Gujarat High Court
Parabatsinh Jigaji Chavda vs The Ahmedabad Municipal ... on 30 July, 2021
Bench: A.S. Supehia
C/SCA/10044/2019 ORDER DATED: 30/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10044 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4016 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4015 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4017 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4013 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4012 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4011 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4009 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4018 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4020 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4021 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4022 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4024 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4029 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4030 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4028 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4031 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4026 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4027 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4287 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10734 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10735 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10736 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10737 of 2019
Page 1 of 11
Downloaded on : Sun Jan 16 04:32:59 IST 2022
C/SCA/10044/2019 ORDER DATED: 30/07/2021
With
R/SPECIAL CIVIL APPLICATION NO. 10738 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10729 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10730 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10731 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10732 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10733 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10713 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10714 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10715 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10716 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10717 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10718 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10719 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10720 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10739 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10721 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10722 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10723 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10724 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10725 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10726 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10727 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10728 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10042 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10046 of 2019
Page 2 of 11
Downloaded on : Sun Jan 16 04:32:59 IST 2022
C/SCA/10044/2019 ORDER DATED: 30/07/2021
With
R/SPECIAL CIVIL APPLICATION NO. 10047 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10049 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10050 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10051 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10052 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10252 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10254 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10255 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10257 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10259 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10260 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10263 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10264 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19440 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19403 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19441 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19436 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19407 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19411 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19424 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19410 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19443 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19412 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19406 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19426 of 2019
Page 3 of 11
Downloaded on : Sun Jan 16 04:32:59 IST 2022
C/SCA/10044/2019 ORDER DATED: 30/07/2021
With
R/SPECIAL CIVIL APPLICATION NO. 19415 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19418 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19417 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19420 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19394 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19427 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19442 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19432 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19435 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19444 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19391 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19414 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19396 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19425 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19395 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19389 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19449 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19453 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19398 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19422 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19409 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19452 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19408 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19429 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19431 of 2019
Page 4 of 11
Downloaded on : Sun Jan 16 04:32:59 IST 2022
C/SCA/10044/2019 ORDER DATED: 30/07/2021
With
R/SPECIAL CIVIL APPLICATION NO. 19402 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19405 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19400 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19390 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19393 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19401 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19423 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19399 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19428 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19437 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19397 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19439 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19421 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19416 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19419 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19448 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19438 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19404 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19451 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19433 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19413 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19445 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19430 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19392 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 147 of 2020
Page 5 of 11
Downloaded on : Sun Jan 16 04:32:59 IST 2022
C/SCA/10044/2019 ORDER DATED: 30/07/2021
With
R/SPECIAL CIVIL APPLICATION NO. 150 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 146 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 151 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 148 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 149 of 2020
==========================================================
PARABATSINH JIGAJI CHAVDA
Versus
THE AHMEDABAD MUNICIPAL CORPORATION
==========================================================
Appearance:
AAKASH D MODI(7449) for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, SR ADVOCATE with MR PARTH PATEL, ADVOCATE
for MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 1,2
MS E.SHAILAJA(2671) for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 30/07/2021
ORAL ORDER
1. Heard learned advocate Mr. Aakash Modi, learned Senior
Advocate Mr. Shalin Mehta with learned advocate Mr. Hemang
Shah for the respective petitioners, learned Senior Advocate
Mr. Kamal Trivedi with learned advocate Mr. Parth Patel,
advocate for Mr. Anuj Trivedi for the respondent No.1 and
learned advocate Ms. E. Shailja for the respondent no.3.
2. The present group of petitions emenate from the
judgment and order dated 17.10.2016 passed in Special Civil
Application No.3711 of 2014 and allied matters. From the facts
as recorded by the Coordinate Bench in the said judgment, it
appears that there are three rounds of litigations between the
employees of the respondent Municipal Corporation and the
petitioners on the issue of grant of benefits of the GPF scheme.
C/SCA/10044/2019 ORDER DATED: 30/07/2021
It is not disputed that the employees / petitioners have
continued as members of EPF Scheme. After examining the
issue threadbare and hearing all the respective parties, the
aforesaid writ petitions were disposed of by the Coordinate
Bench by making following observations and clarifications:
"(i) It will be open to the petitioners to submit appropriate
application seeking shift from the scheme under the to the
scheme of the corporation and application seeking exemption
from the scheme under the Act, under section 17(2) of the Act
or under such other provisions as may be permissible under
the ACT.
(ii) The petitioners will submit such application on or
before 30.11.2016.
(iii) After the Provident Fund Organization receives such
applications from the individual employees of the corporation,
the Provident Fund Organization will consider the said
applications as expeditiously as possible and preferably within
four months after the receipt of the applications, however,
without being influenced by the communication dated
12.3.2004 and shall decide the applications independently on
their merits and in light of the provisions of the Act.
(iv) If upon such consideration of the application, the
Provident Fund Organization comes to the conclusion that the
request by the employees to shift from the scheme under the
Act to the scheme of the corporation and for exemption
deserves to be granted, then appropriate orders will be passed
by the Provident Fund Organization.
(v) If, on account of the provisions under the Act or the
Rules or the scheme, the process invites any cost or other
expenses and administrative charges and if such decision
entails loss of interest to any extent, it will be borne by the
employees/applicants and not the corporation and the
employees shall pay such expenses, costs, etc. to the
Provident Fund Organization within time which may be
C/SCA/10044/2019 ORDER DATED: 30/07/2021
mentioned by the Provident Fund Organization.
