Gujarat High Court
Ahmedabad Municipal Corporation vs Mukesh Madhusudan Sheth on 20 March, 2023
Bench: Hasmukh D. Suthar
C/LPA/189/2021 ORDER DATED: 20/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 189 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 17534 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 189 of 2021
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AHMEDABAD MUNICIPAL CORPORATION
Versus
MUKESH MADHUSUDAN SHETH
=======================================================
Appearance:
MR KAMAL TRIVEDI, Sr. Adv. with MR ANUJ K TRIVEDI(6251)
for the Appellant(s) No. 1,2
MR SHALIN MEHTA, Sr. Adv. with MR HEMANG M SHAH(5399)
for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE H. D. SUTHAR
Date : 20/03/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed by the appellant - Ahmedabad
Municipal Corporation under Clause 15 of the
Letters Patent against the oral judgment dated
30.01.2020 rendered by the learned Single Judge in
Special Civil Application No.17534/2016, whereby
learned Single Judge has allowed the petition
filed by the respondent - original petitioner.
2. The brief facts leading to the filing of the
present appeal are as under,
2.1 The respondent - original petitioner was
C/LPA/189/2021 ORDER DATED: 20/03/2023
claiming benefits of pension scheme as per
Circular dated 25.10.1983 and 02.02.1984. It
was the case of the respondent - original
petitioner that he was entitled to the
benefit of pension scheme as amount of
General Provident Fund (GPF) was being
regularly deducted from his salary. The
respondent - original petitioner has also
produced copy of service book along with the
memo of petition.
2.2 The appellant - original respondent has
contended that the respondent - original
petitioner would be governed by CFP Scheme as
per the policy, which was adopted by the
appellant - Corporation and the respondent -
original petitioner did not opt for the
pension scheme as required by the Circular
dated 25.10.1983 and 02.02.1984. Thus, the
respondent - original petitioner would not be
entitled to any pension.
2.3 The respondent - original petitioner,
therefore, filed captioned petition before
the learned Single Judge and the learned
Single Judge passed impugned order, whereby
the petition filed by the respondent -
original petitioner came to be allowed.
Therefore, the appellant - original
respondent has preferred the present appeal.
3. Heard learned Senior Counsel, Mr. Kamal Trivedi
assisted by learned advocate, Mr. Anuj Trivedi for
C/LPA/189/2021 ORDER DATED: 20/03/2023
the appellant - Corporation and learned Senior
Counsel, Mr. Shalin Mehta assisted by learned
counsel, Mr. Hemang Shah for the respondent -
original petitioner.
4. Learned Senior Counsel, Mr. Trivedi appearing for
the appellant - Corporation has mainly contended
that while passing impugned order, the learned
Single Judge has placed reliance upon the order
dated 22.01.2020 passed in Special Civil
Application No.132/2018 and after considering the
observations made by the learned Single Judge in
the aforesaid order dated 22.01.2020, in the
present case also, it has been held by learned
Single Judge that the employee is entitled to the
pensionary benefits in accordance with the scheme
of the Corporation as per Circular dated
02.02.1984 even if the employee does not give any
option and in the event the employee fails to give
any such option then, he would be deemed to be
governed by the pension scheme and, therefore,
automatically he is entitled to pension according
to the scheme of the Corporation.
5. Learned Senior Counsel would contend that against
the order dated 22.01.2020 passed by the learned
Single Judge in Special Civil Application
No.132/2018 upon which reliance has been placed by
learned Single Judge while passing impugned
judgment, the appellant - Corporation preferred
Letters Patent Appeal No.736/2020 and the Division
Bench of this Court, vide order dated 12.10.2020,
C/LPA/189/2021 ORDER DATED: 20/03/2023
disposed of the said LPA filed by the appellant -
Corporation after making certain observations.
Learned Senior Counsel has referred to the said
observations made in Paragraph Nos.5, 6 and 8 of
the said order dated 12.10.2020.
6. Learned Senior Counsel, therefore, urged that in
the present case, when the respondent - original
petitioner had exercised the option of GPF and
amount of GPF was being regularly deducted from
his salary, the benefit of pension can be given to
the respondent - original petitioner and the
appellant - Corporation will grant such benefit to
him. However, it is urged that the observation
made by learned Single Judge in Paragraph No.8 of
the impugned judgment be modified as per the
observations made by the Division Bench while
passing an order dated 12.10.2020 in Letters
Patent Appeal No.736/2020.
