Gujarat High Court
Ramesh Ramcharan Upadhyay vs The Ahmedabad Municipal Corporation on 9 April, 2025
Author: A. S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/1691/2022 CAV JUDGMENT DATED: 09/04/2025
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Reserved On : 01 & 02/04/2025
Pronounced On : 09/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1691 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 1629 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1670 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE Sd/-
=============================================
Approved for Reporting Yes No
√
=============================================
VIRAMBHAI LILABHAI DESAI AND ORS.
Versus
THE AHMEDABAD MUNICIPAL CORPORATION & ORS.
=============================================
Appearance:
MR PRABHAKAR UPADYAY, MR HEMANG SHAH &
MR AAKASH D MODI, ADVOCATES for the Appellant - EMPLOYEES
MR KAMAL TRIVEDI, ADVOCATE GENERAL & SENIOR ADVOCATE with
MR ANUJ K TRIVEDI & MR VAIBHAV GOSWAMI, ADVOCATES for the
Respondent No. 1,2
MS E. SHAILAJA, ADVOCATE for the Respondent No.3
=============================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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C/LPA/1691/2022 CAV JUDGMENT DATED: 09/04/2025
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(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present group of Letters Patent Appeals filed under
Clause 15 of the Letters Patent, 1865, are directed
against the common judgment and order dated
13.10.2022 passed by the learned Single Judge in the
captioned writ petitions, rejecting the writ petitions filed
by the appellants - employees claiming the benefits of
pension under the General Provident Fund Scheme (for
short, "the GPF Scheme"). All the appellants at the time
of appointment were the members of the Employees
Provident Fund Scheme (for short, "the EPF Scheme")
2. Since similar set of facts are involved and the issue is
also analogous in these group of appeals, Letters Patent
Appeal No.1691 of 2022 is taken up as a lead matter.
BRIEF FACTS : -
3. There appears to be perennial dispute between the
appellants, who are employees of the respondent -
Ahmedabad Municipal Corporation (for short, "the
respondent - Corporation") and the respondent -
Corporation, which has been going on since the year
2003, when the first writ petition was filed by the
appellants - employees seeking extension of the benefits
of the GPF Scheme in their favour. The entire dispute
between the respective parties stems out of the GPF
Scheme introduced by the respondent - Corporation vide
Resolution dated 10.06.1983, which was implemented
with effect from 01.01.1983.
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4. This is the sixth round of litigation between the
respective parties. There is checkered history of
litigation, which we would be referring briefly and
confining it for answering the issue raised in the present
group of appeals.
5. All the appellants - employees are/were appointed in the
Central Workshop of the respondent - Corporation being
an independent and distinct establishment engaged in
the activities of purchase, repairs and maintenance of all
vehicles of the respondent - Corporation, and they were
made members of the EPF Scheme at the time of their
appointment in the year 1989 onwards since the Central
Workshop in which they were appointed was governed by
the provisions of Factories Act, 1948.
6. It is the case of the appellants - employees that they are
entitled to pension as per the GPF Scheme, which was
introduced in the year 1983 (01.01.1983) and the action
of the respondent - Corporation in denying them for
switching over from the EPF Scheme to the GPF Scheme
is discriminatory and illegal.
7. The first writ petition being Special Civil Application
No.4861 of 2002 was filed in the year 2002 in this regard,
and the last writ petition is the captioned writ petition
filed in the year 2022.
8. In the intervening period, there was an order passed by
the learned Single Judge of this Court rejecting the claim
of the appellants, which ultimately resulted into SLP
(Civil) No.27537 of 2011 filed by the Union of the
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appellants against the order dated 22.04.2011 passed in
Letters Patent Appeal No.573 of 2011. The Supreme
Court, by the order dated 03.12.2013, while dismissing
the SLP, however reserved liberty in favour of the
individual Members of the Union to seek redress before
the High Court or any other appropriate forum, in
accordance with law. It was further clarified that any
proceedings, if are initiated, shall be disposed of
uninfluenced by any observation made by the learned
Single Judge or the Division Bench of this Court.
9. Thereafter, the appellants filed the writ petitions being
Special Civil Application No.3711 of 2014 and allied
matters, which were disposed of by the common
judgment and order dated 17.10.2016 on the statement
made by the learned advocates appearing for the
appellant - employees. There were seven directions
incorporated in the said judgment and order.
