Ahmedabad Municipal Transport ... vs Valjibhai Shankarbhai Maheriya
2022 Latest Caselaw 4730 Guj

     C/SCA/19056/2019                              CAV ORDER DATED: 05/05/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 19056 of 2019

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AHMEDABAD MUNICIPAL TRANSPORT SERVICE Versus VALJIBHAI SHANKARBHAI MAHERIYA ========================================================== Appearance:

MR PARESH J BRAHMBHATT(9788) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 05/05/2022

CAV ORDER

1. By this petition, the Ahmedabad Municipal Transport Service has challenged the award dated 28.09.2018 passed by the Industrial Tribunal at Ahmedabad in Reference (IT) No. 403 of 2012.

2. Facts in brief would indicate that the respondent joined service of the Ahmedabad Municipal Transport Service (AMTS) as a daily wage conductor on 01.09.1976 and was made permanent with effect from 11.11.1981. He was a member of the Contributory Provident Fund Scheme. The Ahmedabad Municipal Transport Service by circular no. 102 dated 31.03.1987 adopted the policy of the Ahmedabad Municipal Corporation and resolved to introduce a pension scheme for its employees. The circular invited options from its employees for continuing with Contributory Provident Fund (CPF) Scheme or opting for pension. The respondent was a member of the CPF scheme. On he applying for voluntary retirement on 05.11.2012, the same was granted with effect from 01.03.2013. CPF amount of Rs.9,08,000/- was in his balance. The respondent approached the Industrial Tribunal,

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Ahmedabad. Aggrieved by the inaction of the petitioner of not responding to his application dated 02.01.2012 for joining pension scheme, the respondent approached the Industrial Tribunal. The case of the respondent was that he having voluntarily retired from service which was accepted from 01.03.2013 he was entitled to pension in accordance with Circular No. 102 dated 31.03.1987. The Tribunal after considering the master circular dated 31.03.1987 which was produced at Ex. 13, and the subsequent circulars at Exs. 21 to 23, the Tribunal held that in accordance with the master circular, it was only the CPF beneficiaries who had to give an undertaking of continuing under the CPF. Therefore, the fact that the respondent had not given such an undertaking automatically brought him over to the pension scheme. The Tribunal accordingly allowed the reference and directed the AMTS to treat the respondent as eligible for pension and directed the petitioner to pay pension accordingly.

3. Mr. H.S. Munshaw, learned counsel for the petitioner would submit that reading the master circular dated 31.03.1987 together with the circulars dated 09.03.1993 and 16.01.1996, it was evident that unless an option for expressly coming over to the pension scheme was exercised, the respondent was not entitled to the benefit of pension scheme.

3.1 Mr. Munshaw would submit that when the master circular is read as a whole option had to be given either to continue in the CPF scheme or opt for pension scheme. From time to time, i.e. on 09.03.1993 and 16.01.1996, the employees were given extension to opt for pension scheme. The respondent did not seek the benefit of these extensions and only when he applied for voluntary retirement, he applied for pension.

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3.2 Mr. Munshaw would submit that after having received CPF amount of Rs.9,08,000/- it was not open for the respondent to turn around and seek the benefit of pension scheme. He would rely on a decision of the co-ordinate bench in Special Civil Application No. 8735 of 2017 dated 18.04.2022. He further relied on a decision rendered in Special Civil Application No. 5799 of 2011 dated 29.06.2012 confirmed in Letters Patent Appeal No. 1245 of 2014 on 15.06.2015. Further reliance was placed on a decision of the Division Bench rendered in Letters Patent Appeal No. 736 of 2020 dated 12.10.2020.

4. Mr. Paresh Brahmbhatt, learned counsel for the respondent would rely on the master circular dated 31.03.1987 and reading the same he would submit that only those who wanted to continue under the CPF were to give an undertaking. In absence of such an undertaking given by the respondent, it was presumed that the respondent was entitled to the benefit of pension scheme.

4.1 Mr. Brahmbhatt would therefore submit that the tribunal committed no error in passing the order granting the benefit of pension. He would also rely on a decision of the Division Bench in Letters Patent Appeal No. 667 of 2021 dated 24.09.2021 which confirmed the order of the learned Single Judge who had confirmed the order of the tribunal in the case of similarly situated employee.

