Gujarat High Court
Mukesh vs Ahmedabad on 16 April, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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MCA/2431/2008 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION No. 2431 of 2008
In
SPECIAL
CIVIL APPLICATION No. 2308 of 1985
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MUKESH
MADHUSUDAN SHETH
Versus
AHMEDABAD
MUNICIPAL CORPN. & ANR
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Appearance :
MR
SHAILESH C PARIKH for Applicant
MR MITUL K SHELAT for Opponent
No.1
NOTICE SERVED for Opponent
No.2
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 16/04/2010
ORAL
ORDER
1 The applicant original petitioner has filed this application praying for direction to the respondent Corporation to give effect of continuous service and grant notional increments and also grant increment and fix his arrears accordingly and to grant the arrears with all other consequential benefits. The applicant has also prayed for direction to the respondent Corporation to grant subsistence allowance for the period for which he is treated under suspension.
2 Initially, the applicant has filed Special Civil Application No. 7258 of 2008. In the said petition, notice was issued by this Court on 12.05.2008. However, by virtue of the order dated 04.09.2008, passed in Special Civil Application No. 7258 of 2008, the said petition was converted into Misc. Civil Application and office was directed to place the matter before the concerned Judge who decided the Special Civil Application No. 2308 of 1985. Accordingly, after conversion of the said Special Civil Application No. 7258 of 2008 into Misc. Civil Application No. 2431 of 2008, the matter was placed before this Court.
3 This Court has passed a detailed Order on 27.02.2009, wherein after giving the detailed facts on the previous proceedings of Special Civil Application No. 2308 of 1985, this Court has also directed the respondent Corporation to give forthwith the effect to the order dated 13.12.2005, passed by this Court in Special Civil Application No. 2308 of 1985 within one week from the date of the said order. Since the Corporation could not give effect to the said order and extension was sought for and, accordingly, the effect was given on 13.03.2009, under which the petitioner was given Gratuity amount of Rs. 2,70,208; Contributory Provident Fund amount of Rs. 1,01,123 and Leave Encashment amount of Rs. 44,608/-. The applicant had accepted the amount of gratuity and leave encashment under protest, however, CPF amount was not accepted by the applicant and the grievance was raised by the applicant that the applicant is entitled to the pensionary benefits and, hence, the respondent Corporation has not given the correct effect to the Order passed by this Court on 13.12.2005 in Special Civil Application No. 2308 of 1985.
4 Mr. Shailesh C. Parikh, leaned Advocate, appearing for the applicant original petitioner has submitted that the pension scheme was implemented in the Corporation w.e.f. 01.01.1983 by Circular dated 25.10.1983. The Scheme was also further explained by Circulars dated 02.02.1984 and 25.03.1984. The applicant was, at that time, in the Octroi Department and was governed by the said Circulars. Mr. Parikh further submitted that Circular dated 25.10.1983 says that employees who do not want to join pension scheme and wish to continue under the current Contributory Provident Fund Scheme shall file verification form by 02.11.1983. It further provides that those who will not inform in writing shall be treated to have accepted the pension scheme and further actions will be taken accordingly. Since the applicant wanted to join pension scheme, the applicant was not required to do anything as it was automatic. The applicant, therefore, did not file any verification. He has further submitted that the Circular dated 02.02.1984 also speaks about the Pension Scheme and further provides and clarifies that the verification has to be filed only by employees who wish to continue in Contributory Provident Fund Scheme and all other employees have been treated to have accepted the pension scheme. Since the applicant wanted to join pension scheme, he was not required to do anything and he did not file verification. Mr. Parikh further submitted that both the circulars have been produced by the respondent Corporation and the said Circulars fortify the stand of the applicant. Subsequent circulars are in connection with the extension for giving option to those employees who had opted for CPF Scheme and wanted to switch over to pension scheme. The applicant was not concerned with those circulars and he was covered by Circulars dated 25.10.1983 and 02.02.1984.
5 Mr. Parikh further submitted that even notings in the service book make it clear that the applicant was governed by Circulars dated 25.10.1983 and 02.02.1984 and the applicant did not file verification opting for CPF Scheme and on the date of implementation of the Scheme and as on 25.10.1983 and 02.02.1984, the applicant was in service and was working in the Octroi Department. The applicant was removed from service w.e.f. 1.10.1984 and he was reinstated in service w.e.f. 01.03.2006 by virtue of the order passed by this Court on 13.12.2005, in Special Civil Application No. 2308 of 1985. Mr. Parikh also submitted that the applicant was governed by Circular dated 02.02.1984 and everything was automatic under circular for those who wanted to opt for the pension scheme. He, therefore, submitted the applicant is eligible and entitled for pension.
6 Mr. Parikh further submitted that since the directions issued by this Court were not complied with by the Respondent Corporation in their letter and spirit and consequential benefits are not given to the applicant, though the applicant is eligible and entitled, the applicant has preferred this application and, hence, reliefs prayed for in the said application be required to be granted.