10. In a nutshell, the learned Single Judge vide aforesaid
order dated 17.10.2016, has directed the present
appellants - employees to submit an application on or
before 30.11.2016 before the Provident Fund
Organization seeking exemption under the Employees'
Provident Fund Scheme, 1852 (the EPF Scheme) under
Section 17(2) of the Employees' Provident Fund Act, 1952
(for short, "the EPF Act") or under any other provisions.
Ultimately, the discretion is left on the Provident Fund
Organization to take appropriate decision on the
application(s) filed by the present appellant- employees
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to shift from the EPF Scheme to the GPF Scheme of the
Corporation.
11. Thereafter, despite the aforesaid directions and filing of
the applications by the present appellants, since nothing
was done, they filed the writ petitions being Special Civil
Application No.10044 of 2019 and allied matters seeking
direction for the grant of benefits of the GPF Scheme,
which were disposed of vide order dated 30.07.2021 by
directing the respondent - Corporation to forward the
applications of the appellants after duly attesting them to
the Regional Provident Fund Commissioner, who shall
then decide their entitlement for the GPF Scheme, in
accordance with law.
12. By the order dated 03.12.2021, the Regional Provident
Fund Commissioner opined that the GPF Scheme is more
beneficiary to the appellants - employees, than the EFP
Scheme and if they are otherwise eligible to get any
other more beneficial social security benefits including
the GPF subject to fulfillment of conditions of grant of
exemption, as envisaged in the Employees' Provident
Fund Act, 1952 and in case, the establishment wishes
and decides to extend such benefits to the employees,
the same can be done.
13. Thereafter, the present appellants filed the captioned writ
petitions seeking grant of pension under the GPF
Scheme, which have been rejected by the learned Single
Judge by the impugned judgment and order giving rise to
the present appeals.
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SUBMISSIONS ON BEHALF OF THE APPELLANT -
EMPLOYEES :-
14. Learned advocate Mr.Prabhakar Upadyay and learned
advocate Mr.Hemang Shah, appearing for the appellant -
employees have submitted that the appellants -
employees, who are appointed in the year 1989, after the
Scheme was promulgated in the year 1983 get
automatically covered in the GPF Scheme. Reliance is
placed on the Circular No.52 dated 02.02.1984, which
prescribes for filling up the options in cases of those
employees, who are under the Contributory Provident
Fund Scheme, (for short, "the CPF Scheme") only. It is
submitted that the present appellants, who are working
under the Central Workshop of the respondent -
Corporation and were enrolled in the EPF Scheme were
not required to give any option and they would get
automatically covered in the GPF Scheme. It is submitted
that thus, the learned Single Judge fell in error in
rejecting the writ petitions by ignoring that there was no
option available for filling up the option form as the
appellants were in the EPF Scheme and not in the GPF
Scheme.
15. Learned advocates have further referred to the
communication dated 20.03.2001 written by the Director
- SWM and Joint Director (Mechanical) of the respondent -
Corporation recommending the case of the appellants for
allowing them to switch over to the GPF Scheme by
accepting their consent letters. It is submitted that 196
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employees of the respondent - Corporation, who were
working in the Central Workshop have been allowed to
switch over to the GPF Pension Scheme, as referred in
the said communication. It is submitted that the
communication also further reveals that 99% of the
employees of Driver, Technical and Non-technical Officers
of the Ahmedabad Municipal Corporation have given their
consent letters to join in the GPF Scheme and
accordingly, the Joint Director has requested the
Ahemdabad Municipal Corporation to grant necessary
approval.
16. Reference is also made by the learned advocates to the
Circular No.3 dated 29.05.2001 written by the Assistant
Municipal Commissioner in this regard and has submitted
that appropriate application was invited from the
employees to get exemption from the Provident Fund
Commissioner, so that they can be made Members of the
GPF Scheme. It is submitted that all the employees were
under the impression that since the Director has already
initiated the action, they were not required to further
individually ask for permission from the Regional
Provident Fund Commissioner for seeking exemption.
17. Reference is also made to Section 17 of the EPF Act and
also more particularly sub-section (2) and also paragraph
Nos.27 and 27A of the EPF Scheme, 1952 and it is
submitted that as per the statutory provisions, the
Regional Provident Fund Commissioner was required to
grant exemption to them.
