Gujarat High Court
Una Nagar Palika vs Chandrikaben W/O Bhurabhai S Bhamat & on 6 October, 2015
Bench: Jayant Patel, N.V.Anjaria
C/LPA/1067/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1067 of 2015
In SPECIAL CIVIL APPLICATION NO. 6137 of 2012
With
LETTERS PATENT APPEAL NO. 1122 of 2015
In
SPECIAL CIVIL APPLICATION NO. 3699 of 2014
With
LETTERS PATENT APPEAL NO. 1124 of 2015
In
SPECIAL CIVIL APPLICATION NO. 11100 of 2014
With
LETTERS PATENT APPEAL NO. 1065 of 2015
In
SPECIAL CIVIL APPLICATION NO. 30402 of 2007
With
LETTERS PATENT APPEAL NO. 1066 of 2015
In
SPECIAL CIVIL APPLICATION NO. 4757 of 2012
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UNA NAGAR PALIKA....Appellant(s)
Versus
CHANDRIKABEN W/O BHURABHAI S BHAMAT &
2....Respondent(s)
==========================================================
Appearance:
MR SP HASURKAR, ADVOCATE for the Appellant(s) No. 1
MR RAKESH PATEL, AGP for the Respondent(s) No. 2 3
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 06/10/2015
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1. Draft amendment granted in LPA No.1067/15.
2. As in all the appeals, common questions arise for consideration, they are being considered Page 1 of 15 HC-NIC Page 1 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER simultaneously.
3. All appeals are directed against the order passed by the learned Single Judge in the respective Special Civil Applications, whereby the learned Single Judge has directed the original respondent no.1appellant municipality to pay the pension to the respective original petitioners.
4. We have heard Mr. Hasurkar, learned counsel appearing for the appellant in all the appeals. Mr. Sahil Shah appears in LPA No. 1122/15 in SCA No.3699/14 for respondent no.1orig. petitioner, Ms. Krishna Raval appears in LPA Nos.1124/15, 1065/15, 1066/15 and 1067/15 for respondents no.1orig. petitioners. Mr. Patel, learned Assistant Government Pleader appears for State in all the appeals.
5. The perusal of the orders passed by the learned Single Judge which are impugned in the present appeals show that the learned Single Judge by relying upon the earlier decision of this Court in Special Civil Application No.3969/11 and allied matters as well as in LPA No.214/11 and allied matters, decided on 03.02.2011, has allowed the petitions.
6. It may be recorded that on facts, there is no much dispute and the same can be summarised as under: Page 2 of 15 HC-NIC Page 2 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER (1) The original petitionersrespondents no.1 herein in the respective appeals were appointed by the municipality and they were in service of the municipality.
(2) After the appointment, the employee concerned continued in service until he reached to the age of superannuation, so far as LPA No.1066/15 is concerned. Whereas, in the rest of the Letters Patent Appeals, the services of the employees concerned came to an end on account of death of the employees.
(3) It is an undisputed position that the total length of service in respect of all cases has exceeded 10 years which is the minimum requirement for eligibility of pension.
(4) In respect of all employees, which is subject matter of the present group of appeals, they were member of GPF and GPF contributions were being deducted by the municipality from their salary from time to time until their services came to an end.
(5) After reaching to the age of superannuation or upon death when the services of the respective employees came to an end, the applications were made for sanction of pension in accordance with law. However, such applications were not accepted. Under the circumstances, the concerned family members or Page 3 of 15 HC-NIC Page 3 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER the employees, as the case may be, preferred respective Special Civil Applications.
(6) The learned Single Judge allowed the petitions by directing the Municipality to sanction the pension in accordance with law and to pay the same.
7. Under the circumstances, all appeals before the Division Bench of this Court.
8. As such, it can be said that the issues which arise for consideration in the present appeals are already covered by the decision of the another Division Bench of this Court (Coram :
Jayant Patel & J.C. Upadhyay, J.J.) wherein one of us (Jayant Patel, ACJ.) was member of the Bench in the case of Chief Officer vs. Mohmad Irshad Husenbhai Baloch & Ors. in LPA No.214/11 and allied matters decided on 03.02.2011 reported at 2011 (1) GCD 569 (Guj) (DB). We may record that in the aforesaid decision of the Division Bench of this Court, it was recorded and observed thus "1. All the appeals are admitted. Learned counsel appearing for original petitioner Mrs.Krishna Raval has waived notice of admission and Mr.N.J.Shah, learned AGP has appeared for the District Collector and Local Fund Examiner - State authorities. We have heard learned counsel for both the sides for final disposal of the appeals.
