Manager vs Secretary
2021 Latest Caselaw 14466 Guj

     C/LPA/667/2021                            ORDER DATED: 20/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 667 of 2021

           In R/SPECIAL CIVIL APPLICATION NO. 2475 of 2018

                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
              In R/LETTERS PATENT APPEAL NO. 667 of 2021
==========================================================
                              MANAGER
                               Versus
                             SECRETARY
==========================================================
Appearance:
MR DEEP D VYAS(3869) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR PARESH J BRAHMBHATT(9788) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE DR. JUSTICE A. P. THAKER

                           Date : 20/09/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.Deep Vyas for the appellant- Ahmedabad Municipal Transport Service and learned advocate Mr.P.J.Brahmbhatt for the respondent No.1- Karmachari Sangh. Industrial Tribunal arraigned as respondent No.2.

2. This Letters Patent Appeal under Clause 15 of the Letters Patent Act is directed against order dated 17.12.2018 passed by learned Single Judge in Special Civil Application No.2475 of 2018 whereby learned Single Judge dismissed the Special Civil Application refusing to set aside the orders of Industrial Tribunal in the main petition.

3. In the Special Civil Application what is prayed by the appellant- original petitioner was to set aside judgment and

C/LPA/667/2021 ORDER DATED: 20/09/2021

award dated 17.9.2016 passed by the Industrial Tribunal, Ahmedabad in Reference (IT) No.346 of 2012, whereby the Industrial Tribunal allowed the Reference of the second party workman to direct the Employer- appellant herein to pay to the workman the benefits of pension scheme as per the provisions of circular Exhibit 13. It was further directed that the workman shall refund with interest the amount of Contributory Provident Fund received by him as a condition to be entitled the pension scheme benefits.

3.1 It appears that the review came to be filed by the employer and against the judgment and award which the application No.2 of 2017 was also dismissed on 17.9.2016. Both the orders came to be impugned in the Special Civil Application.

3.2 Through the respondent Union the workman raised the Reference as to whether the application of the workman for joining the pension scheme should be accepted or not and whether workman should be paid pensionary benefits.

3.3 The workman had joined the service on 12.5.1979 and he was made permanent in the year 1986. The workman retired on 30.6.2013. On 2.1.2012, the workman wanted the benefits of pension scheme. The pension scheme was brought into force for the employees in the year 1997 with effect from 1.1.1983. The request of the workman for joining the pension scheme was refused by the employer on the ground that workman had not made an application and had not given any option for pension scheme. 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

C/LPA/667/2021 ORDER DATED: 20/09/2021

in the Contributory Provident Fund or in the pension scheme. In that regard Ekrarnama was required to be submitted by 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. 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.

3.4 The reference was accordingly allowed directing the first party employer to extent and pay the benefits of pension scheme to the workman. Learned Single Judge considered the judgment and award of the Labour Court and the documentary material which was before the Tribunal regarding introduction of the pension scheme as reflected in the aforementioned circular dated 31.3.1987, the copy of which was also on the part of the record of the petition. Learned Single Judge rightly observed that those employees who wanted to continue with Contributory Provident Fund were required to submit option and all other employees shall be considered to have been covered in the pension scheme. Learned Single Judge noted that it was not the

C/LPA/667/2021 ORDER DATED: 20/09/2021

case of the petitioner that respondent workman had ever exercised any option to continue with Contributory Provident Fund. Learned Single Judge also inquired to verify there was any amendment in the original pension scheme reflected in Circular No.102 dated 31.3.1987. Learned advocate for the appellant replied in negative to state that there was no amendment and the only scheme was the one reflected in the said circular.

3.5 Final findings came to be recorded as under by learned Single Judge.

"The Court finds that such circulars or the notices issued from time-to-time by the petitioner will not take away the very base of the original circular which provided for exercise of option only by those employees who wanted to continue in CPF and not for those employees, who wanted to be treated in the pension scheme.

15:21:22 IST 2021 C/SCA/2475/2018 ORDER concerned employee has not exercised any option at any point of time in terms of the original circular, he would continue to be treated in the pension scheme. It is no ground to say that contribution from his salary had gone to the CPF all throughout during his service tenure and, therefore, he could not be made entitle to the benefits of pension scheme. If his contribution was taken towards CPF and if he was paid the funds from the contribution at the end of his service career, he could be asked to return the CPF contribution to get benefit of pension scheme when he never exercised option to continue with the CPF. It is required to note that the reference was made in connection with the dispute raised by the concerned employee to get benefit of the pension scheme before he was retired from service and, therefore, simply because on retirement, he was paid funds from the CPF, such would not make him dis-entitled to get the benefit of the pension scheme."

4. Learned advocate for the appellant relied on certain

C/LPA/667/2021 ORDER DATED: 20/09/2021

decisions including Krishena Kumar Vs. Union of India, [(1990) 4 SCC 207], Union of India and Others Vs. M.K.Sarkar [(2010) 2 SCC 59], National Council of Educational Research and Training Vs. Shyam Babu Maheshwari and Others, [(2011) 6 SCC 412] and Rajastha Rajya Vidyut Vitran Nigam Limited Vs. Dwarka Prasad Koolwal and Others, [(2015) 12 SCC 51], which stand true on their own respective facts for the law laid down therein, however do not have any application to the facts of the present case since the provisions of pension scheme as reflected in the Circular dated 31.3.1987 was clear and rightly applied.

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 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. 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

C/LPA/667/2021 ORDER DATED: 20/09/2021

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. In the above discussion and reasons, the judgment and award of the Labour Court and the consequential impugned order of learned Single Judge confirming the same could be said to be eminently just and proper and requires no interference in the Letters Patent Appeal.

7. The appeal is dismissed summarily.

ORDER IN CIVIL APPLICATION

In view of disposal of the Letters Patent Appeal, the present Civil Application will not survive. Accordingly, it is disposed of.

(N.V.ANJARIA, J)

(DR. A. P. THAKER, J) Manshi