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18. It is further submitted that after the directions were
issued by this Court vide a common order dated
30.07.2021 passed in the group of writ petitions being
Special Civil Application No.10044 of 2019 and allied
matters directing the respondent - Corporation to
forward the applications after duly attesting them to the
Regional Provident Fund Commissioner, the Regional
Provident Fund Commissioner has passed a
comprehensive order dated 03.12.2021 comparing the
benefits of the EFP Scheme and the GPF Scheme and
ultimately, it has been opined by the Regional Provident
Fund Commissioner that the appellants are entitled to get
the benefits of the GPF Scheme and in case, the
establishment wishes to seek exemption under Section
17 of the EPF Act, it can apply. It is submitted that the
respondent - Corporation cannot deny the benefits of the
GPF Scheme to the appellants on the ground of delay in
filing the application since the learned Single Judge of
this Court in the common order dated 17.10.2016 passed
in Special Civil Application No.3711 of 2014 and allied
matters had directed the appellants to file an application
before the Provident Fund Organization seeking
exemption and the Regional Provident Fund
Commissioner has accordingly considered their
application, which was filed pursuant to the said order
and the Regional Provident Fund Commissioner was also
subsequently directed by this Court vide order dated
30.07.2021 passed in Special Civil Application No.10044
of 2019 and allied matters to pass appropriate orders. It
is contended that in view of the aforesaid directions, the
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respondent - Corporation was required to seek
exemption so that the appellants can be covered under
the GPF Scheme. Thus, it is submitted that these vital
aspects have been ignored by the learned Single Judge
and hence, the judgment and order passed by the
learned Single Judge may be quashed and set aside.
19. While placing reliance on the Circular No.27 dated
14.08.2003, it is contended that the same will clarify that
the GPF Scheme is not closed, and only the right to
exercise option was closed, hence the case of the
appellants cannot be denied on the ground that the GPF
Scheme is closed.
SUBMISSIONS ON BEHALF OF THE RESPONDENT-
CORPORATION :-
20. Learned Senior Advocate Mr.Kamal Trivedi, assisted by
the learned advocates Mr.Anuj K. Trivedi and Mr.Vaibhav
Goswami, at the outset, has pointed out the averments
made in the affidavit dated 17.12.2024 filed by the
Corporation and has submitted that the policy decision
taken by the Corporation in terms of its Resolution
No.790 dated 10.06.1983 to make available the benefits
of the GPF Scheme, was limited and confined to only
those employees, who were working in the departments
covered by the CPF Scheme. It is further submitted that
the GPF Scheme, which was introduced on 10.06.1983
and was implemented with effect from 01.01.1983, has
been discontinued vide Circular No.27 dated 14.08.2003
and with effect from 01.04.2005, a new Pension Scheme
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has been adopted, which has been introduced vide a
Notification issued by the Central Government. It is
submitted that at the relevant point of time, the
appellants did not seek exemption from the Regional
Provident Fund Commissioner and as on today, the
Central Workshop, in which, they were appointed and
working is not exempted from the applicability of the EPF
Act / EPF Scheme and hence, at this stage, the appellants
cannot be considered for pension as per the GPF Scheme.
21. It is contended that there were 474 workmen. who were
working in the Central Workshop of the respondent -
Corporation and have joined the services after
01.01.1983 and have been duly covered by the EPF
Scheme and thereafter 566 workmen of the Central
Workshop have joined the Corporation after 01.01.1983,
and have retired by this time after having withdrawn the
accumulated fund of amount of contribution from the
office of the Regional Provident Fund Commissioner and if
the appellants are allowed to shift to the GPF Scheme,
the same may resurrect the claim of such employees,
which will be a huge financial burden on the respondent -
Corporation.