2. As in all the matters, common question arise for consideration, they are being Page 4 of 15 HC-NIC Page 4 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER considered by common judgment.
3. All the appeals arise against the order passed by the learned single Judge of this Court in the respective Special Civil Applications, whereby the learned single Judge has directed the authorities to finalize the amount payable by way of pension on the premise that the original petitioner concerned employee in the petitions were entitled to get the pension. For the sake of convenience, the parties shall be referred as per the status in the original petition hereinafter.
4. The relevant facts are that the concerned employees were initially working as daily wager with the concerned panchayat prior to the conversion of panchayat into municipality, namely, Una Nagarpalika. It appears that the panchayat was converted into the municipality and the concerned employees were also continued as daily wagers on the said post. Since they were not granted permanency benefits nor were absorbed in the permanent setup, dispute was raised before the Industrial Tribunal being Reference (ITR) No.349 of 1987 and others, and in the said reference, the Tribunal passed the award dated 12.2.1997 whereby the concerned employees were directed to be made permanent w.e.f. 1.1.1989 and the difference of pay and allowance were ordered to be paid w.e.f. 1.1.1990 onwards. That award is not upset by the higher forum. Since there was no challenge and, accordingly, w.e.f. 1.1.1989, all the concerned employees were absorbed in the permanent setup of the municipality and they were granted benefits of the permanent employees. It appears that the employees concerned were treated in the scheme of GPF and the deduction from their salary was also being made by the municipality for crediting amount in the respective GPF account of the concerned employees. All the concerned employees reached the age of superannuation and they have retired from service, save and except for employees concerned in Special Civil Applications No.30660 of 2007 and 9270 of 2010 as they have expired prior to the reaching to the age of superannuation. The petitioners concerned claimed for pension and family pension on the Page 5 of 15 HC-NIC Page 5 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER basis of the service completed by them. In respect of employees concerned in Special Civil Application Nos.2048 of 2008 and 2143 of 2008, the pension has been sanctioned by the competent authorities, but not on the post upon which they ended their service, but on the post which they were holding during the period when they were with the concerned panchayat, namely, the cleaners though said employees retired as drivers. It is on account of the nonpayment of pension on the post at which they retired, all the petitions were preferred. The learned single Judge vide impugned order, ultimately found that all the concerned employees were covered by the policy of the Government to treat the petitioners eligible for grant of pension. Under the circumstance, all the appeals before us have been preferred by the municipality with whom the concerned employees were in service.
5. We have heard Mr.K.M.Patel, learned sr.counsel appearing with Mr.Devnani, learned advocate for the appellant, Mrs.Krishna Rawal for respondent No.1 - original petitioner in all the matters and Mr.N.J.Shah, learned AGP for the State authorities.
6. It is undisputed position that all the concerned employees were treated in the GPF scheme, therefore, respective GPF accounts were opened and the deduction was also made from their salary from the date on which they were made permanent and until they retired from service or their service ended on account of their death. It is also undisputed position that all such employees were not treated in CPF scheme, which is applicable to other municipal employees and no deduction for the purpose of CPF has been made by the municipality from the salary of concerned employees. If the employee, when he is absorbed in service, is treated for all purposes in the GPF scheme for pensional benefits and not treated in the CPF scheme for lumpsum amount, and the said position continued until the person concerned reached to the age of superannuation or otherwise, would it be open to the employer or the concerned authorities to deny the pensionary benefits after retirement on the ground that the Page 6 of 15 HC-NIC Page 6 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER employees concerned was not eligible for pension as per the GPF scheme. In our view, if such is permitted to be entertained and accepted, it would not only be highly improper on the part of the authority, but can also be termed as atrocious action, which would be absurd on the face of it.
7. The learned counsel for the appellant, however contended that the employees concerned, who were in the then panchayat service and subsequently continued in the municipality, were not recruited by the regular selection process and it was submitted that it is only w.e.f. 1.1.1989 they have been granted permanency benefit. When on 1.1.1989 permanency benefits were granted, they were taken as municipal employees and not as employees of the panchayat. Under the circumstances, they would be entitled for all benefits, which may be available to other municipal employees. It was submitted that as per the decision of this Court in case of Chorwad Gram Panchayat Vs.Ramniklal Dharshi Shah reported at (2010)1 GCD 675, such employees who were not recruited by the regular selection process of the then Gram Panchayat, could not be termed as in panchayat service and, therefore, would not be eligible for the pensional benefits as available to other employees of the panchayat or Government service. Learned counsel, therefore, contended that if the employees were of the municipality, there is no scheme of the Government for pensional benefits, but the scheme applicable would be CPF to the employees of the municipality. It was submitted that the learned single Judge was guided by the resolution of the Government, which in the submission of the municipality is not applicable and, therefore, the order passed by the learned single Judge is erroneous.
