Valjibhai Shankarbhai Maheriya vs Ahmedabad Municipal Transport ...

    C/LPA/1480/2022                           JUDGMENT DATED: 23/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO.      1480 of 2022

       In R/SPECIAL CIVIL APPLICATION NO. 19056 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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1    Whether Reporters of Local Papers may be
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the
     fair copy of the judgment ?

4    Whether this case involves a substantial
     question of law as to the interpretation
     of the Constitution of India or any order
     made thereunder ?

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                    VALJIBHAI SHANKARBHAI MAHERIYA
                                Versus
                AHMEDABAD MUNICIPAL TRANSPORT SERVICE
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Appearance:
MR PARESH J BRAHMBHATT(9788) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
          and
          HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                          Date : 23/02/2023

                           ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Page 1 of 10 Downloaded on : Thu Mar 02 20:30:41 IST 2023 C/LPA/1480/2022 JUDGMENT DATED: 23/02/2023 The appellant workman invoked the jurisdiction of the Industrial Tribunal, Ahmedabad. The Tribunal by its judgment and award dated 28.09.2018 allowed the Reference (IT) No. 403 of 2012, holding that the workman was entitled to be under the pension scheme after retirement. It was directed that the workman would be treated to be at member of General Provident Scheme instead of Employees Provident Fund and shall be treated in the prevalent pension scheme.

2. Learned Single Judge by judgment and order dated 05.05.2022 in Special Civil Application No. 19056 of 2019, filed by the respondent Ahmedabad Municipal Transport Service, set aside the judgment and award of the Industrial Tribunal.

3. Noticing the basic facts from the record, the appellant was daily wager conductor serving in Ahmedabad Municipal Transport Service since 01.09.1976 and was made permanent with effect from 11.11.1981. He was in the Contributory Provident Fund Scheme.

3.1 Circular No. 102 of 31.03.1987 came o be issued by the Ahmedabad Municipal Transport Service whereby the policy was adopted to introduce the pension scheme for its employees.

3.2 The appellant was member of the Contributory Provident Fund Scheme. He had applied for voluntary Page 2 of 10 Downloaded on : Thu Mar 02 20:30:41 IST 2023 C/LPA/1480/2022 JUDGMENT DATED: 23/02/2023 retirement on 05.11.2012, which was granted with effect from 01.03.2013. The petitioner approached the Tribunal seeking benefit of pension scheme in light of the said Circular No. 102 dated 31.03.1987 and other attendant Circulars on the subject.

3.3 Before the Tribunal, Circular No. 102 dated 31.03.1987 was on record at Exhibit 13. Also was in consideration before the Industrial Tribunal the subsequent Circular dated 03.11.1987 at Exhibit 19. Circular dated 31.03.1987 also figures on record of the present Letters Patent Appeal.

3.4 In paragraph 8 of judgment and award, while discussing the claim and entitlement of the workman, the Industrial Tribunal extensively referred to the stipulations in the said Circular No.102. The Circular inter alia mentioned that the pension scheme was brought in respect of those employees to whom the family pension scheme was not applicable. The Circular offered and option to the employees to remain under the Contributory Provident Fund or to opt for pension scheme.

3.5 An Ekrarnama was required to be submitted by the employees to the employer. Such Ekrarnama, as provided in Circular No.102 goes, was to be given by the employees who wanted to continue in Contributory Provident Fund. It was expressly contemplated that all other employees who did not submit such ekrarnama opting for Contributory Provident Fund would be Page 3 of 10 Downloaded on : Thu Mar 02 20:30:41 IST 2023 C/LPA/1480/2022 JUDGMENT DATED: 23/02/2023 treated to be considered to have exercised the option for remaining under the pension scheme. The option of such kind was to be exercised before particular date.

3.6 Thus, what was instructed to the employees by virtue of the said Circular was that if the employee concerned wanted to be under the Contributory Provident Fund, then such employee would be required to submit an Ekrarnama. In the alternative, the employee was to be automatically treated to be covered in the pension scheme.