22. It is submitted that by the Circular No.10 dated
31.05.1984, the respondent - Corporation had further
clarified that all the employees, who wish to join the GPF
Scheme in place of the CPF Scheme, must inform the
Pension Division of Chief Account Department in writing
latest by 30.06.1984, failing which, they would not be
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allowed to join the GPF Scheme, however the appellants
did not file any option for switching over to the GPF
Scheme. Reference is also made to Circular No.27 dated
14.08.2003, by him and it is submitted that the GPF
scheme was closed in the year 2003. It is submitted that
as on today, in wake of the fact that when the GPF
Scheme itself is discontinued and there is no exemption
of the Central Workshop or the employees employed in
the workshop exempting them from the provisions of the
EPF Act, they cannot be allowed to switch over to the GPF
Scheme. It is submitted that none of the orders passed
by this Court establish any right in favour of the
appellants for switching over the GPF Scheme. It is
submitted that even the SLP was dismissed by recording
that there is no error in the judgment and order passed
by the Division Bench of this Court. Learned Senior
Advocate Mr.Trivedi has placed reliance on the catena of
judgments on the issue of belated options tendered by
the employees seeking switching over from the Schemes.
23. So far as the case of 196 workmen, on which the
appellants have premised their case, it is contended that
such employees, who were having the EFP Scheme were
allowed to shift over the GPF Scheme during the period
from 26.07.1983 to 16.09.1989, as they individually
approached the Provident Fund Office Commissioner,
which granted the exemption from the provisions of the
EPF Act, which was accepted by the respondent -
Corporation. It is submitted that such decisions were
erroneously accepted by the Corporation, at the relevant
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time, whereas the present appellants, who are 109 in
numbers, for the first time, came forward through its
Union in the month of July, November and December -
2003, without approaching the P.F. Department. Thus, it
is submitted that they cannot claim parity at par with 196
workmen, at this stage, when the Scheme itself is
discontinued.
24. Learned Senior Advocate Mr.Kamal Trivedi, has further
submitted that the appellants are not automatically
governed by the GPF Scheme since admittedly, all the
appellants were in the EPF Scheme, which was applicable
to the Central Workshop Department covered under the
provisions of the Factories Act, 1948. It is submitted that
all of them, who were appointed in the year 1981
onwards were covered by the EPF Act, and accordingly,
the contribution was also deducted from the salary,
however they chose to remain silent and inactive till the
year 2003. It is submitted that the Scheme was itself
closed in the year 2003, their claim could not have been
entitled after a delay of more than 9 years, when they
first approached in the year 2003.
25. He has also referred to the observations recorded by the
learned Single Judge in the judgment and order dated
17.10.2016, wherein the learned Single Judge has
categorically recorded that the petitioners (present
appellants) remained silent and inactive for almost 9
years and they continued to the Members of the
Statutory Scheme. It is submitted that the learned Single
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Judge has recorded that it was compulsory for the
appellants-employees, who exercise their option after
they are granted exemption from the applicability of the
EPF Scheme and the EPF Act and after recording such
observations, finally, on the statement made by the
learned advocates appearing for them, the learned Single
Judge granted liberty in favour of the appellants to
approach the Provident Fund Organization.
26. While referring to the order passed by the Regional
Provident Fund Commissioner dated 03.12.2021, it is
submitted that the Regional Provident Fund
Commissioner has not specifically opined that the
appellants are entitled to the exemption, hence their
case is required to be considered under the GPF Scheme.
Thus, it is submitted that the judgment and order passed
by the learned Single Judge, which is impugned in the
present appeals, may not be interfered with and the
same is appropriately passed.
ANALYSIS AND CONCLUSION :-
27. The following are the vital established facts from the
pleadings, which are required to be considered for
adjudicating the issue raised in the present group of
appeals.
(a) The respondent - Corporation framed the GPF
Scheme on 10.06.1983 under Section 465 (1)(h) of the
Bombay Provincial Municipal Corporations Act, 1949,
with effect from 01.01.1983.
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(b) All the appellants are/were appointed in the year
1989 onwards in the Central Workshop, which
undertakes activities of purchase, repairs and
maintenance of all the vehicles of the respondent -
Corporation and the said Central Workshop is registered
under the Factories Act, 1848.
(c) All the employees working in the Central Workshop,
as on today and at the relevant time, when the
appellants were appointed are governed by the
provisions of the Employees' Provident Funds and
Miscellaneous Provisions Act, 1952 (EPF Act).
(d) The GPF Scheme of 1983 specifically stipulates a
clause, which allows an employee governed by the
Central Provident Fund Scheme (CPF) to switch over to
the GPF Scheme.