8. There cannot be any different view in respect of the employees taken by this Court in Chorwad Gramp Panchayat (supra). However, the point which arise for consideration in the present group of matters did not arise in the said case inasmuch as if for all purposes the employees concerned were treated as in panchayat service with the scheme of the Page 7 of 15 HC-NIC Page 7 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER Government for pension by deduction of GPF, would it be open to the Government or the municipality to deny the pensional benefits, if the employees concerned have retired from service. It is true that if one was not appointed by regular recruitment process, he may not fall in the panchayat service. In our view, the factum of giving treatment by the municipality and Government to all the concerned employees in the present case as member of the panchayat service and the consequent action of regular deduction of contribution of GPF account that too from the inception of the service as the permanent employees until reaching to the age of superannuation or until the services came to an end, would be sufficient to decline the entertainment of such plea taken by municipality and/or the Government as the case may be, that the employees concerned in view of the aforesaid decision of this Court in case of Chorwad Gram Panchayat (supra), would not be entitled for the pensional benefits. Be it noted that it is not the case of the appellant or any of the State authority that it is on account of any fraud or misrepresentation or any mischief played by the concerned employees at the relevant point of time or even thereafter they were treated as member of GPF scheme. Therefore, the question is to be examined in light of the bonafide action on the part of employee as well as the concerned officer of the employer or the Government, as the case may be. It is true that in normal circumstance, such estoppel may not operate against any statute, but it is not a mere case of considering the question of estoppel. In our view, a case of conduct of the party concerned coupled with the alteration of the position of the party concerned throughout. At any point of time, neither the municipality or the Government has refunded the amount of contribution nor they have intimated to the employees concerned for their mistake or otherwise. After completion of the service, if such a plea is entertained or is accepted, in our view, it would result into allowing the atrocious treatment to be played by the municipality or the Government or its officers, which would violate Article 14 of the Page 8 of 15 HC-NIC Page 8 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER Constitution.
9. The aforesaid is coupled with the circumstance that it is not that in every case whenever a person is daily wager or a temporary employee of the Government, he would not be eligible or entitled for pension. On the contrary as per the policy of the Government, even if a person is an adhoc/temporary employee, after completion of requisite length of service, he is to be treated as eligible for the scheme of pension and once he is treated as eligible for the scheme of pension, and his contribution are being deducted from his salary, he would be eligible for the pension upon completion of the requisite length of service. Therefore, there is no absolute bar operating upon the entitlement of the pension by the employees of the then Gram Panchayat, who are treated as for all purposes covered by the scheme of pension for the contribution from their salary and same position continued until they reached to the age of superannuation or until the end of their service.
10. The learned single Judge additionally has relied upon the Government Resolution which interalia provides for pensional benefits of the employees of the then Gram Panchayat, which has been converted into municipality and they are absorbed in the municipality.
11. In view of the aforesaid, we find that the ultimate conclusion recorded by the learned single Judge of treating the concerned employees as eligible for pension appears to be correct and consequently the direction issued for disbursement of the pension/family pension does not deserve to be interfered with.
12. It was submitted by the learned counsel for the original petitioners that in respect of two petitions, Special Civil Application No.2048 of 2008 and 2143 of 2008, while fixing the pension, the difference of the salary is also recovered and she submitted that the same may be directed to be paid. In our view once the pension is to be fixed on the basis of their payscale prevailing at the time of their retirement, consequently while disbursement of Page 9 of 15 HC-NIC Page 9 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER the said amount, the pension already paid would be required to be adjusted and the remaining amount will be required to be paid. Therefore, if any amount has been unauthorizedly retained or withheld falling part of the pension, the same naturally will have to be disbursed simultaneously.
13. Mr.Patel, learned sr.counsel for the appellant lastly contended that as the time granted by the learned single Judge has expired to forward the papers of the pension, some additional time may be granted.
Hence,considering the facts and circumstances, the pension papers in respect of the employees concerned will be forwarded within period of four weeks from today and, thereafter, the concerned authority shall examine and sanction the same in accordance with law within eight weeks thereafter, and the actual disbursement shall be made of the requisite amount to the concerned persons within four weeks therefrom.
