Industrial Disputes Act, 1947 - Sections 10(3) and 39
1. This industrial dispute between the Municipal Corporation of Greater Bombay and the Workmen employed under it in its Fire Brigade. Service was referred to Sri M. R. Meher, as industrial tribunal, under Sub-section (3) of S. 10 of the Industrial Disputes Act, 1947 (XIV of 1947), by the Deputy Commissioner of Labour (Administration), Bombay, empowered under S. 39 of the said Act as per order No. AJM. 29 of 1958, dated 5 July, 1958, and later transferred to me as per Government's order, Labour and Social Welfare Department, No. AJB. 7158-H, dated 20 May, 1959. The dispute relates to working hours and overtime wages, pay-scales, etc.
2. The demands in this reference relate to members of the Fire Brigade Service. Chapter XIV of the Bombay Municipal Corporation Act provides for the maintenance of the Municipal Fire Brigade and S. 359(1) contained in the said chapter reads as follows :
'With a view to the discharge by the Corporation of the duty of extinguishing fire and protecting life and property in case of fire, the Commissioner shall provide, in the schedule of municipal officers and servants from time to time prepared by him under S. 79, for a force of firemen, with a proper number of officers over them to be called 'the municipal fire brigade, and shall furnish the said brigade with all such fire-engines, fire-escapes, horses, accouterments, tools, implements, and means of intercommunication as may be necessary for the efficient discharge of their duties.'
In accordance with the requirements of the said section, the Corporation maintains a force of about 400 firemen, tindals, etc., supervised by about two dozen officers and a chief officer. This force is provided with rentfree accommodation near the respective fire brigade stations to which they are attached so as to enable them to be on call throughout the day. Apart from actually attending fire calls and alarms, the men have to attend to daily routine parade, fire brigade drill, cleaning of station and equipment etc., during hours prescribed. In view of the peculiar nature of their duties, the service conditions of the fire brigade staff are modelled on different lines from those of the other staff of the Corporation.
Demand 1 is as follows :-
'No employee should be required to work for more than eight hours a day. For the work taken in excess of eight hours a day, every employee should be paid overtime salary at the rate of twice his ordinary rate of salary.'
3. As for the first part of the demand the union has submitted that the employees have to work for 24 hours continuously for all the days in the year. All other employees in the Corporation are required to work for 8 hours a day or 48 hours a week and if they work in excess of 48 hours a week they are paid overtime. The Factories Act and the Minimum Wages Act also prescribe 48 hours work in a week and a certain spread-over and there is also provision for overtime payment in respect of overtime work. The various duties which firemen have to perform have been detailed at length in Para. 11 of the statement of claim. This, it is submitted, is in addition to the routine work of fighting the fires and also answering false calls. It is further submitted that the claim of 8 hours work should be granted because of the intensity and the high degree of danger involved in the duties of firemen. Elaborate quotations are given in support of the demand from the Report of an Enquiry into Demands of Labour by Sri P. C. Chaudhuri, I.C.S., in connexion with the port and dock workers, and emphasis has been laid on his observation that when the hours of labour are excessive, the worker has little leisure to attend to his duties as a citizen and a householder, and that shorter hours are apt to increase the efficiency of the workers, who are better able to concentrate and adapt themselves to new and more advanced processes. It has been submitted than even when the nature of work is intermittent which is defined as where the employee will have substantial periods of rest or enforced idleness during the period of duty, the maximum hours of work prescribed for such essentially intermittent work is 75 hours a week in place of 48 hours and not 24 hours per day as in this case and there is also a running allowance and other compensatory allowance. It has therefore been submitted that the demand of 8 hours duty and payment of overtime as submitted by the union is based on sound foundation of labour principles practised everywhere else fn the present socialistic pattern of living conditions, and therefore the Corporation should be directed to reduce the hours of work from 24 and to make payment at double the rates for all overtime work done.