(e) There is no mention about filing of an option by the
employees of the Central Workshop like the present
appellants to switch over from the EPF Scheme to the
GPF Scheme.
(f) The GPF scheme has been discontinued and NPS
(New Pension Scheme) pursuant to the Notification of the
Central Government, has been implemented in the
Corporation since 01.04.2005.
(g) It appears that the appellants continued in the EPF
Scheme and accordingly, every month's contribution was
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deducted from the salary and for the first time in the
year 2001-2002, they filed a representation before the
respondents claiming benefits of the GPF Scheme. Since
nothing was done, they filed the first writ petition being
Special Civil Application No.4861 of 2002, which was
disposed of by the order dated 18.06.2003 directing
them to make a representation.
28. By the Circular No.27, dated 14.08.2003, it was declared
by the respondent -Corporation that the employees have
been given sufficient opportunity to leave the CPF
Scheme and to join the GPF Scheme and accordingly, the
respondent - Corporation rejected the case of the
appellant - employees Union by the order dated
15.03.2004.
29. It is an established fact that the GPF Scheme has been
discontinued, and NPS (New Pension Scheme) pursuant
to the Notification of the Central government, has been
implemented in the Corporation since 01.04.2005. There
has been intervening litigation between the parties,
which we have referred hereinabove, and we would not
like to reiterate. The dispute reached upto the Supreme
Court and the Supreme Court vide order dated
03.12.2013, while dismissing SLP (Civil) No.27537 of
2011 filed by the Union of the appellants, directed the
individual members of the Union to file appropriate
proceedings before the appropriate forum.
30. In view of the of aforesaid order, the appellants filed writ
petitions being Special Civil Application No.3711 of 2014
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and allied matters, which were disposed of by the
judgment and order dated 17.10.2016.
31. We may like to comment upon the directions issued by
the learned Single Judge (Coram : Hon'ble Mr.Justice K.M.
Thakkar) in the judgment dated 17.10.2016 passed in
Special Civil Application No.3711 of 2014 and allied
matters, as both the respective parties, have heavily
placed reliance on such directions. In paragraph No.27.5,
the learned Single Judge, in the judgment and order
dated 17.10.2016, has categorically observed that the
appellants have remained silent and inactive for a period
of 9 years and they continued to be the Members of the
statutory EPF Scheme. The learned Single Judge has also
taken cognizance of the fact that 18 employees, who are
in the EPF Scheme, were allowed to opt for GPF Scheme,
since they had sought exemption from the P.F.
Organization and accordingly, they have been allowed to
shift to the GPF Scheme. These are the vital aspects,
which are considered by the learned Single Judge. The
learned Single Judge in the said judgment, while
considering the provisions of Section 17 of the EPF Act,
1952 and Section 17(2), which enables to an employee to
submit request for exemption, has ultimately disposed of
the writ petitions on the request and the statements
made by the learned advocates appearing for them, inter
alia stating that the appellants would like to submit an
application seeking exemption from the Employees'
Provident Fund Scheme, 1952 and accordingly, the writ
petitions, on the statement made by the learned
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advocates appearing for the appellants, were disposed of
by issuing clarificatory directions that they shall submit
the applications seeking exemption under the EPF Act on
or before 30.11.2016 and on receipt of such application,
the Employees' Provident Fund Organization will
"CONSIDER' the said application(s) independently on
their merits in light of the provisions of the EPF Act and in
case, the Employees' Provident Fund Organization comes
to the conclusion that the request made by the
employees is accepted and the exemption deserves to be
granted, then appropriate order shall be passed. The
learned Single Judge has also prescribed the cut-off date
of 10.10.2016, in case the benefits are made available to
the employees, who have retired before the said date of
10.10.2016. Thus, the learned Single Judge in the
judgment dated 17.10.2016 has categorically recorded
about the indolent attitude of the appellants of remaining
silent for a period of 9 years and the writ petitions are
only disposed of on the statement made by the learned
advocates appearing for them to allow the appellants to
file application seeking exemption from the Regional
Provident Fund Organization.
32. The second order, on which the reliance is heavily placed,
is the order dated 03.12.2021 passed by the Regional
Provident Fund Commissioner. It is pertinent to note that
the said order is passed in view of the order dated
30.07.2021 passed by this Court in the group of petitions
being Special Civil Application No.10044 of 2019 and
allied matters, wherein the learned Single Judge has
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directed the respondent - Corporation to forward the
application of the appellants seeking exemption to the
Regional Provident Fund Commissioner, who shall decide
the same in accordance with law.
