Vinod N Joshi S/O Natwarlal Joshi vs State Of Gujarat
2023 Latest Caselaw 5498 Guj

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      C/LPA/278/2023                               JUDGMENT DATED: 01/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 278 of 2023
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 4473 of 2011

                                     With

               CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
                                   In
                R/LETTERS PATENT APPEAL NO. 278 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL                                        Sd/-

and

HONOURABLE MR. JUSTICE N.V.ANJARIA                                      Sd/-

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1     Whether Reporters of Local Papers may be allowed to                NO
      see 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           NO
      as to the interpretation of the Constitution of India or
      any order made thereunder ?

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                       VINOD N JOSHI S/O NATWARLAL JOSHI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MS HARSHAL N PANDYA(3141) for the Appellant(s) No. 1
MS SHRUTI DHRUVE, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR JINESH H KAPADIA(5601) for the Respondent(s) No. 6,7
NOTICE SERVED for the Respondent(s) No. 2,3,4,5
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     C/LPA/278/2023                         JUDGMENT DATED: 01/08/2023

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 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE N.V.ANJARIA

                        Date : 01/08/2023
                        ORAL JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. Heard Ms. Harshal N. Pandya, learned counsel for the

appellant, Mr. Jinesh H. Kapadia, learned counsel for the

respondent Institution, as also Ms. Shruti Dhruve, learned

Assistant Government Pleader for respondent - State.

2. This Letters Patent Appeal arises out of the judgment and

order dated 12.10.2022 passed by the learned Single Judge in

Special Civil Application No. 4473 of 2011, wherein a

categorical finding has been returned that the petitioner -

appellant herein, who was in-charge principal of the institution

concerned, was never a member of CPF scheme, which is one of

the pre-conditions for grant of benefits of the Government

Resolution dated 5.2.1980.

3. Clauses 1 and 2 of the Government Resolution dated

5.2.1980 have been extracted in the judgment impugned which

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are to be noted hereunder:

"1. The contribution made by the institution under their own C.P.F scheme to the employees of the recognized secondary school voluntarily not receiving grant or the pension contribution to be given under the rules in force at that time, whichever is higher is to be deposited in the Government.

2. If the employees of the recognized non-granted secondary schools have joined the C.P.F. scheme, then the contribution of the Government in that regard is to be deposited in the government treasury. However, the cases falling within the clarifications/ provisions made vide Government circular dated 29/05/1974 and resolution dated 31/08/1979 are to be regularized accordingly."

4. The learned Single Judge has further recorded a finding

that the petitioner on his own has deposited certain money by

opening a GPF account, whereas contribution of the employer

side was never deposited in the GPF account. The GPF account

was thus not wholly operational. Further, at some point of time,

the petitioner - appellant herein had deposited the employer's

contribution on his own and by realising the mistake later, the

amount was withdrawn and GPF account was closed in the year

2008. With regard to the applicability of the Government

Resolution dated 5.2.1980, it is recorded in the judgment

impugned that in view of clauses 1 and 2 of the Government

Resolution dated 5.2.1980, teachers of unaided school would be

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entitled to pension in case they are members of the CPF scheme

or the like schemes, wherein contribution from the salary of the

employee and that of the employer is refunded to the State

Government to make pension scheme applicable to such

individual employee.

5. As in the instant case, neither the contribution of the

employee was deducted from its salary by the school for deposit

the same in the CPF scheme or any other scheme nor the school

itself has deposited its part of the contribution. In the said

eventuality, there was no question of deposit of such

contributions with the State Government and since the

conditions of the Government Resolution dated 5.2.1980 as

contained in clauses 1 and 2 are not fulfilled, the petitioner -

appellant herein cannot be said to be covered by the same.

