 of 2006. I.D.No.327 of 2006 relates to Naidu.
6. When the industrial disputes were pending, the Corporation introduced the Monthly Ex-Gratia Scheme ("the Scheme") with effect from 1.4.2008. The scheme had the objective of extending monthly benefit to its ex-employees with 15-years completed service. Through Ext.P7, dt.13.01.2009, the Corporation informed Naidu about the scheme. Ext.P7, in fact, allowed Naidu to apply in the W.A.Nos.2205/2015 & 2216/2015 4 prescribed form, latest by 31.01.2009, accompanied, among other things, by an undertaking in Annexure-V. To be eligible, an ex- employee had to undertake as follows:
"3. That I have not entered into any litigation either singly or collectively against Burmah Shell Group of Companies/Bharat Petroleum Corporation Limited/Kochi Refineries Ltd. relating to my service and/or service conditions including Pension/Superannuation Scheme, before any Court/Forum/Authority."
7. For Naidu to take advantage of the scheme, he had, then, the pending I.D.No.327 of 2006--an appeal against the punishment imposed on him. So Naidu sent Ext.P8 letter to the Senior Manager, requesting him to clarify whether he could submit an affidavit after deleting the paragraph that deals with the pending litigation.
8. The Senior Manager replied through Ext.P9: The enrollment under the Scheme cannot be conditional. He also left it for Naidu either to pursue his litigation or to comply with the scheme-- complying with the scheme meant Naidu's withdrawing the industrial dispute. For a while, Naidu did neither.
9. More than a year later, in 2010, the Industrial Tribunal W.A.Nos.2205/2015 & 2216/2015 5 passed Ext.P6 award, upholding Ext.P5 order of the disciplinary authority. That award has attained finality. Long after Ext.P6 award was passed, in 2014 Naidu submitted Ext.P10 representation to the Corporation's General Manager (HRM). He requested the GM to enroll him in the Scheme and to disburse the monthly benefits, including the arrears, at least, from 16.11.2010, the date when the I.D.No.327 of 2006 was disposed of.
10. With no reply received, Naidu filed W.P.(C)No.23001 of 2014 on 29.8.2014. He challenged Clauses 5 (d) and 6 (1) of the Scheme as unenforceable, for it is, according to him, arbitrary and discriminatory affecting his constitutional right to approach a court of law for redressal. He sought some other related reliefs, too. The Result:
11. The learned single Judge held on merits that Scheme is non-statutory; as such, it must be accepted--if an employee wishes to take advantage of it--in its entirety. The learned single Judge, however, directed that "in the event of the writ petitioner filing an W.A.Nos.2205/2015 & 2216/2015 6 affidavit in the prescribed form within one month from the date of receipt of a copy of the judgment, payment under the Monthly Ex- Gratia Scheme including arrears from 1.4.2008 shall be effected." Appeals:
12. Aggrieved, the Corporation filed W.A.No.2216 of 2015 challenging that part of the direction that enabled Naidu to apply, although from a later date, for benefits retrospectively. The Corporation contends that Naidu, if at all, will get the benefit from the date he applied--15.7.2014--but not from the date the Scheme was introduced--1.4.2008.
13. Naidu, on the other hand, filed W.A. No.2205 of 2015 challenging the judgment to the extent it did not allow him to have the benefit without reference to the industrial dispute. Lis Pendence Developments:
14. The record reveals that, pending the writ petition, on 5.1.2015 Naidu once again applied after deleting third para from Annexure-V attached to the application. He pleaded that his wife was getting treated for renal problems. The Corporation contended that if W.A.Nos.2205/2015 & 2216/2015 7 Naidu filed a fresh affidavit in the form prescribed in Annexure-V, it would have no objection to pay under the Scheme, at least, as an interim measure from January 2015.
15. This Court, in an interim order, dt.12.10.2015, observed that "the petitioner has ceased to be an employee of the Corporation with effect from 29.2.2008, and he has not so far raised any dispute either relating to his service conditions or the ex-gratia payment other than the instant writ petition." It has further observed that Naidu's submitting an affidavit as insisted on by the Corporation will not cause any prejudice to him. In the end, it directed Naidu to submit an affidavit in Annexure-V to enable the Corporation to make payment under the Scheme at least from January 2015, as an interim measure. The Court further ordered the Corporation to pay the arrears for the period from January 2015 to October 2015 within two weeks from the date on which Naidu would submit an affidavit, as directed.