3.7 Another Circular appears to have been issued by the respondent herein, which was dated 03.11.1987. The Tribunal considered the same to observe that it did not alter the instructions given in Circular No. 102, but it was of reiterative nature. Finally, the Tribunal allowed the reference of the workman.

4. While setting aside the judgment and award of the Tribunal, learned Single Judge relied on the order of the Division Bench in Karl Marx General Labour Union vs. Ahmedabad Municipal Corporation in Letters Patent Appeal No. 1245 of 2014 decided as per the judgment dated 15.06.2015. The view taken by the Division Bench was that since the employee had not opted for General Provident Fund Scheme, they could not be given the benefit of the scheme.

5. As could be immediately noticed, when learned Page 4 of 10 Downloaded on : Thu Mar 02 20:30:41 IST 2023 C/LPA/1480/2022 JUDGMENT DATED: 23/02/2023 advocate Mr. P.J.Brahmbhatt relied on the decision of the Division Bench of this Court in Manager Vs. Secretary being Letters Patent Appeal No. 667 of 2021 decided on 20.09.2021 that the issue was dealt with by the Division Bench in the said judgment in Manager (supra) and the same was also confirmed by the Hon'ble Supreme Court in Special Leave to Appeal (C) No. 4965/2022 as per the order dated 25.07.2022.

5.1 The very Circular No. 102 dated 31.03.1987 was in limelight in Manager (supra) for its applicability in relation to the grant of benefit of pension scheme to the employees of the Corporation. The Division Bench in Manager (supra) had been considering the validity of the judgment and award passed by the Industrial Tribunal whereby the reference of the second party-workman was allowed as is done in the present scheme, the benefit of pension was granted to the workman.

5.2 The controversy was identical, as could be gathered from the following observations in paragraph 3.3 of the order, "The Industrial Tribunal considered circular No.102 dated 31.3.1987 which was at Exhibit 13 which threw light as to whether the application of the respondent workman for joining pension scheme was liable to be accepted. The said circular provided about giving of option to the employees either they join in the Contributory Provident Fund or in the pension scheme. In that regard Ekrarnama was required to be submitted by Page 5 of 10 Downloaded on : Thu Mar 02 20:30:41 IST 2023 C/LPA/1480/2022 JUDGMENT DATED: 23/02/2023 the employees. The circular which was quoted by the Industrial Tribunal provided that the Ekrarnama was needed to be filled up by those employees who would opt to continue in the Contributory Provident Fund. It was contemplated that all other employees would be treated to have opted for pension scheme."

5.3 Also considered by the Division Bench in Manager (supra) in same paragraph 3.3 was the subsequent Circular dated 03.11.1987, "There was yet another circular No.63 dated 3.11.1987 at Exhibit 19 before the Industrial Tribunal which again clarified with reference to the earlier circulars that those employees who did not filled up the forms who became members of the Contributory Provident Fund, would continue in the pension scheme and that there would be no change in that regard. The base of the other circulars at Exhibit 14 and Exhibit 18 on record of the Industrial Tribunal related to the extension of period for accepting the option of pension scheme. On the bases of the circulars on record as above, Industrial Tribunal recorded finding that it is not compulsory for every employees to fill up the Ekrarnama for getting the benefit of pension scheme."

5.4 Having noticed the scope and effect of the said Circular, the Division Bench in Manager (supra) proceeded to consider the decisions cited by the employer to further observe in paragraph 4.1, "In Union of India and Another Vs. S.L.Verma and Others [(2006) 12 SCC 53], the Supreme Court considered the applicability of pension scheme or Contributory Provident Fund scheme in the context of Office Memorandum of Government of India dated 1.5.1987. It contained the provision Page 6 of 10 Downloaded on : Thu Mar 02 20:30:41 IST 2023 C/LPA/1480/2022 JUDGMENT DATED: 23/02/2023 that the Contributory Provident Fund beneficiaries would exercise option by particular date to continue under Contributory Provident Fund scheme, even otherwise the employee would be deemed to have come over to the pension scheme. Certain employees failed to give their option for Contributory Provident Fund scheme until the cut off date, for that purpose the Supreme Court held that respondents having not given their option by 30.9.1987 would continue to governed by Contributory Provident Fund scheme and they became members of pension scheme by virtue of legal fiction created by the Office Memorandum dated 1.5.1987."