5. Considering the submissions made by learned counsel for the respective parties, what needs to be interpreted is the master circular dated 31.03.1987 together with the circulars of 1993 and 1996. Reading the circulars in conjunction would indicate that what the master circular provided for was on the introduction of the pension scheme by the

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AMTS, the employee had to give an option as to which of the two schemes would they want to be considered for. An undertaking/option was to be given accordingly. The later part of the resolution provided that such undertaking was to be given by only such employees who were willing to continue in the CPF. Otherwise, it was presumed that the employee had opted for the pension scheme.

5.1 On 09.03.1993 and 16.01.1996, the AMTS came out with a resolution pointing out that options were given by a majority of employees to opt for pension scheme and in order to see that the net is widened to bring in more employees under the pension scheme the date for opting for the pension scheme was extended upto 29.02.1996. Reading these circulars therefore would indicate that the tribunal did not read the circulars as a whole but only relied on the later part of the master circular to presume in favour of the respondent. These circulars were a matter of consideration before this court in Special Civil Application No. 5799 of 2011 and in a CAV judgement dated 29.06.2012, a co-ordinate bench of this court held as under:

"9. As can be noted from Circular No.52 of 1.2.1984 issued by the Chief Accountant Department, the sanction was obtained from the State Government on 16.1.1984 for the proposed pension scheme vide Resolution 428 dated 26.7.1983. This came into effect from 1.1.1983. Those employees who joined Municipal Corporation on 1.1.1983 or subsequent thereto were given effect of such pension scheme satisfactorily. However, those who were in the service prior to 1.1.1983 and were in the service on the date on which such circular was issued, were given the option.

It is clearly mentioned that those employees,who were desirous to continue in the CPF Scheme shall have to fill up prescribed form for such an option and shall have to submit

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the same to the Chief Accountant Department after obtaining signature of the officer along with the service book. Such an affidavit was to be filed by only those employees, who were desirous to continue in the CPF Scheme and the rest of the employees were to be treated under the pension scheme. Such an option was to be accepted till 29.4.1984 and no extension was permissible thereafter. They were those employees, who retired on 1.1.1983 and, thereafter were given such an option. There are other circulars periodically issued and last one was of 14.8.2003, which mentioned that there were sufficient particulars given for making an option for CPF Scheme. However, no such option would be accepted nor any change would be made in the computer data in respect of such pension. Subsequent thereto, there was a circular issued by the Finance Department on 13.4.2005 by a specific mentioning that those employees who have joined from CPF to GPF till 14.8.2003 only will have to be treated for the purpose of pension and not the rest.

10. Learned Senior Advocate Mr.S.N.Shelat appearing for learned advocate Mr.Munshaw has fervently submitted that Secretary, Labour Union has no right to file such a petition for and on behalf of employee Minakshiben Kantilal Shah. He further urged that permitting the petitioner to avail the option of GPF, at this stage would open Pendora's Box as the person has consciously opted for CPF Scheme even though various circulars for long duration were issued for the benefit of employees. At this stage, the petitioner cannot insist on issuance of writ of mandamus for the said purpose.

11. As against that Secretary, Labour Union, who represented petitioner Minakshiben Kantilal Shah urges that she has already filed her affidavit in support of the power of attorney granted in favour of the present petitioner. When she has explicitly given power of attorney to the present petitioner appointing him for prosecuting the present petition, no objection could be raised against maintainability of the petition.

12. On thus having heard learned Senior Advocate for the respondent and the power of attorney holder of the petitioner Minakshiben Kantilal Shah, it can be noted that present petitioner and others had preferred Special Civil Application

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Nos.1551 of 2007,15512 of 2011 and 15531 of 2007, whereby vide common order, this Court (Coram: H.K.Rathod, J.) vide order dated 19.6.2007 directed the parties to make a detailed representation to respondent- Corporation and also to furnish copy of the judgment of the Apex Court in the case of Union of India and another vs. SL Verma and others reported in 2007 (112) FLR 697. The Apex Court has held therein that the moment pension scheme comes into effect, question of exercise of option is not much relevant and the employees are entitled for such pension under the pension scheme. The Court further directed the respondent-Corporation to consider such representation as well as decision of the Apex Court by adopting systematic approach and pursuant to such direction representation was also made to the Municipal Corporation to pass a detailed order dated 20.10.2007 and rejected such a request.