16. It seems both the parties have complied with the interim W.A.Nos.2205/2015 & 2216/2015 8 order.
Submissions:
Appellant's:
17. Sri C. S. Ajith Prakash, the learned counsel for the employee, to begin with, has submitted that a citizen should not be prevented from approaching a Court of law for legal remedies. Clauses 5 (d) and 6 (1) are unsustainable. He has also contended that the labour dispute was raised by the trade union rather than by the employee.
18. Sri Prakash has further contended that Clause 2 of the Scheme, dealing with the `eligibility', does not impose any restriction on pending litigation. According to him, the condition was imposed in Clause 3, `how to apply', which is merely procedural. In elaboration, Sri Prakash has contended that the condition discriminates against a set of employees who assert their rights. A Public Sector Undertaking cannot act like a private employer, argues Sri Prakash, to insist on such offending clauses as will prevent a citizen from approaching a W.A.Nos.2205/2015 & 2216/2015 9 court of law.
19. Eventually, Sri Prakash contended that the Corporation should not have insisted on the employee's affidavit undertaking to withdraw the pending litigation against it. He, therefore, urges us to allow the employee's writ appeal.
Corporation's:
20. Sri M. Gopikrishnan Nambiar, the learned Senior Counsel appearing for the Corporation, has, first, supported the findings of the learned Single Judge about the nature of the Scheme and the validity of the conditions. He has, then, contended that the learned single Judge's finding that the benefit should be extended to the employee from 01.04.2008 has no rational basis.
21. The learned Senior Counsel further contends that the employee would be eligible for the benefit only from the date he submitted the application strictly complying with the Scheme. The employee, according to him, initially had chosen to pursue the litigation. A particular option chosen, the employee cannot turn around and complain that he has been wronged.
W.A.Nos.2205/2015 & 2216/2015 10
22. In the end, the learned Senior Counsel has submitted that the Corporation cannot be made to suffer for the employee's fault. He has, thus, urged us to interfere with the impugned judgment to the extent it directs the Corporation to extend the benefit from 1.4.2008, when the Scheme was introduced.
23. Heard Sri C. S. Ajith Prakash, the learned counsel for the employee and Sri M. Gopikrishnan Nambiar, the learned Senior Counsel appearing for the Corporation, besides perusing the record. Issues:
1. Are the Clauses 5 (d) and 6 (1) of the Scheme arbitrary and discriminatory, rendering themselves unenforceable?
2. Do these Clauses offend an employee's right to judicial remedy, an attribute of the fundamental rights guaranteed under the Constitution?
3. Should an employee with pending litigation be given the benefit from the date the Scheme was introduced, the date the litigation came to an end, or the date the employee applied strictly complying with the Scheme?
W.A.Nos.2205/2015 & 2216/2015 11 Discussion:
Issues 1 & 2:
(a) Access to Judicial Remedies:
24. A Constitution Bench of the Supreme Court, on reference, examined whether Constitutional Courts have the power to transfer cases from one court in a State to a court in another State absent a statutory provision empowering such transfer. Anita Kushwaha v. Pushap Sudan1 has examined in depth the issue "access to justice."
25. Anita Kushwaha traces the origins of concept `access to justice' to the common-law system and the Magna Carta. In most constitutional democracies, it observes, access to justice is recognized as a fundamental right. "To no man will we sell, to no one will we deny or delay right to justice" holds the Magna Carta. Its echo is heard in Articles 8 & 10 of Universal Declaration of Rights drafted in the year 1948. After referring to various legal commentaries and decisions of different jurisdictions,Anita Kushwaha succinctly holds in para 26:
1 (2016) 8 SCC 509 W.A.Nos.2205/2015 & 2216/2015 12
26. To sum up : Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilised societies around the globe. The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens. The Magna Carta, the Universal Declaration of Rights, the International Covenant on Civil and Political Rights, 1966, the ancient Roman Jurisprudential maxim of `Ubi Jus Ibi Remedium', the development of fundamental principles of common law by judicial pronouncements of the Courts over centuries past have all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilised societies and systems recognise and enforce.