7. On the other hand, learned Senior Counsel, Mr.
Shalin Mehta has also contended that learned
Single Judge passed the impugned judgment after
relying upon the order dated 22.01.2020 passed by
the Coordinate Bench of this Court in Special
Civil Application No.132/2018 and against the said
order, the appellant - Corporation preferred
Letters Patent Appeal No.736/2020, wherein the
Division Bench of this Court modified the said
order. It is further submitted that when the
appellant - Corporation is ready and willing to
give benefit of pension to the petitioner, the
C/LPA/189/2021 ORDER DATED: 20/03/2023
impugned order passed by the learned Single Judge
be modified and for that, he has no objection.
8. We have considered the submissions canvassed by
learned advocates for the parties. We have also
perused the material placed on record. It would
emerge from the record that while passing impugned
order by the learned Single Judge, learned Single
Judge has placed reliance upon the order dated
20.01.2020 passed in Special Civil Application
No.736/2020, which was challenged by the appellant
- Corporation by filing Letters Patent Appeal
No.736/2020 before the Division Bench of this
Court and the Division Bench of this Court has,
after considering the submission canvassed by
learned advocate, made observations in Paragraph
Nos.5, 6 and 8, which read as under,
"5. At the outset, Shri Kamal B. Trivdei, learned
Senior Counsel submitted upon instructions
that the case of the writ-petitioner would be
covered by the General Provident Fund scheme
of the Corporation and such benefits would be
extended to her within a period of one month
from today, subject to fulfillment of other
formalities. He, however, submitted that the
Corporation has preferred this appeal due to
certain observations made by the learned
Single Judge while recording his conclusions,
which may, otherwise affect the Corporation
in future. According to Shri Trivedi,
although the two communications mentioned in
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para-6 dated 25.10.1983 and 02.02.1984 have
been correctly interpreted by the learned
Single Judge that in the event no option is
exercised, the petitioner would be covered
under the General Provident Fund scheme and
not Contributory Provident Fund scheme,
however, after the communication dated
02.02.1984, more than a dozen communications
were issued and as per the subsequent
communications, the exercise of option
was a must and in case the employee did not
exercise the option for joining of General
Provident Fund scheme, he or she would be
deemed to be continued under the Contributory
Provident Fund scheme.
6. Shri Trivedi submitted that to that extent,
the observations made by the learned Single
Judge may be clarified and the Corporation
may be allowed to proceed in future with
respect to other employees as per the
subsequent communications as mentioned above.
Shri Trivedi also relied upon a Division
Bench judgment of this Court dated 15.06.2015
passed in Letters Patent Appeal No. 1245 of
2014 filed as Annexure:14 at page 136.
Referring to para-5.0 thereof, Shri Trivedi
submitted that there is a reference to
subsequent communication as mentioned therein
and the Division Bench observation that
exercise of option was a must to be covered
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under the General Provident Fund scheme.
8. In view of the above submissions, we find
that the limited relief claimed by the
appellants is not only reasonable but also in
line with the subsequent communications and
the observations made by the Division Bench
of this Court referred to above. Accordingly,
the present appeal stands disposed of with
the following directions with the consent of
the counsels for the parties.
(i) The writ petitioner, respondent in the
appeal would be extended the benefit of
General Provident Fund scheme within a
period of one month from today as stated
by Shri Trivedi, learned Senior Counsel,
subject to fulfillment of necessary
formalities regarding refund and deposit
as may be required.
(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
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employee would be deemed to be covered
by the Contributory Provident Fund
Scheme."
9. Thus, the order upon which reliance has been
placed by learned Single Judge in the present case
while passing impugned order, has been modified by
the Division Bench of this Court.
10. It is further pertinent to note that the appellant
- Corporation has shown willingness to give the
benefit of pension scheme to the respondent -
original petitioner as amount of GPF was regularly
deducted from his salary and he had exercised the
option for the said scheme. Thus in the facts of
the present case, the present appeal deserves to
be allowed partly and some modification as stated
is required to be done.
11. Therefore, following order is passed.
(i) The writ petitioner, respondent in the
appeal would be extended the benefit of
General Provident Fund scheme within a period
of one month from today as stated by learned
Senior Counsel, Mr. Kamal Trivedi subject to
fulfillment of necessary formalities
regarding refund and deposit as may be
required.
(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
C/LPA/189/2021 ORDER DATED: 20/03/2023
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 Scheme."
12. In view of the above, the present appeal stands
allowed partly with the consent of learned
advocates for the parties and the impugned oral
judgment dated 30.01.2020 rendered by the learned
Single Judge in Special Civil Application
No.17534/2016 is hereby modified the aforesaid
extent.
13. In view of the above, connected civil application
does not survive and stands disposed of
accordingly.
Sd/-
(VIPUL M. PANCHOLI, J.)
Sd/-
(HASMUKH. D. SUTHAR, J.)
Gautam