4. The Corporation has in its reply admitted that every member of the fire brigade has to be on call throughout 24 hours and that each man is given a weekly off of 18 hours. It has reproduced the following programme of drill and station work :-
From Monday to Friday - 6.30 a.m. to 8 a.m. Parade and fire engine drill. 8.30 a.m. to 11.30 a.m. } Station work, e.g., cleaning of } appliances, checking of 3.30 p.m. to 5.00 p.m. } gears, etc. Saturday - 6.30 a.m. to 8 a.m. } Cleaning of appliances 8.30 a.m. to 11 a.m. } and gear, etc.
No such routine work is done on Sundays. It has stated that outside these hours also the men are required to attend fire calls and alarms. Thus, apart from the hours fixed for the said routine work, the fireman's work is intermittent depending on the number of calls to be attended to by each station. The Corporation has submitted that the work at the station is intermittent and that the number of men employed is adequate. It has also submitted that in view of the fact that a man is required to be on call for 24 hours they are not only given rent free accommodation near their stations but are also extended various service conditions, viz., rentfree accommodation, liberal leave facilities, free medical relief, retiring benefits on a more liberal scale, etc. It is also submitted that if the demand of the union is conceded, the extension of most of the benefits stated above will cease to be necessary. The Corporation further pointed out that it is not possible to accede to the demand as the difficulties of training and housing personnel make three-shift working impracticable. The training is extremely thorough and has to be done day to day; that it was for this reason that the fire brigade was exempted from the provisions of the Minimum Wages Act and rules relating to hours of work and that if the demand is conceded, the maintenance of prompt and efficient fire brigade service will become impossible. The Corporation has further submitted that precisely because the firemen are required to be on call for 24 hours and the risk element that more liberal conditions have been laid down for the department and that there would be no justification for the same if the working hours were reduced.
5. Both the union and the Corporation have stated before me that the nature of work of firemen is different from the work the other employees of the Corporation are required to do. Both the union and the Corporation have therefore relied upon and brought to my notice the hours of work of firemen at places other than in Bombay. Some of these are mentioned in appendix A to the Report of the Committee of Corporation, which is on record. They are also stated in Exs. C. 8 and C. 9 and the union's Ex. U. 1 etc. Thus, according to this exhibit the working hours of firemen in the Bombay Port Trust is 8 hours plus 2 hours overtime every day. In Burmah-Shell Oil Storage and Distributing Company of India, Ltd., and Standard Vacuum it is 9 hours, in the West Bengal Fire Service the working hours are 9 in the first shift and 15 in the second shift and the shift rotates on Sundays, for those who are not provided with quarters, though it appears that most of them are not provided with quarters. In the Madras Fire Service they work on double shift system in towns where rent-free quarters have not been provided and on the intermediate shift system where free quarters are provided. In Andhra Pradesh those who are provided with rent-free quarters are on continuous duty system; the rest are on shift system of 24 hours on and off. In Delhi Fire Service all the staff on operational side is on 24 hours duty. Exhibit C. 9 is a comparative statement of duty hours in foreign fire brigades. Thus in London there appears to be a two-shift system on alternate weeks of day (9 hours) and night (15 hours) shifts, averaging 60 hours of duty over a cycle of 14 weeks. Officers of the rank of Divisional Officers work an average 96 hours week and the Chief Officer, Deputy Chief Officer and Assistant Chief Officer are on continuous duty system. In Glasgow there are two shifts for operational staff, one operating from 8 a.m. to 6 a.m. and the other from 6 p.m. to 8 a.m. No short leave is granted to personnel on the shift system. In Birmingham fire brigade there is a shift system in operation.
6. It is true that being on continuous duty for 24 hours is something which by itself is not desirable. However, in order to have some idea of the actual amount of work per day or per week which firemen have to do, certain questions were put by me to the Corporation. All the information required by me was not available. However, the Corporation has filed several statements to give me some idea as to the amount of work actually a fireman has to put in in the course of a day. They have filed comparative statement showing the disposition of staff on operational and non-operational side for routine duties and those available in their quarters for attending calls, Ex. C. 5. They have also filed a statement showing the calls attended by each station in its own station as well as by aiding areas for the years 1955-56, 1956-57 and 1957-58, Ex. C. 6, and also a statement has been filed showing the peak and lean months of fire calls including all other calls attended by certain fire stations in the days and night time during the years 1956-57, 1957-58, 1958-58, and 1959-60 (up to July 1959). It is unfortunate however that there is no specific information as to the duration of each call.
