Patel Dashrathbhai Ambalal vs The Director, Gujarat State Seed ...
2021 Latest Caselaw 8036 Guj

     C/SCA/10108/2019                                 JUDGMENT DATED: 08/07/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10108 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                         Sd/­

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1     Whether Reporters of Local Papers may be allowed to see              NO
      the judgment ?

2     To be referred to the Reporter or not ?                              NO

3     Whether their Lordships wish to see the fair copy of the             NO
      judgment ?

4     Whether this case involves a substantial question of law as          NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

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                    PATEL DASHRATHBHAI AMBALAL
                                Versus
         THE DIRECTOR, GUJARAT STATE SEED CERTIFICATE AGENCY
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Appearance:
MR JV JAPEE(358) for the Petitioner(s) No. 1
MR HIREN P VYAS(2269) for the Respondent(s) No. 1
MS E.SHAILAJA(2671) for the Respondent(s) No. 2
MS SEJAL H VYAS(3211) for the Respondent(s) No. 1
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    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 08/07/2021

                               ORAL JUDGMENT

1. RULE. Learned Advocate, Mr Hiren P. Vyas waives service of rule on behalf of the respondent No.1 and learned Advocate, Ms. E.Shailaja waives service of rule on behalf of the respondent No.2.

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2. This petition is filed under Article­226 of the Constitution of India seeking direction to the respondent Authorities to grant pensionary benefits under the EPF scheme by taking into consideration the directions issued by this Court vide order dated 13­08­2015 passed in Special Civil Application No.17160 of 2014, which pertains to the employees similarly situated and working under the respondent No.1­ Gujarat State Seed Certificate Agency.

3. It is the case of the petitioner that the petitioner was originally employee of the State Government and was subsequently sent on deputation the respondent No.1­ Agency and after being given option, was absorbed in the Agency. Though the petitioner prior to his absorption in the Agency was covered under the General Provident Fund scheme from date of his appointment with the State Government. The petitioner on account of his absorption with the respondent No.1­ Agency is covered under the EPF scheme from the year 2003 till retirement. It is the case of the petitioner that the petitioner was absorbed in the respondent No.1­ Agency in the year 1981, but the decision was taken on the option of absorption in the year 2001, injustice is meted against the petitioner by treating him to be the employee of the respondent No.1­ Agency covered under the EPF scheme only from the year 2003.

4. Learned Advocate for the petitioner relies upon the decision of this Court dated 13­08­2015 passed in Special Civil Application No.17160 of 2014 and submitted that the petitioner was identically situated after considering all the parameters and the submissions made by both the sides including the respondent No.1­ Agency. The petitioner therein was held to be entitled to be treated as the employee of the respondent No.1­ Agency from the date of his actual absorption and the petitioner to be also treated as the member of the EPF scheme from such time.

5. Learned Advocate for the petitioner submitted that the petitioner is ready and willing to undertake the financial obligation to that the

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petitioner is liable in case of shifting from the GPF to EPF scheme. Meaning thereby, whatever amount has been received by the petitioner towards the benefit under the GPF would be deposited with the EPF scheme with the respondent No.1­ Agency and then the petitioner may be given benefit of being the member of the EPF scheme.

6. Learned Advocate for the respondent No.1­ Agency submitted that though there is the decision of this Court in this regard in case of co­ employee, yet the provisions of EPF scheme under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, would burden the agency for no fault of the Agency and for that purpose, the Court may have to observe that any right created in favour of the petitioner should not adversely affect the the respondent No.1­ Agency.

7. Learned Advocate appearing on behalf of the EPF scheme - respondent no.2 submitted that in case of co­employee cited herein above, the respondent no.2 has already completed formalities and taken necessary decision by affording hearing to all concerned including the respondent No.1­ Agency and therefore, apprehension cited by the respondent No.1­ Agency is unfounded.

8. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the petitioner was originally appointed as Agricultural Supervisor in the Department of Agricultural, State of Gujarat on 04­07­1975. On 16­03­1980, the petitioner was sent on deputation with the respondent No.1­ Agency. While the petitioner was on deputation, the State had offered option to the petitioner and other co­employees who were the Government servants for being absorbed in his Agency and accordingly, the petitioner had exercised his option and worked for the respondent No.1­ Agency for 27 years and 3 months before retired on 30­07­2007.