13. As can be seen from the rejection of such request, Municipal Corporation also noted that from 25.10.1983 till 29.5.2001 nearly 8 circulars issued. There are nearly 525 employees, who have not opted for the benefit of pension scheme and continued themselves in the CPF Scheme. There are nearly 300 employees, who after 2001, retired under the CPF Scheme. It also can be noted that the petitioner was made aware of 8 circulars as reflected in this rejection order issued time and again, for availing opportunity to opt from either of the two schemes. As no benefit was taken of the pension scheme when sufficient opportunities had been already given and no option having been given for availing of the pension scheme, additional opportunity was denied. The Municipal Corporation also noted the fact that opinion of the Senior Counsel was obtained in respect of the pension scheme.

14. Dealing firstly with the maintainability of the petition, as the employee concerned has already given power of attorney in favour of Mr.Hemant B.Gor for him to contest the present petition for and on behalf of petitioner, submission of the respondent-Corporation on the ground of technicalities is not being entertained.

15. With regard to the challenge to the decision of the

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Commissioner of denying any relief pursuant to the representation made by the employees subsequent to decision of this Court in earlier petitions preferred, vital point that is required to be regarded is that for nearly 18 years 8 Circulars were issued periodically for employees to opt from either of the schemes. In such circumstances, nobody can claim to be unaware of implication of such scheme. As rightly pointed out by the petitioner that 1984 circular does mention that only those who opt for CPF Scheme need to give an option form and the rest of them would be covered under GPF Scheme by default. The petitioner has not specifically made a mention anywhere whether explicitly any such option was given by her or not. Considering the fact that earlier petitions were also preferred and this petition is preferred as well challenging the decision of the respondent-Corporation of denying the benefit of GPF Scheme, it can be presumed that she had already filed an option which, at later date, is not permitted to be changed. If Corporation, by issuance of 8 circulars, made available to its employees periodically, the options of two scheme and the petitioner on having once opted for such a scheme chose at a much later date to opt out of it, denial on the part of the Municipal Corporation on representation cannot be interfered with.

16. On the ground of equality, challenge is made to the inclusion of 96 employees beyond the stipulated period, who were permitted to avail the option of GPF Scheme. There is sufficient explanation given by the respondent-Corporation in the affidavit-in-reply, whereby a categorical mention is made of the fact that the option was already given by these employees. However, that had not reached the Finance Department and the data conspicuously reflected the employees having made out the option much prior to the expiry of the stipulated period. Therefore, availing the benefit of GPF Scheme to those 96 employees cannot weigh with this Court as far as the case of the present petitioner is concerned.

17. In an institution where pension scheme was sanctioned making it effective from 1.1.1983 by the State Government any dilemma on the part of the employees cannot be entertained at a sweet will of such employee as that would

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have far reaching effect on the financial aspect of the respondentCorporation and, therefore, those employees, who have not acted within time bound schedule or if once having already acted upon the schedule, cannot be allowed to approbate or reprobate."

That decision was confirmed in the Division Bench.

5.2 Reliance placed by Mr. Brahmbhatt on the order dated 20.09.2021 in Letters Patent Appeal No. 667 of 2021 interpreting the same master circular considered the same in the manner in which Mr. Brahmbhatt would want this court to so interpret but the language of the circular entirely was not considered. The decision in the case of Special Civil Application No. 5799 of 2011 which was confirmed by the Division Bench in appeal was not placed for consideration therein.

6. A Division Bench of this court in Letters Patent Appeal No. 736 of 2020 was called upon to interpret the master circular of 1984 wherein the Division Bench clearly opined as under in para 8 (ii):

"(ii) The observation made by the learned Single Judge to the extent that failure to apply for the General Provident Fund scheme would mean that the employee would be covered by the General Provident Fund scheme and not by the Contributory Provident Fund would stand substituted as held by us that it was essential to give an option if the employee wanted to be covered under the General Provident Fund scheme and in the event of non-compliance as above, the employee would be deemed to be covered by the Contributory Provident Fund"

6.1 In other words, what the Division Bench observed was that failure to apply for GPF scheme would not automatically give him the benefit of

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the scheme and the employee would be deemed to be covered by CPF. Even a co-ordinate bench of this court in Special Civil Application No. 8735 of 2017 by an oral judgmeent of 18.04.2022 after considering the decision of the Apex Court in the case of Union of India and Another vs. SL Verma and Others reported in (2006) 12 SCC 53 held as under:

"6. Having heard the learned Advocates for the parties and having perused the material on record, it is revealed from the record that the present petitioners were appointed in the year 1982 on the post of Staff Nurse and at that point of time, the CPF Scheme was in existence. Pursuant to their appointment, the petitioners were granted promotion from time to time.