7. I have been taken through these exhibits and there was considerable discussion also in respect of them at the hearing. It does appear to me from what was stated at the hearing though no definite finding can be given in the absence of positive material, that the actual work done by a fireman every day is certainly not excessive. The work ordinarily would be considerably less than 8 hours in a day although there may be occasions when the actual work done may be even excessive. But by its very nature such occasion are few. The reduction in working hours would, if at all, be justified not on the ground that the actual work they have to do every day is excessive but on other grounds. It does however appear to me that requiring a person to be on duty for 24 hours continuously for fix days in a week with a weekly off of only 18 hours is something not desirable. Such long hours of duty, even if they are hours of idle waiting, are bound to have adverse effect on the individual and bring about a kind of boredom in his life. To use the words of Sri P. C. Chaudhuri :
'when the hours of labour are excessive, the worker has little leisure to attend to his duties as a citizen and a householder.'
It does therefore appear to me necessary that the present system of 24 hours duty with only one weekly off of 18 hours duty with only in a week requires to be changed and must be discontinued. Even those who appeared before me on behalf of the Corporation admitted the same and stated that the Corporation was itself considering the necessity of introducing two shifts in place of the one of 24 hours work. There are however several difficulties in introducing the change either immediately or even in the immediate future. The first would of course be finance for the introduction of the two-shift system in place of the one, which would very nearly double the burden on the Corporation. The question of providing quarters would be even a greater difficulty. Today the Corporation is providing quarters to all its firemen. It the present practice is to be continued, fresh quarters will have to be built which would involve considerable expenditure. Apart from the question of money, there is hardly any space available near most of the fire brigade stations to build such quarters and the building up of suc quarters is bound to take considerable time. The Corporation further has submitted and with a certain amount of justification that they are providing quarters because the firemen are required to remain near the fire brigade for all the 24 hours of the day; that if two shifts are introduced, the Corporation would not be bound to provide the firemen with quarters; that such a step would entail the ejectment of a large number of firemen from the accommodation given to them at present - at a time when alternative accommodation is not available at all in the town and may result in discontent and friction. It appears to me therefore that any change in working hours can only be introduced slowly and gradually after mature consideration and after full consultation with the union. The wage-structure committee appointed by the Corporation have in their report observed :
'The committee have considered the demand of the Fire Service Staff Union that no employee should be required to work for more than 8 hours a day and for the work taken in excess of 8 hours a day, every employee should be paid overtime salaries at the rate of twice his ordinary rate of salary. The general secretary of the above union, who was invited to place his views before the meeting of the committee, had stated that it would be more economical and useful if there was 48 hours' of duty with a 24 hours' weekly off and this would involve the Corporation in employing 25 per cent extra staff as against 60 per cent extra staff if the double shift system was introduced. As, however, these suggestions required mature consideration by the executive, the committee recommended that so long as 24 hours' duty system continues, a special pay of Rs. 15 per month be given to those employees whose minimum is Rs. 60 in the new grade and a special pay of Rs. 30 per month to tindals, drivers and sub-officers doing operational duties.'
Thus most of the firemen are today in receipt of the special pay of Rs. 15 because of the long hours of their work, and in case of two-shift system is introduced, the said allowance would also be lost. In view of the difficulties existing at present the demand for a reduction in working hours at present is rejected. However, I recommend that in consultation with the representatives of workers the Corporation may consider the feasibility of
(1) introducing a two-shift system, or
(2) of giving two weekly offs in a week in place of the existing one.
The Corporation should also try and evolve a phased programme to be introduced over a number of years so that the present system of 24 hours for 6 days in a week could be discontinued. The corporation could also have two sets of employees, those supplied with housing accommodation on 24 hours duty and those not supplied with housing accommodation, those of the existing ones who relinpuish their housing accommodation and new employees being given two shifts. The demand however for 8 hours work is rejected. It may be mentioned that as the demand involves considerable expense, construction of new quarters and withdrawal of several existing concessions, any final decision is bound to take considerable time and should be taken after mature consideration and with the general approval of the persons involved.