33. It is the case of the appellants that by the order dated
03.12.2021 the Regional Provident Fund Commissioner
has held in their favour and the respondent - Corporation
shall accordingly extend the benefit of the GPF Scheme.
34. We have perused the order dated 03.12.2021 passed by
the Regional Provident Fund Commissioner. The Regional
Provident Fund Commissioner, after hearing the
appellants and the Ahmedabad Municipal Corporation, by
a comprehensive order and after comparing the EPF
Scheme and the GPF Scheme and while recording the
entire history of the litigation between the respective
parties, has ultimately shifted the onus on the
respondent - Municipal Corporation. It is recorded that if
the Municipal Corporation decides to confer the benefits
of the GPF Scheme to the appellants, the appellants-
employees can be excluded from the preview of the EPF
Act. On the question of entitlement of the appellants, the
Regional Provident Fund Commissioner has clarified that
an employee, by the provisions of EPF Act, 1952, can any
time, for better social security benefits subject to
fulfillment of conditions of exemption as envisaged in the
Act and the Scheme, can switch over to the GPF Scheme.
It is ultimately held that in case, the establishment
wishes to seek exemption under Section 17 of the EPF
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Act, it shall apply to the competent authority for
exemption from individual scheme separately and shall
ensure that all the conditions of the exemption are
fulfilled.
35. At this stage, we may refer to the provisions of Section
17(2) of the Employees' Provident Fund Act, 1952, which
read as under : -
"[17. Power to exempt.--(1) The appropriate Government may,
by notification in the Official Gazette and subject to such
conditions as may be specified in the notification, 2 [exempt,
whether prospectively or retrospectively, from the operation] of
all or any of the provisions of any Scheme--
xxx....
(2) Any Scheme may make provision for exemption of any
person or class of persons employed in any 2 [establishment] to
which the Scheme applies from the operation of all or any of the
provisions of the Scheme, if such person or class of persons is
entitled to benefits in the nature of provident fund, gratuity or
old age pension and such benefits, separately or jointly, are on
the whole not less favourable than the benefits provided under
this Act or the Scheme: Provided that no such exemption shall
be granted in respect of a class of persons unless the
appropriate Government is of opinion that the majority of
persons constituting such class desire to continue to be entitled
to such benefits. 3 [(2A) 4 [The Central Provident Fund
Commissioner may, if requested so to do by the employer, by
notification in the Official Gazette, and subject to such
conditions as may be specified in the notification, exempt,
whether prospectively or retrospectively, any establishment
from the operation of all or any of the provisions of the
Insurance Scheme, if he is satisfied] that the employees of such
establishment are, without making any separate contribution or
payment of premium, in enjoyment of benefits in the nature of
life insurance, whether linked to their deposits in provident
fund or not, and such benefits are more favourable to such
employees than the benefits admissible under the Insurance
Scheme. (2B) Without prejudice to the provisions of sub-section
(2A), the Insurance Scheme may provide for the exemption of
any person or class of persons employed in any establishment
and covered by that Scheme from the operation of all or any of
the provisions thereof, if the benefits in the nature of life
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insurance admissible to such person or class of persons are
more favourable than the benefits provided under the Insurance
Scheme."
36. The aforesaid provisions are required to be read with
Sections 27 and 27A of the EPF Scheme, 1952, which are
as under :-
"27. Exemption of an employee.
(1)A Commissioner may by order and subject to such conditions
as may be specified in the order exempt from the operation of all
or any of the provisions of this Scheme an employee to whom
the Scheme applies on receipt of application in Form I from such
an employee:Provided that such an employee is entitled to
benefit in the nature of Provident Fund, gratuity or old age
pension according to the rules of the factory or other
establishment and such benefits separately or jointly are on the
whole not less favourable than the benefits provided under the
Act and the Scheme.
(2)Where an employee is exempted as aforesaid, the employer
shall in respect of such employee maintain such account, submit
such returns, provide such facilities for inspection, pay such
inspection charges and invest provident fund collections in such
manner as the Central Government may direct.[Provided that
above mentioned returns shall be submitted by the employer in
electronic format also, in such form and manner as may be
specified by the Commissioner.] [Substituted by Notification No.