7 Mr. Mitul K. Shelat, learned Advocate, appearing for the respondent Corporation, on the other hand, strongly opposed to the Misc. Civil Application and has submitted that the present application is not maintainable and no relief as prayed for in the application is required to be granted. He further submitted that there is no whisper about this direction in the order of this Court. The issue arose only when the retirement benefit was granted to the applicant by the Corporation and, hence, there is no need to move the present application to that effect. It is further submitted that the applicant should have filed a separate substantive petition which requires proper adjudication and, hence, the court should not entertain this application. In support of his submission, he relied on he decision of the Apex Court in the case of State of Haryana and Ors vs Babu Singh, as reported in (2008) 2 SCC 85, wherein the Apex Court held that while accepting appellant's case, that the High Court's direction to pay pension to the respondent, by reopening the first writ petition which had already been dismissed with costs, is improper exercise of power. It was further held that it is well settled that the relief granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of the legal reasoning and the legitimacy of the conclusions. The possession of powers under Section 151 CPC by the courts itself is not sufficient, it has to be exercised in accordance with law. The orders of the courts must emanate logically from legal findings and the judicial results must be seen to be principled and supportable on those findings.
8 Based on the above judgment of the Apex Court, Mr. Shelat, has strongly urged that the present application should be rejected.
9 Even on merits, Mr. Shelat has submitted that the applicant is not entitled to the pensionary benefits as the Circular dated 25.10.1983 and 02.02.1984 came to be subsequently modified and thereafter several circulars have been issued in the year 1985, 1993, 1998, 2001 and the last Circular was issued in the year 2005. The aforesaid circulars make it abundantly clear that unless and until the option is exercised by the employee, the pensionary benefit should not be given to them and the last date for exercising of such option was 30th of June, 2001. He therefore, submitted that the applicant is not entitled to the pensionary benefits and the application should be rejected.
10 Having heard learned Advocates for the parties and having considered their rival submissions, in the peculiar facts of the case as well as considering the judgment of the Apex Court, cited by the Advocate on behalf of the respondent Corporation, the Court is of the view that, the applicant has rightly raised this grievance before the court as he is eligible and entitled to get the pensionary benefits in place of contributory provident fund. The applicant was in service in 1983 and Circular dated 25.10.1983 makes it abundantly clear that those employees who want to continue under the contributory provident fund scheme, shall file the verification by 02.01.1983 and it further provides that those who will not inform in writing shall be treated to have accepted the pension scheme and further actions will be taken accordingly. In the present case, since the applicant wanted to join pension scheme the applicant did not file any verification. The applicant has made it clear that not filing the verification goes to show that he wanted to join pension scheme and did not want to continue under the current Contributory Provident Fund Scheme. Non-filing of the verification, makes it clear that, the applicant was to be treated under the pension scheme. This was made clear by the subsequent Circular dated 02.02.1984 that the verification form is required to be filed only by those employees who wish to continue in the current Contributory Provident Fund Scheme, meaning thereby that, other employees, would be treated to have accepted the Pension Scheme. Since in 1984 itself it was made clear that, the applicant has decided to get the benefit of Pension Scheme by not filing the verification form, subsequent circulars issued by the respondent Corporation are of no consequence, and on that basis, the pensionary benefit should not be denied by the respondent Corporation to the present applicant. Even after the reinstatement of the applicant on 01.03.2006, pursuant to the order passed by this Court, the GPF amount was deducted from the applicant's salary and the same was produced by applicant to show that the applicant is entitled to the pensionary benefits. The previous as well as subsequent conduct makes it very clear that the applicant was entitled to this benefit. Since this Court has directed to give the consequential benefits and the benefits are not given in the manner in which the applicant is entitled, the applicant had filed Special Civil Application No.7258 of 2008 for appropriate direction to the respondent Corporation, which was converted into the present Misc. Civil Application and is placed before this Court. The decision of the Apex Court, cited by the learned Advocate for the Corporation, in the case of State of Haryana & Ors vs. Babu Singh (supra) is of no assistance to the respondent Corporation. In that case, the petition was dismissed. Thereafter a second petition was filed which was withdrawn. The petitioner thereafter filed an application for revival of earlier petition which was allowed and relief was granted by the High Court. This decision of the High Court was reversed by the Apex Court. It is altogether in different context. In the present case, the petition was allowed and the respondent Corporation was directed to reinstate the applicant and to give all consequential benefits within one month from the date of the receipt of the writ of this Court or certified copy of the order. It is the continuation of the earlier proceedings and there is no separate cause of action. Since the consequential benefits to which the applicant is entitled and not granted the law of equity, justice and fair play requires this court to entertain this application and grant the pensionary benefits. In above view of the matter, the court is of the view that, the grievance ventilated by the applicant in the present application is quite justified and applicant is entitled to the pensionary benefits in place of contributory provident fund scheme.
11 In view of the aforesaid, the respondent Corporation is directed to give pensionary benefits in place of Contributory Provident Fund Scheme to the applicant within one month from the date of receipt of the writ of this court or certified copy of this order whichever is earlier. Since the Court has not gone into other two issues, no opinion is expressed by this Court.
12 Subject to the aforesaid direction and observation, this application is accordingly disposed of without any order as to costs. Direct service is permitted.
(K. A. PUJ, J.) pnnair Top