Demands 2 is as follows :-
The existing structure of salary scales should be revised and the following salary scales be adopted :- Rs. Firemen ... 100 - 5 - 150 Senior firemen ... 135 - 5 - 160 Tindal ... 150 - 7 - 185 Driver ... 160 - 8 - 200 Sub-officer ... 220 - 10 - 250 Motor mechanic ... 250 - 10 - 350 Fitter ... 120 - 6 - 180 Carpenter ... 110 - 5 - 160 Mochee ... 80 - 4 - 120 Increments Year of service Increments 1 ... 1 1 to 3 ... 2 3 and more ... 3
8. In support of the demand the union has submitted that the present scales of pay for the abovementioned categories were introduced in 1946 and slight modifications were made at the end of the year 1955. The result was that they have now become out-dated and fall short of the requirements of present-day conditions; that the present scale of dourness allowance is also low and cannot meet the steep rise that has taken place in the price of commodities. This has resulted in a bit gap between the present earnings of the employees and the actual requirements. It has therefore submitted that radical changes in the wage-structure are therefore essential. Copious citations have been given from various reports in support of the union's claim.
9. The categories involved and the number of persons who are directly covered by the present reference are as follows :-
Firemen and senior firemen ... 290 Tindals ... 41 Motor drivers ... 52 Sub-officers ... 6 Motor mechanics ... 1 Fitters ... 6 Carpenters ... 3 Moochies ... 3------Total ... 402------
The Corporation has on the other hand strongly resisted the demand. It has submitted that it has revised from time to time the wages of these categories consistent with its financial position; that the wages and dearness allowances paid to the fire brigade personnel compare favourably with the wages and dearness allowance paid to these types of personnel elsewhere in India. It has submitted that in a dispute for wages and dearness allowance the relevant factors such as the status and the capacity of the employer and wages in comparable units of the same industry in the same region have to be kept in mind; that the workmen in this department are paid the same dearness allowance as paid to other municipal employees and that the increase of Rs. 5 in dearness allowance for those drawing salary up to Rs. 300 per month has been granted only recently by an award which has been extended to workmen in the fire brigade also; that there is no discrimination so far as dearness allowance is concerned. It has further submitted that the various opinions quoted by the union are inapplicable to service in a local authority like the Corporation with statutory limits with regard to raising of funds and with the obligation to conduct what may be termed unremunerative or unproductive work or operations. It has denied that the Corporations is in a sound financial position and can meet the demand in full or in part without financial difficulties. It has in this connexion submitted that the Corporation's right to raise funds and the extent to which it can raise funds is strictly limited and that the corporation is levying the maximum which it can under the Act.
10. To a certain extent I agree with the various submissions made by the Corporation. A statutory body like the corporation has limits as to raising funds to conduct what may be termed unremunerative or unproductive operations and the questions for the wage increase must be approached from the point of the capacity of the Corporation to pay. It may also be mentioned that in a wage dispute of this kind one must keep an overall picture of all the categories of persons employed by the Corporation and cannot look at the burden with reference only to persons covered by the particular reference. There must also be certain amount of harmony between the wages paid by the Corporation to employees in the various departments and this must not be disturbed too much so as to amount to discrimination between various employees in the different departments which might lead to considerable discount and heart-burning and bickerings. The question therefore in the present instance must be approached not from any abstract point of view but from the point of view whether the workers in this department are being paid wages commensurate to what the Corporation pays to workers to other departments. It does not appear to me to be true that the wages of the workers who are covered by this reference have not been adequately revised from time to time. The Corporation has produced a certain chart in its written statement which I shall reproduce later to show how wages have been revised from time to time. I have also been taken at the time of the hearing through the various wages revisions of the categories of employees in other department not covered by the present reference and these have been compared with the revision of scales effected in the case of the present categories.
11. It appears that the Bombay Municipal Corporation by a resolution No. 478, dated 2 August, 1957 appointed a 21-member committee popularly known wage-structure committee to go exhaustively into the entire wage-structure of municipal employees, their work and other service conditions and to make suitable recommendations for acceptance by the Corporation. The said committee consisted of representatives of various parties in the Corporation and included many prominent trade union leaders from the various parties. An almost unanimous report has been submitted by the said committee after a careful consideration of factors involved and after collecting voluminuous comparative data and the extent of the financial implications. As observed by them.