5.5 It was recapitulated by the Court that Circular No. 102 dated 31.03.1987 contained provision on the similar lines. It was thus observed in paragraph 5, "When the facts of the present case are revisited, circular No.102 dated 31.3.1987 contained provision on the similar lines as was found in the Government of India's Office Memorandum which was considered by the Supreme Court under the circular No.102, also the provision was unequivocal that in the event any employee does not give option, will be continued to be governed under the pension scheme. The Ekrarnama was required to be filled up only by those employees who wanted to opt for Contributory Provident Fund scheme."

6. Learned advocate for the respondent harped on the decisions of the Division Bench referred to in Karl Marx General Labour Union (supra). Another judgement in Ahmedabad Municipal Corporation vs. Mamta Anjan Mazmudar being Letters Patent Appeal No. 736 of 2020 dated 12.10.2020 was sought to be pressed into service by learned advocate for the respondent.

C/LPA/1480/2022 JUDGMENT DATED: 23/02/2023 He then even proceeded to rely on the decision of the learned Single Judge in Bindukumari Devdas Christian vs. State of Gujarat Special Civil Application No. 8735 of 2017 dated 18.04.2022 to submit that in the impugned judgment and order, learned Single Judge was justified in setting aside the award of the Tribunal and thus to deny relief granted to the workman.

6.1 It was vehemently submitted by learned advocate for the respondent that subsequent Circular was overlooked by Division Bench in Manager (supra), which was considered in Karl Marx General Labour Union (supra) and Mamta Anjan Mazmudar (supra). This submission is plainly meritless inasmuch as the not only Circular dated 31.03.1987 was considered in Manager (supra), but subsequent Circular dated 03.11.1987 was also considered for its effect and import by the Division Bench. As already noted, both these Circulars were before the Industrial Tribunal also and were duly taken into account for its import and effect. Thus, they were considered both by the Tribunal as well as the Court in Manager (supra).

6.2 Yet another submission was canvassed by learned advocate for the respondent that the aforesaid decisions also of the Division Bench in Karl Marx General Labour Union (supra) and Mamta Anjan Mazmudar (supra) could not be said to be a good law. This submission could be made only by disregarding teh fact that the decision in Manager (supra) by the Page 8 of 10 Downloaded on : Thu Mar 02 20:30:41 IST 2023 C/LPA/1480/2022 JUDGMENT DATED: 23/02/2023 Division Bench came to be confirmed by the Supreme Court in Special Leave to Appeal (C) No. 4965/2022 as mentioned above.

7. The decisions in Karl Marx General Labour Union (supra) and Mamta Anjan Mazmudar (supra) could not have been pressed, which would amount to turning blind eyes to decision in Manager (supra) confirmed by the Supreme Court, which therefore is binding to this Court.

7.1 The confirmation of the decision in Manager (supra) by the Apex Court is an outweighing aspect which would dislodge all the contentions on behalf of the respondents. Once the law is laid down by the Division Bench, considering the Circulars dated 31.03.1987 and 03.11.1987 on the subject and the same view stands confirmed by the Supreme Court, the decision becomes binding to this Court. It has to be followed by this Court.

8. In the aforesaid view, the impugned judgment and order of the learned Single Judge deserves to be set aside.

8.1 Accordingly, the judgment and order dated 05.05.2022 in Special Civil Application No. 19056 of 2019 is set aside.

9. The judgment and award of the Industrial Tribunal stands to operate with modification of time Page 9 of 10 Downloaded on : Thu Mar 02 20:30:41 IST 2023 C/LPA/1480/2022 JUDGMENT DATED: 23/02/2023 limit for compliance, which shall be 6 weeks from today.

10. The Letters Patent Appeal is allowed.

Direct service is permitted.

(N.V.ANJARIA, J) (NIRAL R. MEHTA,J) BIJOY B. PILLAI Page 10 of 10 Downloaded on : Thu Mar 02 20:30:41 IST 2023