(vi) If any administrative formalities are required to be
completed by the corporation, then the corporation would take
such necessary administrative steps as may be required for
the said purpose.
(vi) The benefits of this arrangement will not be available
to the employees who have already retired from the service
before 10.10.2016. With the aforesaid clarifications and
directions, the petitions are disposed. The petitions are partly
allowed. Rule is made absolute to the aforesaid extent."
3. It is pertinent to note that the petitions were disposed of
on the statement made by the learned advocates for the
petitioner that the petitioners would submit applications
seeking exemption from Provident Fund Scheme/ Pension
scheme under the Act of 1952 and will also submit request to
permit them to shift / join the scheme of the Corporation. A
statement was also made that the expense/cost
administrative charges would be borne by them in case such
shifting is permitted. It appears that thereafter, there were
inter-se communications between the Regional Commissioner
and the Corporation with regard to the clarifications issued by
this Court. The most relevant communication would be dated
30.03.2017, which was addressed by the Regional P.F.
Commissioner to the Municipal Commissioner. The relevant
portion of such communication is extracted herein below:
"So far as the petitioner's contention to the effect that the
scheme was made compulsory for employees employed after
1.1.1983, the corporation has tried to counter the said
contention on the ground that the said provision was with
regard to the employees who are not covered /governed by
the Factories Act and the Provident Fund Act whereas the
petitioners are governed by the provisions under the Factories
C/SCA/10044/2019 ORDER DATED: 30/07/2021
Act and the Provident Fund Act and therefore, they were
covered under the statutory scheme and consequently, the
option was offered.
Be that as it may, the fact remains that the petitioners
remained silent and inactive for almost 9 years and during
that period of 9 years, they continued to be the member of
statutory scheme. The petitioners have relied on the
instances where the Provident Fund Organisation granted
exemption to about 18 employees of Workshop Department.
However, in that context, the petitioners conveniently
overlook the fact that when the said 18 employees applied for
exemption and when P.F. Organization granted exemption,
the petitioners did not submit individual applications seeking
exemption from statutory scheme and shifting to the
corporation's scheme.
Another relevant aspect which emerges from the
corporation's reply and submission is that the corporation
itself was never opposed to extending the benefit of the
scheme to the petitioners. The corporation claims that
actually, it was the corporation who thought of framing its
own pension scheme and made it available to its employees
and that, therefore, there could not be any reason for
corporation to not grant /extend the benefit to its own
employees in the Workshop Department, however, despite
the opportunity to exercise option, the petitioners did not opt
for corporation's scheme and that, therefore, any fault cannot
be found with the corporation. There is some substance and
justification in the corporation's contention."
4. From the aforementioned communication, it appears that
the Commissioner has proceeded on the premise that under
Section 17 of the Employees Provident Funds and Misc.
C/SCA/10044/2019 ORDER DATED: 30/07/2021
Provisions Act, 1952, the Provident Fund shall vest in the Board
of Trustees, the trust would be accountable to the EPFO for
maintaining proper accounts and the receipts for payment of
the Provident Fund to the employees and the balance would be
in their custody. It appears that the respondent- Corporation,
has expressed its inability to form the Trust and accordingly
the applications of the petitioners, have remained undecided.
From the communication it is also revealed that the
entitlement of the present petitioners seeking exemption from
the scheme under the EPF is yet not decided because of the
administrative predicament.
5. Today, when the matters are taken up for hearing,
learned senior advocate Mr. Trivedi appearing for the
Corporation has expressed that in case, any decision is taken
against the Corporation, it would be burdened with huge
financial liability. I may clarify that the Coordinate Bench has
observed that the employees, who have retired before the year
2016 will not get such benefits. He has submitted, on
instructions, that the Corporation is ready and willing to
forward the applications of the petitioners after attesting the
same to the Regional Provident Fund Commissioner.
6. Under the circumstances and in view of the fact that the
applications with regard to the entitlement of the petitioners
have remained unforwarded, hence undecided, it is directed
that the respondent Corporation shall forward the applications
of the petitioners after duly attesting them to the Regional
Provident Fund Commissioner, within a period of 8 weeks from
the date of receipt of the present order. The Regional
Provident Fund Commissioner after receipt of such attested
C/SCA/10044/2019 ORDER DATED: 30/07/2021
applications shall decide the entitlement of the petitioners for
GPF Scheme in accordance with law. It is directed that before
any final decision is taken by the Regional Provident Fund
Commissioner, all the concerned parties shall be afforded an
opportunity of hearing to put forward their case. After hearing
all the affected parties, the Regional Provident Fund
Commissioner shall take a final decision within a period of
further 2 months and communicate the same to the concerned
parties. It is clarified that the aforesaid decision shall be
without prejudice to the rights and contentions of all the stake
holders. It would be further open for either of the parties to
challenge such decision if it is adverse to them before the
appropriate forum by initiating appropriate proceedings. In
view of the above, the writ petitions are disposed of. Notice is
discharged.
7. It is also directed that all the parties shall fully cooperate
with the Regional Provident Fund Commissioner. It is observed
that since the petitioners are huge in number, it would be open
for them to appoint their representatives to represent their
case before the Commissioner.
8. Registry to place a copy of this order in each connected
matters.
(A. S. SUPEHIA, J)
MAYA S. CHAUHAN