'they were entrusted with a difficult job of working out the wage-structure for an organization like the Bombay Municipal Corporation which was centering to the civic needs of nearly 4 million people spread over an area of nearly 169 square miles, and having under it nearly about 40,000 employees engaged in diverse duties and a wide range of avocations'.
I am in this award resisting the temptation of reproducing from the said report as it may be a little unfair to the said committee to reproduce some parts and not the others. For my purpose all that I need state is that after going into the whole questions the said committee has submitted an unanimous report as late as on 9 March, 1959 and their recommendations have been accepted by the Corporation. In making the report they had on the one hand to equate the resources of Corporation to the needs of its employees. They had also keep in mind the demands of the various categories inter se. They have made unanimous recommendation which have been accepted by the Corporation. I do not think I would be justified in disturbing those recommendations except for very good reasons. I have carefully considered the various submissions which have been made on behalf of the union. I have also carefully examined the chart of increases given to various categories by the Corporation from time to time. I am satisfied that no strong case has been made out for my tampering with the recommendations of the said committee in respect of wage-scales for these categories of workers. It is not true that scales of these categories have not been revised from time to time. The following chart reproduced below including the latest recommendation of the committee shows that the said statement of the union is not true :-
I am also satisfied that the wages paid to the firemen in Bombay compare favourably with the wages paid to their counterparts in other parts of India. Thus wages paid to the main categories, namely, firemen and tindals or leading fireman who form the bulk of the personnel in the following centres are :-
Firemen Tindals or leading Motor Fireman drivers Bombay ... 60 - 3 - 78 - E.B. - 4 85 - 5 - 115 ... 85 - 5 - 110 - E.B.- 90 - S.G. - 5 - 100 5 - 130. West Bengal ... 55 - 2 - 87 - 3 - 90 ... 75 - 4 - 115 ... 90 - 5 - 140. Madras ... 20 - 1/2 - 40* ... 30 - 1 - 40** ... 35 - 1 - 45*** Delhi ... 35 - 1 - 50 - S.G. - 40 55 - 3 - 85 ... 60 - 5/2 - 75.1 - 50 - 2 - 60. Ahmedabad ... 35 - 1 - 39 - 1 1/2 - 60 50 - 2 - 70 ... 60 - 4 - 100. * Plus free quarters or house-rent allowance of Rs. 10.
** Plus free quarters or house-rent allowance of Rs. 15.
*** Plus free quarters or house-rent allowance of Rs. 10.
12. It has been urged again that in the case of some of the categories the said committee has introduced categories the said committee has introduced efficiency bars where none existed and that many of the workers have been adversely affected by reason thereof. Efficiency bars have been introduced by the committee in the case of a large number of categories where none existed before. Completely abolishing them therefore would in my opinion upset the whole scheme of the said committee. In the case of fireman original maximum was Rs. 75 and the efficiency bar has been introduced only after Rs. 78 and in their case it cannot be said that they have been affected adversely. No efficiency bar has been introduced in the case of tindals, while in the case of drivers it has been introduced after Rs. 110 whereas their original maximum without an efficiency bar was Rs. 120. In the case of sub-officers the efficiency bar has been introduced only after their present maximum, that is, Rs. 165. In the case of fitters their original maximum without efficiency bar was Rs. 115, whereas now the efficiency bar has been introduced at Rs. 105. Likewise for carpenters an efficiency bar has been introduced at Rs. 78, when their original maximum without one was Rs. 80. Even in the case of a moochie the efficiency bar has been introduced at Rs. 70, whereas their present maximum is Rs. 65. Whilst I am not prepared to say that the scheme introduced by the committee is wrong in view of the strong feeling of the workers in this connexion, it appears to me fair that efficiency bars in the case of some of the categories requires to be slightly moved further to avoid adverse effects. I thus confirm the wage-scales adverse effects. I thus confirm the wage-scales as approved by the said committee which have now been introduced but direct that in the case of the drivers the efficiency bar should be after Rs. 120 and not Rs. 110. In the case of the fitter it should be after Rs. 115 and not after Rs. 105, while in the case of carpenters it should come after Rs. 82 and not after Rs. 80. I also direct that the efficiency bar should be very sparingly used and that it should be used only to stagger such personnel in whole work deterioration is noticeable or such of those who are inefficient. I further direct that even after a person is stopped at the efficiency bar, such of the persons who improve should be allowed to cross the efficiency bar and proper opportunities be given to them for the purpose.
