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The petitioner was employed as a clerk in the Burmah Shell Oil Storage Ltd., (Burmah Shell, for short) and retired betimes (at 50) after qualifying for a pension, on April 1, 1973. He was also covered by a scheme under the Employees Provident Funds and Family Pension Fund Act, 1952 (for short, the PF Act). The employer undertaking was statutorily taken over by force of The Burmah Shell (Acquisition of Undertakings in India) Act, 1976 (hereinafter called the Act). Thereafter, the Central Government, acting under the statute, took necessary steps for the vesting of the Undertaking in the second respondent, the Corporation and became the statutory successor of the petitioner's employer. His pensionary rights, such as he had, therefore, became claimable from the second respondent. What was the quantum ? Was any cut illegally effected by Burmah Shell and continued by respondent 2 ? Could a writ be issued against the second respondent in respect of the cut ? These are the questions argued before us. The petitioner- pensioner, being too poor, Shri Parekh, assigned by the Legal Aid Society, appeared promptly and argued passionately. At a re-hearing, the petitioner preferred to make a few brief supplementary submissions on his own.

By letter dated September 25, 1974, the employer (Burmah Shell) explained that from out of the pension of Rs. 165.99 two deductions were authorised by reg. 16. One such deduction was based on reg. 16(1) because of Employees Provident Fund payment to the pensioner and the other rested on reg. 16(3) on account of payment of gratuity. Resultantly, the `pension payable' was shown as Rs. 40.05.

The case becomes clear if one more fact is mentioned. The petitioner claimed and received his Provident Fund amount under the PF Act and recovered a gratuity amount due under the Payment of Gratuity Act, 1972 (for short, the Gratuity Act). It is necessary to mention that Burmah Shell was refused exemption, under s. 5, from the operation of this Act (vide Annexure F to the Writ Petition). In short, two sums, one under the PF Act and the other under the Gratuity Act, were drawn by the pensioner. Consequent on this, Burmah Shell made 2 deductions from the petitioner's pension, taking its stand on reg. 16 read with reg. 13 already referred to. Indeed, the company went even beyond this, in its letter of May 8, 1974, by cutting off the monthly payment of Rs. 86/- paid as Supplementary Retirement Benefit on the score that it was ex gratia, discretionary and liable to be stopped any time by the employer.

The device is too obvious for deception that what is done is a formal transfer from government to a government- company as the notification clearly spells out :

In exercise of the powers conferred by sub-section (1) of Section 7 of the Burmah Shell (Acquisition of Under takings in India) Act, 1976 (2 of 1976), the Central Government, being satisfied that Burmah-Shell Refineries Ltd., a Government company is willing to comply with such terms and conditions as may be imposed by the Central Government hereby directs that the right, title and interest and the liabilities of Burmah-Shell Oil Storage and Distributing Co. of India Ltd. in relation to its undertakings in India, shall, instead of continuing to vest in the Central Government vest with effect from the twenty fourth day of January, 1976, in Burmah-Shell Refineries Ltd.

We may now proceed to consider the substantial questions raised by the petitioner to invalidate the deductions from his original pension on the ground of his drawal of provident fund and gratuity. The justification for such deduction is claimed to be regulation 16 and its antidote is urged to be a provision in the two respective enactments relating to provident fund and payment of gratuity, namely, ss. 12 and 14.

The petitioner retired voluntarily under an extant voluntary retirement scheme. The quantum of pension was regulated by that scheme. The petitioner was also a member of the statutory scheme framed within the scope of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and was entitled to Provident Fund payment on retirement. Likewise, he was entitled to payment under the Gratuity Act, 1972. These were the statutory rights which he enjoyed. Being a non-contributory member of the Pension Fund of Burmah Shell under the Trust Deed set up by it, he earned his pension. But the Trust Deed contained many regulations. The normal annual pension under the regulations worked out to a sum of Rs. 165.99 per month for the petitioner. Regulation 16 provided for certain "authorised deductions" from the amount of pension of non-contributing members. The quantification of these deductions was provided for in the said regulation. If these deductions were not to be made, the petitioner would be eligible for his pension of Rs. 165.99 and Rs. 86 per month by way of Supplementary Retirement Benefits which, he asserted was a part of the pensionary benefits. This was being paid by the Burmah Shell to its employees and naturally this obligation devolved on the successor second respondent under the statutory rules framed in this behalf [Burmah Shell (Acquisition of Undertakings of India) (Administration of Fund) Rules, 1976]. But, by letter dated August 10, 1973, the petitioner was informed that a sum of Rs. 56.12 would be deducted as an 'authorised deduction' pursuant to reg. 16 mentioned above.