6. This finding returned by the learned Single Judge could

not be assailed by the learned counsel for the appellant. It is,

however, sought to be argued that it was the duty of the school

to deduct the contribution towards the CPF scheme from the

employee's salary, as also to deposit its contribution. For the

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failure of the school management to comply with the conditions

of clauses 1 and 2 of the Government Resolution dated 5.2.1980,

the petitioner - appellant herein cannot be made to suffer. On

further finding about the fraud committed by the petitioner -

appellant herein in filling up the form for deposits in the GPF

account, which was meant for the employees / staff of the

recognised and aided Institution, it is submitted by the learned

counsel for the appellant that it was simply a format and there

was no clarity nor there was any indication that the said form

was meant only for the teachers of recognised and aided

Institution. It, therefore, cannot be said that the appellant had

committed any fraud by filling up the form for the GPF scheme

or by making contribution in the same.

7. It is lastly submitted that in any case, the Government

Resolution dated 5.2.1980 was applicable uptil the month of

June 1992 when it was discontinued in respect of those Non

Grant-in-Aid Schools which have been recognised vide

Government Resolution dated 28.9.1992. The petitioner -

appellant having been appointed in the year 1981 was covered

under the Government Resolution dated 5.2.1980. The

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submission is that the learned Single Judge has committed

illegality in non-suiting the petitioner on the premise that he has

committed fraud by opening a GPF account and is not entitled

for any indulgence of this Court. Reliance is placed on the

decision of the Division Bench of this Court dated 18.3.2004

rendered in the case of State of Gujarat & Ors. vs.

Surendrakumar D. Bhatt & Ors. [Civil Application No.9499 of

2003 in Letters Patent Appeal (Stamp) No. 1819 of 2003] as well

as of the Apex Court decision dated 30.8.2004, rendered in the

case of State of Gujarat & Ors. vs. Surendrakumar D. Bhatt &

Ors. [Petition for Special Leave to Appeal (Civil) No. 17117 of

2004].

8. Learned counsel for the respondent - school management,

on the other hand, submits that the applicability of clauses 1

and 2 of the Government Resolution dated 5.2.1980 would

depend upon the fulfillment of the conditions contained in

clause 4 thereof. The submission is that only those employees,

whose services were pensionable at the time of entering into

services, were entitled for the benefit of clauses 1 and 2 of the

Government Resolution dated 5.2.1980. The submission is thus

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that from any angle, benefits cannot be provided to the

petitioner - appellant. So far as the finding of fraud, it is sought

to be pointed out by the learned counsel for the respondent -

school management that in the year 2008, upon instructions

issued by the school management, the petitioner had closed the

account, however, the deposits made by the petitioner are still

lying with the school management and they are ready to refund

the deposits made by the petitioner.

9. Having noted the submissions of the learned counsels for

the parties and perused the record, suffice it to note that as per

own admission of the writ petitioner, he has never been the

member of CPF scheme, which was one of the pre-conditions for

applicability of the Government Resolution dated 5.2.1980. The

contribution if any made by the petitioner was under the GPF

scheme, which was applicable in case of employees - staff of

recognised and aided school. The condition of the appointment

letter of the petitioner has also been noted by the learned Single

Judge which records that it was the appointment of the

petitioner on the scale of Rs. 440-750 + DA + HRA. The

appointment letter did not prescribe the services of the

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petitioner to be pensionable. Clauses 1, 2 and 4 of the

Government Resolution dated 5.2.1980 prescribe the conditions

which are not fulfilled in the instant case. The decisions relied

upon by the learned counsel for the appellant are

distinguishable in the facts and circumstances of the instant

case.

10. We, therefore, do not find any good ground to interfere in

the decision of the learned Single Judge. The appeal is

dismissed, accordingly.

11. However, so far as the deposits made by the petitioner

towards contribution in the GPF account lying with the school

management, we keep it open for the petitioner - appellant to

move a proper application for refund of the said amount. In case

such an application is filed with the school management, the

refund of the deposits made by the petitioner - appellant shall

be processed in expeditious manner.

Sd/-

(SUNITA AGARWAL, CJ )

Sd/-

(N.V.ANJARIA, J) Bharat