26. We may, by extension, observe that access to justice involves right to judicial remedies. A statute may, under justifiable circumstances, impose restrictions on this right--the right to judicial remedies. The restriction can be forum specific and time-bound, for instance. The restriction may also concern the limit of access. For example, a statute may restrict the number of stages a litigant may reach in appellate or revisional remedies--that is, by way of procedural prescription. In other words, as with any other individual right, the State can condition or limit access to justice to accommodate other countervailing rights affecting, say, public interest.
W.A.Nos.2205/2015 & 2216/2015 13
27. Article 6 of the European Convention on Human Rights provides that "in the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." As early as the 1760s, Blackstone wrote in his Commentaries on the Laws of England2 in the 1760s: "A... right of every [man] is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty and property, courts of justice must at all times be open to the subject and the law be duly administered therein."
28. In Access to Justice as a Fundamental Right, edited by Francesco Francioni3, it is argued that at the substantive level, restrictions on access to justice must, in principle, be distinguished from the situation where the unavailability of remedies is due to the lack of legal recognition of the right claimed. He provides 2 (4th ed.1876, 111) as quoted in The right to a court: Article 6 of the Human Rights Convention, James Wood Lecture delivered by Lord Sumption on 23.11.2015 at University at Glasgow. https://www.supremecourt.uk/news/speeches, last accessed on 5th April 2017. 3 Oxford University Press, Ed.2007 W.A.Nos.2205/2015 & 2216/2015 14 illustrations. In Powell and Rayner v United Kingdom4, the European Commission denied "action for nuisance caused by the flight of aircraft at a reasonable height. The applicant could not show any substantive right in respect of the action. Similarly, in Balmer- schofroth and Ors v Switzerland5 the Strasbourg Court "denied that Article 6 of the ECHR established a right of access to justice for local residents to challenge the extension of a nuclear plant."
29. The commentary further observes that restrictions on access to justice regarding certain classes or types of persons have also been accepted in the case of `vexatious' or `frivolous' litigants who may abuse the right by making repeated and unfounded claims. In this case, the legitimate aim of protecting potential defendants from undue harassment or of preventing the clogging of the judicial system with frivolous claims may justify the requirement of a leave to sue or of imposing sanctions on frivolous appellants6.
30. Besides legislation or administrative measures, restrictions 4 Application 9310/81, Report of 19 January 1989. (As quoted in the commentary, p.115) 5 ECHR, Series A No.3003-C, 1998 (ibid) 6 Access to Justice as a Fundamental Right (OUP), Ed.2007, p.116 W.A.Nos.2205/2015 & 2216/2015 15 on access to justice may result from private action, such as voluntary surrender of the right of action by agreement to resort to arbitration or voluntary settlement precluding further legal action7. As to the true restrictions on access to justice, the commentary observes that the denial is substantial when the law of the relevant state provides for a general exclusion, or certain modalities, of suits under certain circumstances or in relation to a certain class of persons8.
31. That said, we reiterate that a remedy may be unavailable if the right claimed has no legal recognition. A right may have been constitutionally or statutorily sanctioned; it may have been a common-law right or a customary right. Rights have shades. But they ought to have a source, too. An individual right may have societal implications; then, those rights cannot be waived even by the beneficiary. Some other rights exist only to aid the individual who can, on his volition, waive them. Privileges or concessions stand on a different footing. They are short of rights, but bind the promisor under certain circumstances: a promise to sell binds; a promise to 7 Ibid, p.117 8 Ibid, p.115 W.A.Nos.2205/2015 & 2216/2015 16 gift does not.
(b) Does the Corporation Have a Statutory Obligation?
32. What sort of right does not Naidu claim to have? Here, the Corporation has no statutory--not even contractual--obligation, much less compulsion, to provide a benefit as it has provided under the Scheme. It is, therefore, a benefit it extended to its employs, gratis. It lacks enforceability. Once it lacks enforceability, it can also be couched in conditions. The beneficiary may take it with the conditions, or leave it.