13. I shall now deal with the question of overtime. The committee recommended that so long as the 24 hours duty system continued a special pay of Rs. 15 per month be given to those employees whose minimum is Rs. 60 in the new grade and a special pay of Rs. 30 per month to tindals, drivers, and sub-officers doing operational duties. The union has submitted that overtime awarded is too low. It has further submitted that whereas in the case of tindals and drivers the overtime of Rs. 30 in the earlier stages works up to more then 35 per cent, it works upto 25 per cent in the case of firemen in the beginning and the percentage progressively declines as salary increases. It may be mentioned here that Rs. 30 per month is directed to be paid to the tindals, drivers and sun-officers. The minimum of a sub-officer is Rs. 125 and in his case the percentage works upto much less than 25. It has also to be borne in mine that this special payment is not in the nature of overtime payment. This special payment is only made not because the workers have to actually work but because they are expected to be in the premises available for duty for all the 24 hours of the day. I have already come to the conclusion that the actual working hours of the firemen are ordinarily on an average considerably less than 8 hours per day and that the occasions when they exceed more than 8 hour per day are rare. Whilst what has been recommended for the tindals, drivers and sub-officers does not appear to be improper, it does appear to me that Rs. 15 recommended for the firemen is rather low. I therefore direct that firemen should, in place of the present Rs. 15, be paid a special pay of Rs. 18 or 25 per cent of their basic wages whichever is higher. It may be made clear that this special payment should be continued so long as the present 24 hours duty system continues and not thereafter. The allowance should be paid retrospectively with effect from 1 April, 1959 and the difference paid to the workers within 6 weeks from the date this award becomes enforceable.
Demand 3 is as follows :
'Employees should not be made to contribute to the pension fund and the contributions recovered from the present employees should be refunded to the employees who are in the employment of the Bombay Fire Brigade.'
14. The union has submitted that the demand falls under two heads. In the first part it is demanded that the present compulsory contributions to the compassionate allowance which the personnel of the fire brigade alone have been making should be discontinued forthwith. The other part deals with the past accumulations of the contributors who claim that amounts standing to their credit should be refunded. In support of the demand the union has submitted that the fire brigade personnel have been making contributions towards the fund at the rate of 6 pies (3 naye paise) in the rupee on their monthly salaries. This allowance is payable in case of death of the contributor while in service and is payable at the rate of one month's salary calculated on the basis of the average monthly salary during the preceding 3 years of service or if he has completed 3 year's service, calculated on the basis of the average monthly salary during his period of service for each completed year of service. Payment of this allowance at this rate is made in case of contributors who have completed one year's service but not more than 15 year's service. In case of persons who have completed more that 15 years of service, the allowance payable is equal to one month's average salary calculated as aforesaid, for each completed year of service during the first 15 years plus half month's average salary for every additional year's service subject to a maximum limit of 20 month's salary. The union desires to do away with this contribution on the following two major considerations :
(a) Payment of this allowance arises only in case of death while in service. Hence in spite of heavy contributions made by the members month after month very few of them get benefit of this allowance.
(b) Members eligible for this allowance do not get benefit of the Corporation's contribution towards the provident fund.
But in case of others who do not contribute to this compassionate allowance this benefit is available. This would mean that in spite of heavy contributions made to the compassionate allowance and provident fund, the fire brigade personnel receive from the Corporation the only benefits of special compassionate allowance and that too if certain condition are fulfilled and further that the corporation grants the same. In view of this the union has submitted that its demand should be conceded. The union has further submitted that contributors are bound to ask for refund as it is their own contributions that have been credited and from which the allowance is being paid and that the Corporation has therefore no right to withhold the refund payments.