9. It appears that option for being absorbed given by the petitioner and other employees was decided by the State Government only on 10­09­ 2001, meaning thereby after the period of almost 21 years. However,

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the effect of absorption was given retrospectively. The copy of 10­09­ 2001 is placed on record at Annexure­C. The order of absorption also provides for the Provident Fund Scheme in Clause­xiv, which reads as under:

"(xiv). Provident Fund:

The amount of subscription together with interest thereon standing to credit to these employees in the General Provident Fund Account will be transferred to their new Provident Fund Account under Gujarat State Seed Certification Agency with its consent. Once such a transfer of Provident Fund balance has taken place, the concerned employee will be subject to the provident fund rules of the Gujarat State Seed Certification Agency and not to the Provident Fund at the Govt. of Gujarat.

In case any doubt or difference of opinion arrives regarding interpretation of the terms and conditions, set out in this, the matter shall be referred to the Finance Department, though the Agriculture & Co­ operation Department whose decision shall be final."

10. Therefore, it was the policy of the State for permitting migration of the employee from the General Provident Fund Account to new Provident Fund Account as was adopted by the respondent No.1­ Agency. This Court in CAV Judgment passed in Special Civil Application No.17160 of 2014, dated 13­08­2015, in para­25, 26, 27 and 28, identical facts as observed are as under:

"25. Para12 of the scheme makes it very clear that the superannuation pension would be payable if a member had rendered eligible service of 10 years or more and retires on attaining the age of 58 years. In the present case the applicant rendered about 6 years of eligible service as a member under the scheme. Should he be faulted for the same. As discussed above, he remained in GPF from 1975 to 2003 and then from 2003 till the superannuation he remained in the EPF. If the decision would have been taken by the State Government at an appropriate time then probably this situation would not have cropped up.

26. On the other hand, Mr. Vyas after taking instructions from his client pointed out that the applicant would be eligible to draw pension of Rs.2600 with effect from the date the sanction was accorded. He submitted that the Provident Fund Commissioner will have to calculate the amount of contribution of the employer and employee with penalty. He submitted that even if the agency has to pay pension then the applicant will have to perform his part of the obligations. He also

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pointed out that the applicant will have to fill up form10(C) and 10(D) as provided in the employees pension scheme, 1995.

27. It is a settled law that no citizen should suffer on account of any mistake or laxity on the part of the State Government and more particularly when it comes to the issue of retiral benefits. It may be true that the applicant has withdrawn a substantial amount from his GPF but was he left with any other alternative. He submitted that he was the only earning member in the family with almost five mouths to feed.

28. I am of the view that the applicant cannot be made a victim of such technicalities arising in the matter. Without citing as a precedent and as an exceptional case the agency is directed to consider the case of the applicant for the monthly pension under the scheme as discussed above. It goes without saying that for drawing pension if the applicant has to perform any part of his obligations then he shall do so. It is made clear that if the applicant has to deposit any amount already drawn by him for availing of the pension then he shall act accordingly."

11. Reading of the CAV Judgment dated 13­08­2015 indicates that the facts are very much identical to the facts of the present case and therefore, there is no reason for the Court to adopt the different view.

12. In view of the aforesaid, it is appropriate to hold that the petitioner to be treated as the employee of the respondent No.1­ Agency from the date of his absorption with the respondent No.1­ Agency as approved by order dated 10­09­2001 with retrospective effect. The petitioner therefore, should also to be treated as member of the EPF scheme from the date of his absorption in the respondent No.1­ Agency.

13. The apprehension raised by the respondent No.1­ Agency cannot be brushed aside and therefore, at an appropriate stage, when the proceedings under the provision of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 are undertaken for calculating the benefit of the petitioner, all the contentions of the respondent No.1­ Agency are kept open and the respondent No.1­ Agency may also be heard.

14. At request of the learned Advocate for the respondent No.2, the respondent No.2 is provided the period of 8 weeks to complete exercise

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and convey the outcome to the petitioner. Thereafter, the petitioner shall within period of 4 weeks shall deposit the entire amount as required by the respondent No.2 through the respondent No.1­ Agency. Thereon, the petitioner shall be treated to be as member of EPF scheme as per the decision taken by the respondent No.2.

15. With the aforesaid, the petition stands allowed to the aforesaid extent. Rule is made absolute with no order as to costs.

Direct service is permitted.

Sd/­ (A.Y. KOGJE, J) PARESH SOMPURA