(c) The Stipulations in the Scheme:
33. From April 2008, the Corporation introduced the Scheme to extend monthly benefit "ex gratia" to its former employees with 15 years' service. The benefit is extended to them or their dependents on any of these contingencies: (i) retirement, (ii) death, (iii) permanent total disablement, and (iv) early retirement on medical grounds.
34. Clause 2 of the Scheme fixes the eligibility criteria. Naidu, doubtless, fulfilled them. Clause 3 deals with the instances under W.A.Nos.2205/2015 & 2216/2015 17 which the Scheme remains unavailable. Sub-clause (viii), relevant for our purpose, reads as follows:
(viii) had/have entered into any litigation for Pension or Superannuation Scheme individually or collectively against the Company/Corporation before any Court of Law/Forum/authority and such case(s) is still pending. This clause is also applicable to spouse of such ex-employee.
35. While applying, the former employee must submit an undertaking as provided in Annexure V. Clause 5 (d) explains how the employee should undertake:
"5 (d). How to apply:
The Ex-employees/surviving spouse, who are eligible for Ex-Gratia shall be required to execute an undertaking as per Annexure V to the effect that (i) this benefit is being given not because of any right or entitlement, but entirely as an Ex-Gratia; (ii) he/she will not enter into any litigation individually/collectively in this regard and/or any other service related matters before any Court of Law/Forum/Authority; (iii) if any case pertaining to Burmah Shell pension Scheme and/or Superannuation Scheme/any service related matter is pending before any Court of Law/Forum/Authority, if he/she was a party to any such case shall withdraw the same forthwith. The eligibility of such applicant shall be verified and application will be processed only after withdrawal of such case/petition or litigation before any Court of Law/Forum/Authority where the applicant is a sole/joint petitioner.
(italics supplied)
36. Sub-clause (i) of Clause 6, also relevant, reads as follows:
W.A.Nos.2205/2015 & 2216/2015 18 "(i) Payment under the Scheme is subject to the Ex-employee's (including spouse) withdrawing all litigation."
37. As Clause 5 (d) (1) asserts, the benefit is given not because of any right or entitlement, but entirely as an Ex-Gratia. Once the benefit is gratis--free--we reckon that the Corporation is well within its rights to insist on a precondition as an eligibility criterion. We may bear in mind that the Corporation has compelled no employee to desist from litigating against it; it only says this: If you want this benefit, spare us from litigation. You extend an olive branch; we extend a benefit--so to say.
38. So, unassailable is the the learned single Judge's concluding that Clause 5 (d) or Clause 6 (1) contradicts no provision of law and affects no rights of the employees.
Issue No.3: Should the employee be given the benefit from the date the litigation came to an end or from the date he applied strictly complying with the Scheme?
39. Examined closely, Clause 5 (d) does not shut the doors on the ex-employees who are litigating against the Corporation. It only W.A.Nos.2205/2015 & 2216/2015 19 says that their application will be processed "only after withdrawal of such case/petition or litigation. . ."
40. On 1.4.2008 the Scheme was first introduced; on 27.01.2009 Naidu asked the Management whether he could apply after deleting the condition concerning litigation; on 30.01.2009, the Management told him the conditions are non-negotiable, Naidu can choose either course--to continue with the litigation or to withdraw from ID; on 16.11.2010 the Industrial Tribunal terminated the proceedings by passing Ext.P6 award, rejecting Naidu's appeal. The award became final.
41. So, going by the march of events, by 16.11.2010 Naidu had no litigation pending against the Corporation. Once we hold that neither of the clauses--5 (d) and 6 (1)--is assailable, it necessarily follows that Naidu could not have the benefit so long as the litigation had continued--till 16.11.2010.
42. Because of the interim arrangement made through Order, dt.12.10.2015, Naidu has been getting the benefits from January 2015. That benefit will continue. In addition, the Corporation should W.A.Nos.2205/2015 & 2216/2015 20 pay the arrears to Naidu from 16.11.2010, when the industrial dispute ended, till December 2014, thereafter the Corporation extended the benefit. Only to this limited extent do we interfere with the impugned judgment, dt.20.08.2015.
Accordingly, we dispose of both the writ appeals. No order on costs.
Sd/- P.R.RAMACHANDRA Menon
Judge
sd/- DAMA SESHADRI NAIDU
Judge
css/ true copy
P.S.TO JUDGE