15. As the exact nature of the union's grievance was not quit clear, I asked the union at the hearing to file a full explanatory note which is now on record of these proceedings. In the same note the union states that before 1920, all the employees of the Municipal Corporation were governed by the pension fund rules. Subsequently the scheme of provident fund was introduced which was applicable to all the municipal employees except the fire brigade employees. In about 1926 the provident fund rules were made compulsory for the municipal employees except the fire brigade employees and for them the pension fund rules continued and for the other employees the pension fund rules were discontinued. Under rules 21 of the Bombay Municipal Corporation Pension Regulations, an employee contributes 6 pies in a rupee towards compassionate allowance and this contribution was compulsory till the introduction of new pension funds rules in 1954. This compassionate allowance is created only out of the contributions of the employees and the widow or the children of an employee are eligible to receive it only if the employee dies while in service and not otherwise. Under rules 8 and 20 the normal pension is given to an employee. As in the case of all other employees under rule 21(vi) of the provident fund rules if an employee dies while in municipal service he is entitled to get a special contribution (known as compassionate allowance under pension rules) from the Corporation if he is contributing to the provident fund under rule 15. It has been submitted that if an employee is contributing under rule 15, then the Corporation contributes an equal amount to the credit of the employee's account under rules 19 and 20 and under rule 22 there is a provision for additional special contribution. Under rule 29 the subscriber to the provident fund gets his normal dues on retirement or on quitting his employment. It is evident therefore that in order to get the special contribution an employee of the Corporation has not to contribute anything towards special contribution fund. Thus if 'A' is working in the municipal commissioner's office and 'B' is working in the fire brigade department, and if both 'A' and 'B' die while in service, the widow or the children of 'A' will get special contribution under provident fund rules for which 'A' has not contributed anything, so also the widow of 'B' will get the compassionate allowance under pension rules but for which 'B' has contributed a large amount. It has further been submitted that majority of the employees of the fire brigade have opted for the new pension rules and are not contributing anything towards the compassionate allowance. However even under the new rules they are entitled to the compassionate allowance. It has also been submitted that there is thus a discrimination between the two sets of municipal employees, namely, those in the fire brigade and others.
16. The Corporation has filed a fairly lengthy reply. It has submitted that prior to the year 1920 there obtained in the municipality a retiring benefit to the municipal employees comprising mainly of a pension scheme of the lines similar to the benefit obtaining in Government service. The labour staff as such was not then eligible to qualify for pension benefits though exception was made in the case of certain categories like havildars, peons, operational staff of the fire brigade, etc., and benefit of the pension scheme. Extend to them along with the other municipal staff belonging to superior service. It was, therefore, mainly with a view to meeting the requirements of the labour staff that a proposal to introduce a provident fund scheme in the municipality was first considered. As it was undesirable that the Corporation should maintain permanently two separate sets of retirement benefit for their employees, viz., the provident fund and the pension, and as public bodies in the city like the port trust and the railways had adopted the provident fund schemes, the Corporation decided to institute with effect from 1 September, 1920 a contributory provident fund for the benefit of all municipal employees replacing the old pension scheme, option being given to the then existing employees to retain the pension benefit. However substitution of the pension scheme by the provident fund was not considered suitable for the fire brigade service particularly in view of the special provisions obtaining in the pension rules for grant of pension to family members of the fire brigade staff in case of death due to duty. Thus employees on the operation side of the fire brigade and other municipal employees who opted to retain the pension benefit continued to be governed by the Bombay Municipal Corporation Pension, etc., Regulations (Old Pension Regulations) until the introduction of the Bombay Municipal Corporation Pension Rules, 1953 (New Pension Rules) when an option was given to them to come under the New Pension Rules, but the majority opted to remain under the old rules. Rules 21 of the Bombay Municipal Corporation Pension Regulations provides that in the case of an employee who elects to contribute towards compassionate allowance at the rate of 6 pies in a rupee on his monthly salary till he has completed 15 year's service, a compassionate allowance calculated on the basis prescribed in the rules, shall be paid for the benefit of his widow and children. This provision applied equally to all municipal employees governed by the said pension regulations irrespective of whether they belonged to the fire brigade department or to other departments of the Corporation. No special fund as such was created for the purpose and it is not true that compassionate allowance is created only out of the contributions of the employees. In actual practice, the expenditure on account of compassionate allowance whenever payable was met out of the current revenues as a liability arising out of the rules and the contributions recovered from employees from month to month were also credited to revenue. The Corporation has further submitted that the comparison sought to be made between
(i) the provident fund scheme which was applicable to persons entering municipal service (other than fire brigade) after 1921 and
(ii) the pension scheme as applicable to the fire brigade staff and to the old employee from other departments who had opted to continue under pension scheme is totally misconceived, for the following reasons :
(1) When the provident fund rules were first framed, no provision for granting special municipal contribution was made while the provision for compassionate allowance already existed under pension regulations.