6.1 It appears that Respondent No.3-AMC issued a Circular on 02.02.1984, a copy whereof is produced at Page-33 of the compilation, which provided that the employees of Respondent No.3-AMC, who joined services after 01.01.1983 shall be entitled to and eligible to get the benefits of the Pension Scheme, automatically. However, the employees, i.e. like the present petitioners, who had joined services prior to 01.01.1983, were required to fill-up an Option Form, clearly giving their option, as to whether he / she wish to continue with the existing CPF Scheme or wish to take the benefit of the Pension Scheme.

6.2 It is the case of the present petitioners that as they were interested in joining the Pension Scheme, even if, they did not fill-up the Option Form exercising their option, they are covered by the Pension Scheme, automatically.

6.2.1 It is pertinent to note that Respondent No.3-AMC has specifically stated in its affidavit-inreply that as there was some confusion with regard to the provisions of the CPF Scheme and the Pension Scheme, pursuant to the issuance of the Circular dated 02.02.1984, Respondent No.3-AMC issued another Circular dated 28.03.1984, whereby, the employees were directed to exercise their option and to intimate the authorities about their option to either continue with the CPF Scheme or the avail the benefits of the Pension

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Scheme.

6.2.2 A copy of the circular dated 28.03.1984 is produced at Page-92 of the compilation.

6.2.3 Respondent No.3-AMC also stated in its reply that vide Circular dated 31.05.1984, the employees were given an opportunity to exercise their option for either the CPF Scheme or the Pension Scheme latest by 30.06.1984. In the said Circular it was specifically stated that the concerned employee shall have to fill-up the Consent Form and have to exercise the option. It appears that the said time-limit was, thereafter, was extended vide different circulars from time to time. All the relevant circulars are produced on the record.

6.3 At this stage, it may be noted that the petitioners did not file any rejoinder to the affidavit-in-reply filed by Respondent No.3-AMC.

6.4 In view of the above, now, it is not open to the petitioners to rely on the Circular dated 02.02.1984. Despite of the fact that Respondent No.3- AMC issued various circulars from time to time and extended the time-limit for exercising the option to either continue with the CPF Scheme or to join the Pension Scheme, the petitioners did not fill-up the relevant form, exercising their option for either to continue with the CPF Scheme or to join the Pension Scheme. On the contrary, from the record it appears that the contribution towards the CPF Scheme was regularly deducted from the salaries of the petitioners and the share of the employer was also deposited in their respective CPF Account and the petitioners were very well aware about the same, all throughout. Despite that, at no point of time, the petitioners made any representation to the authorities to permit them to switch to the Pension Scheme from the CPF Scheme and the only representation was made by Petitioner No.1, herein, on 06.04.2017, i.e. just before one month from the date of her retirement, and therefore, it was rightly came to be rejected by Respondent Nos. 3 and 4.

6.5 Thus, looking to the conduct of the present petitioners, it clearly transpires that the petitioners remained negligent and waived all their rights of change of option from the CPF

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Scheme to the Pension Scheme.

6.6 At this stage, it would be relevant to refer to the decision of this Court, Dated: 08.10.2015, rendered in Letters Patent Appeal No. 1252 of 2015, wherein, under the similar circumstances, the Division Bench of this Court observed and held thus:

"8. We may also record that on the similar issue, in respect of other employees of the respondent Corporation, the question was considered by the Division Bench of this Court (M.R. Shah & A. G. Uraizee, J.J.) in LPA No.1245 of 2014 and this Court, for the reasons recorded in the order, did not interfere with the order passed by the learned Single Judge. It may also be recorded that on the aspect of conduct of the employee to remain as the member of CPF until reaching the age of superannuation and thereafter to contend the rights as member of GPF had also come up for consideration before this Court in LPA No.1037 of 2014, decided on 25.11.2014 in the case of Rajesh Girdharlal Bhatt Vs. State of Gujarat & Anr., wherein at paragraphs 10 and 11, it was observed thus:-

"10.The original petitioner after having joined the service in the year 1997, though might have raised the grievance in the year 2000, but as per the additional affidavit, it appears that he was communicated the rejection of his proposal to treat the length of service with the Board vide communication dated 22.05.2003. Thereafter, he pursued the matter and raised the grievance for the first time in the year 2011, roughly after about 8 years from the date of the communication of the decision of the authority that his request for considering the length of service with the Board cannot be granted. Therefore, the delay also would operate against the original petitioner.