320 (E) dated 6.5.2014 (w.e.f. 2.9.1952) ]
(3)An employee exempted under sub-paragraph (1) may by an
application to the Commissioner make a declaration that he
shall become a member of the Fund.
(4)No employee shall be granted exemption or permitted to
apply out of exemption more than once on each account.]
27A. [ Exemption of a class of employees.
(1)[The appropriate Government][may by order and subject to
such conditions as may be specified in the order exempt from
the operation of all or any of the provisions of this Scheme any
class of employees to whom the Scheme applies:Provided that
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such class of employees is entitled to benefits in the nature of
provident fund, gratuity or old age pension according to the
rules of the [factory or other establishment] [Inserted by S.R.O.
2035, dated 28.10.1953.][and such benefits separately or jointly
or on the whole not less favourable than the benefit provided
under the Act and this Scheme.
(2)Where any class of employees is exempted as aforesaid, the
employer shall in respect of such class of employees maintain
such account, submit such returns, provide such facilities for
inspection, pay such inspection charges and invest provident
fund collections in such manner as the Central Government may
direct.[Provided that above mentioned returns shall be
submitted by the employer in electronic format also, in such
form and manner as may be specified by the
Commissioner.] [Inserted by S.R.O. 2035, dated 28.10.1953.]
(3)A class of employees exempted under sub-paragraph (1) or
the majority of employees constituting such class may by an
application to the Commissioner make a declaration that the
class desires to join the Fund and thereupon such class of
employees shall become members of the Fund.
(4)No class of employees shall be granted exemption or
permitted to apply out of exemption more than once on each
account.
(5)The provisions of this paragraph shall be deemed to have
come into force with effect from the 14th October, 1953.]"
37. Thus, as per the afore-noted provisions, in order to switch
over to any beneficial Scheme, an order of exemption is
required to be obtained by individuals under Section 27
of the EPF Scheme, 1952 from the Regional Provident
Fund Commissioner or in case the establishment like the
present respondent - Central Workshop, in which the
employees are serving, such exemption has to be
granted by the appropriate Government i.e. the Central
Government granting exemption from the provisions of
the EPF Act and the Scheme. Thus, even if the contention
raised by the appellants, that the Central Workshop got
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automatically encompassed under the GPF Scheme is
accepted and therefore, the appellants were not required
to tender the option is accepted, then also, they cannot
be allowed to switch over to the GPF Scheme unless, they
had obtained exemption from the EPF Scheme under the
statutory provisions, which was actually done by 196
employees of the same workshop between the year 1983
to 1989. The appellants remained lethargic for 9 years,
and did not make any efforts to follow the same path of
their colleagues, hence they have lost the right to the
GPF Scheme.
38. The appellants have also heavily placed reliance on two
documents; one is the communication dated 20.03.2001
written by the Director of Central Workshop to the
Commissioner and another is the Circular No.3 dated
29.05.2001, which is subsequent to the aforesaid
communication. By the communication dated
20.03.2001, the Director has referred in paragraph No.4
that total 168 employees, are granted permission to opt
for GPF Scheme as per Circular No.428 and another 16
employees are referred in paragraph No.28, are granted
exemption and have been extended to the benefits of the
GPF Scheme, as per the Resolution No.16 dated
09.05.1988. Accordingly, the Director has requested the
Municipal Commissioner to grant permission to 1001
employees to switch over the GPF Pension Scheme from
the EPF Pension Scheme.
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39. Subsequently, by the Circular No.3 dated 29.05.2001, the
Assistant Commissioner of Finance Department has
clarified that all the employees, who are on duty and the
employees, who are covered under the Factories Act and
are depositing the contribution in the PF Fund Scheme
and also the employees, who are in the CPF Scheme, in
case they desire to join the GPF Scheme, then they shall
obtain necessary approval from the Provident Fund
Commissioner seeking exemption till 30.06.2001 and
thereafter the employees, who have retired or declared
unfit will not be allowed to join the GPF Fund Scheme. It
is not the case of the appellants that they are not made
aware about the Circular No.3 dated 29.05.2001. As per
the said Circular, the Ahmedabad Municipal Corporation
has clarified that all the employees like the appellants,
who are governed under the Factories Act have to obtain
exemption from the Provident Fund Commissioner latest
by 30.06.2001. However, none of the appellants have
filed any application seeking exemption from the
Provident Fund Commissioner, as required under the Act
and the Scheme before the cut-off date of 30.06.2001.