(2) The provision for grant of special municipal contribution was first added to the provident fund rules only in 1945 and the ground for doing so was that without gratuity, provident fund did not compare favourably with benefits drived under the old pension scheme. By 'benefits under the old pension scheme' it was not meant to refer to the provision for compassionate allowance benefit but to the general benefit comprising the monthly, pensions, etc.
(3) The addition of the rule for special municipal contribution was therefore, not an addition corresponding to the rule for compassionate allowance under pension but was an addition to the municipal contribution which benefit was considered as inadequate without this addition :
(4) The special municipal contribution was to be paid only to such employees as were subscribing to the contributory provident fund and was paid as an addition to the municipal contribution subject to certain conditions regarding service.
(5) Special municipal contribution was payable even in case of resignation, retrenchment, retirement on account of superannuation or ill-health, etc., while the compassionate allowance under pensions was payable only in case of death of the employees.
17. I am satisfied that there is no discrimination between one set of employees and another. It is not at all the complaint of the workers in this reference that the provident fund scheme has not been extended to the operational staff of the fire brigade. If that was the demand, it could have been dealt with on merits, after considering whether the Corporation had valid reasons or not for nor extending the scheme of provident fund to these employees. The benefits arising out of the provident fund scheme and out of the pension scheme are entirely different. One cannot be compare those benefits. The contribution expected therefore from the workers cannot be compared. I see therefore nothing wrong in the Corporation insisting that the fire brigade operational staff should make a contribution in order to earn what is known as compassionate allowance whilst at the same time paying an allowance of a similar nature in the case of a worker without expecting any contribution from him who is governed by the contributory provident fund scheme. It is true that under the new pension scheme now the system of contribution for compassionate allowance is done away with and person who have now opted for the new pension scheme are longer required to make a contribution for earning a right to compassionate allowance. But the benefits which a worker gets under the old and the new pension schemes are totally different and as pointed out by the Corporation the main point of difference between the new and the old is that under the new rules since there is no contribution from the workmen the death-cum-retirement gratuity is paid by reducing the quantum of the pension whereas under the old rules the full pension is paid and the employee have to contribute for a limited period to obtain the compassionate allowance for their dependants. It may be noted that 79.23 per cent of the fire brigade personnel have opted to remain under the old pension rules. The Corporation has at length explained the difference between the old and the new pension rules in Paras. 29 onwards of its written statement. I am also satisfied that the contribution towards compassionate allowance enables them to earn a larger pension and that in the case of the new pension rules where there is no contribution to the compassionate allowance, there is reduction of one-fourth of monthly pensions in consideration of the cover provided by way of payment of death-cum-retirement gratuity. I therefore agree with the Corporation that those who did not opt for the new pension rules did so on the basis that the benefits under the old rules were preferable and that option having been once exercised, it would be contrary to principles to stop the contribution and at the same time allow the pension scales as before. For the same reason also it would be iniquitous to directly any refund of the contribution already collected sine the employees are not prepared to abandon any part of the benefits which they are likely to get under the pension and as they have already had the benefit of the coverage. The demand is therefore rejected. I however recommended that these employees may be again given an option if they so choose to opt for the new pension rules in which event contributions recovered from them after 1 April 1953, if any, may be refunded.