11. In addition to the above, once the orig.

petitioner had put an end to the services with the Board and after having pocketed the

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benefits of CPF as back as in the year 1997, he cannot be heard to say that he is ready to refund the amount if the length of service with the Board is considered for benefit of pension in the services of the State Government."

9. We find that in the present case also the petitioner by his implied conduct not only waived the right, but rather abandoned his right for all purposes until he reached the age of superannuation. Therefore, after the retirement the petitioner cannot be heard to say that he is ready to refund the amount if he is treated as member of GPF."

6.7 So far as the reliance placed on by the learned Advocate, Mr. Dave, for the petitioner on the decision dated 22.01.2020, rendered in Special Civil Application No. 132 of 2018 is concerned, the facts of that case are different from the facts of the present case.

6.7.1 In Special Civil Application No. 132 of 2018, the petitioner had duly filled-up the option form vide inward No. B-91, expressing her desire to avail the benefits of the GPF Scheme and despite that the authorities continued to deduct the CPF from her account, instated of GPF. Further, the petitioner, therein, had produced the option form along with the rejoinder filed by her to the affidavit-in-reply filed by the Respondent. Therefore, the Court observed that the petitioner had positively opted to be governed under the GPF Scheme.

6.7.2 Therefore, the aforesaid judgment would not assist the case of the present petitioners. 6.8 Similarly, the reliance placed on by the learned Advocate, Mr. Dave, on the decision of this Court, Dated: 04.08.2017, rendered in Letters Patent Appeal No. 664 of 2016 and the allied matters is concerned, the facts of that case are also different, where, the Division Bench of this Court has specifically noted in Paragraph-3.3 thereof as under;

"3.3 It was the case on behalf of the original petitioners that despite they had submitted their option, they were not given GPF Account number and

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they continued to be in the CPF Scheme and the were denied the benefit of Pension Scheme as per the Government Resolution dated 17th January 1996, and therefore, the respective petitioners preferred the aforesaid Special Civil Applications challenging action of the respondents for withholding the Pensionery benefit vide Government Resolution dated 17th January 1996 and for withholding the allotment of GPF Account number, and to declare that the petitioners are entitled and eligible to get the benefit of Pension Scheme, as per Government Resolution dated 17th January 1996."

6.8.1 Thereafter, in Paragraph-19 thereof, the Division Bench has observed as under:

"10. It is not in dispute that as on 1st April 1995/17th January 1996, the respective original petitioners were already in service. It is the case of the original petitioners that as such they did exercise option for Pension Scheme in the year 1997 itself which was forwarded by the original respondent no. 4-Institution. It appears that thereafter, even vide Resolution dated 22nd August 2007, the Government in its Education Department clarified the position regarding the amount of CPF or GPF not deposited and in fact, clarified that the employees of the Institutions figured in the Appendix "A" [including the original respondent no. 4- Institution in which the original petitioners were serving] are entitled for the benefit of the Pension Scheme."

6.8.2 Thus, in the aforesaid case, though, the petitioners had exercised their option, they were not given the benefit of GPF, whereas, in the case on hand, the petitioners never exercised their option, despite of having been given a number of opportunities by Respondent No.3-AMC by way of issuing various circulars and by extending time-limit for exercising such option from time to time. Thus, the aforesaid judgment shall also not apply to the facts of the present case.

6.9 In the present case, as observed herein above, the petitioners remained negligent and did not exercise their

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option, despite of a number of opportunities were given to them and instead, they filed the present petition after their retirement, after having received the amount lying in their respective CPF account without any protest or objection and therefore, now, the petitioners cannot be heard to say that they are ready to refund the amount of deposited by the employer towards its contribution under the CPF Scheme, if, they are permitted to switch over to the Pension Scheme."

6.1 The co-ordinate bench considered the decision of the Division Bench in Letters Patent Appeal No. 1245 of 2014 which has been relied upon by Mr. Munshaw.

7. Accordingly, it is apparent that having continued to be retained in CPF without any protest or objection, the respondent when applied for voluntary retirement sought to opt for pension scheme. He without protest had continued to be governed by the CPF account and accepted his contribution under CPF scheme. Therefore, reading the master circular together with circulars of 1993 and 1996, this court cannot give the benefit of presumption in favour of the respondent as held by the Tribunal to be governed by the pension scheme.

8. Accordingly petition is allowed. Award of the tribunal dated 28.09.2018 in Reference (IT) No. 403 of 2012 is quashed and set aside. Rule is made absolute accordingly.

(BIREN VAISHNAV, J) DIVYA