The appellants have tried to shift the burden on the
superiors i.e. the Director of the Central Workshop. It is
contended that since the Director was examining their
cases and he had already requested the Municipal
Commissioner to grant approval to 1001 employees to
join the GPF Scheme, it was not necessary for the
appellants to file any application seeking exemption.
Such an excuse cannot rescue the appellants, since the
employees of the Central Workshop were already made
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aware of the cut-off date of 30.06.2001, by which they
were required to obtain exemption, failing which, the
employees will not be allowed to join the GPF Scheme.
The appellants cannot shift their responsibility on the
Director on the premise of the communication issued by
the Director dated 20.03.2001, more particularly that
even after the cut-off date of 30.06.2001, the EPF
contribution was being deducted from their salaries every
month, which formed part of their salary slips, however
they did not either pursue the Director or filed any
application seeking exemption, as directed by the
Municipal Corporation vide communication dated
29.05.2001. The Corporation, in its Affidavit dated
17.12.2024, has clarified that 196 employees of the
Central Workshop were allowed to opt for the GPF
Scheme between the period from 26.07.1983 to
16.09.1989, since they had individually obtained
exemption from the Provident Fund Commissioner. In
case of the appellants, though they belong to same
category, did not make any efforts to obtain exemption,
hence they cannot be allowed at this stage to convert to
the GPF Scheme.
40. The Regional Provident Fund Commissioner by the
communication dated 12.03.2004 had also clarified the
General Secretary of the appellants that he has not
received any exemption application from the Municipal
Corporation seeking exemption and no information has
been received from the Municipal Corporation extending
the GPF Scheme to 87 employees.
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41. In the case of the present appellants, for the first time,
they had filed appropriate application seeking exemption
only after the judgment and order dated 17.10.2016
passed by the learned Single Judge in Special Civil
Application No.3711 of 2014, that too on the statement
made by the learned advocates appearing for the
appellants after the learned Single Judge has observed
their laxity and inactiveness of 9 years in claiming the
benefit of the GPF Scheme. On the statement made by
the learned advocates appearing for the present
appellants, the learned Single Judge, at the relevant time,
had permitted them to file an application seeking
exemption under Section 17(2) of the EPF Act. Hence, the
judgment and order, which is passed by the learned
Single Judge on 17.10.2016 allowing the petitioners to
make appropriate application(s) cannot in any manner
dilute the cut-off date of obtaining the exemption by
30.06.2001 as prescribed in the Circular No.3 dated
29.05.2001. The learned Single Judge has only permitted
them to file application(s) and the Regional Provident
Fund Organization is only directed to decide the same in
accordance with law.
42. Indubitably, as on today, the fact remains that the
Regional Provident Fund Commissioner has not granted
any exemption either to the individual employees or to
the Central Workshop establishment of the Ahmedabad
Municipal Corporation. All the employees, who are retired
and are still working in the Central Workshop of the
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Ahmedabad Municipal Corporation are governed by the
EPF Scheme as per the provisions of the EPF Scheme and
Act, 1952 since the Central Workshop of the respondent -
Corporation is registered under the Factories Act, 1948.
This fact is not denied by the appellants.
43. On an overall appreciation of the facts, and in wake of
two vital established facts; (1) that all the appellants
have belatedly filled up their Forms in the year 2016
seeking exemption, which is beyond the cut-off date of
30.06.2001 and there is no order, as on today, in their
favour exempting them or the Central Workshop as
mandated by the provisions of Section 17 of the EPF Act
read with Sections 27 and 27A of the EPF Scheme; and
(2) since the GPF Scheme is already discontinued, they
cannot be allowed to switch over to the GPF Scheme of
1983, at this stage.
44. We do not see any reasons to interfere with the judgment
and order passed by the learned Single Judge.
Resultantly, the present appeals fail and the same are
dismissed.
45. All the connected civil applications do not survive and the
same are also disposed of accordingly.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(NISHA M. THAKORE,J)
MAHESH/