14. Hence, subject to the aforesaid observation and the directions, all the appeals are dismissed. No order as to cost."
9. It may also be recorded that based on the above referred decision of this Court in the case of Chief Officer (supra) (LPA No.214/11 and allied matters), the issue again came up for consideration in respect of the employees of the very appellant municipality in LPA No.96/13 and allied matters and the another Division Bench of this Court( Coram : M.R. Shah & S.H. Vora, J.J.) by relying upon the above referred decision of this Court in LPA No.214/11 and allied matters, dismissed the Letters Patent Appeal vide its decision dated 31.01.2013. The matters were also carried before the Apex Court in SLP (Civil) No.15691 to 15700 of 2013 and such Special Leave Page 10 of 15 HC-NIC Page 10 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER Petitions were dismissed by the Apex Court on 16.09.2013. Not only that but contempt petitions were filed before this Court since the judgment of the learned Single Judge read with the order of the Division Bench were not complied with and ultimately, the pension was sanctioned in respect of all the employees and various decisions of this Court are complied with for the payment of pension to the respective employees of the municipality. Some of the contempt petitions being MCA No.802/13 and others were disposed of vide order dated 18.02.2014, which records that the order has been complied with not only for the payment of pension, but the additional interest at the rate of 7.5% p.a. from the date when the amount was payable has also been paid to the employees concerned.
10. In view of the aforesaid fact situation, as such, the present Letters Patent Appeals as being covered by the above referred earlier decisions of this Court which has been ultimately not interfered with by the Apex Court and accepted by the appellant municipality at the later stage, it may not be required to be entertained.
11. However, Mr. Hasurkar, learned counsel appearing for the appellant made twofold submissions and he further contended that the said aspects were not brought to the notice of the Court at the time when earlier Letters Patent Appeals were Page 11 of 15 HC-NIC Page 11 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER decided and therefore, this Court may hold the earlier decision as per incuriam and a different view may be taken than was taken in the above referred Letters Patent Appeals. The first submission was that in the earlier decision of this Court, the employees concerned were appointed by the then Gram Panchayat which is subsequently converted into appellant municipality and therefore, the present employees in respect of whom the petitions were filed before the learned Single Judge cannot be said to be on the same footing since all the original petitioners herein were appointed by the municipality itself and not by the then Gram Panchayat. In furtherance to his submission, the learned counsel submitted that in panchayat service pension would be available to the employees of the panchayat whereas such would be unavailable to the employees of the municipality. The second contention raised was that merely because GPF contribution is made and the amount is deposited in GPF, it cannot be said that the employees concerned would be entitled to pension unless it is expressly shown that the employees concerned are covered by a particular rule or resolution of the Government which makes the employees concerned as entitled for pension. In his submission, in absence thereof, the pension would not be available nor the municipality could be directed to pay pension either directly or through the Government.
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12. The first contention raised for making distinction to the original appointment of the employees concerned in our view would be inconsequential for the simple reason that had the original petitioners treated as employees of municipality for the purpose of CPF Scheme, the matter might stand on different footing and different consideration, but once the employees concerned were treated as member of GPF and the contribution for GPF was deducted from time to time, whether they were appointed by the then Gram Panchayat or municipality would not make any difference for their status as the member of the GPF. It is not the case of the appellant municipality that by mistake they were admitted as member of GPF nor it is the case of the municipality that by misrepresentation or fraud the respective employees had become the member of GPF. Under these circumstances, we find that the distinction as sought to be canvassed would be inconsequential for entitlement of the pension in capacity as the member of GPF by the employee concerned.
13. The second contention raised that unless expressly demonstrated before the Court for entitlement of the pension as per rules or as per Government Resolution, such amount of pension would be unavailable since the municipality in any case had to deposit the amount with the Page 13 of 15 HC-NIC Page 13 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER Government treasury as per section 57A of the Gujarat Municipalities Act, in our view also cannot be countenanced for two reasons, one is that it is not a matter of depositing the amount in the Government treasury as sought to be canvassed, but is a matter of depositing the amount in GPF fund which is a separate fund and being governed by separate mechanism, viz., Bombay General Provident Fund Rules. Secondly, once the municipality has treated the employees concerned as member of GPF and has deposited his GPF contribution with the GPF, it would not lie in the mouth of the municipality to contend that since the municipality had to deposit the amount of contribution in Government treasury, it should not be treated as contribution of GPF entitling the employee concerned for pension.
14. In view of the above, we do not find that a different view deserves to be taken than was taken by this Court in respect of the employees of the very municipality who were similarly situated and for whom this Court has found that the pension was available and the said order is not interfered with by the Apex Court in the above referred SLPs.
15. In view of the above, all appeals are meritless and therefore dismissed. Considering the facts and circumstances, no order as to costs.
16. Mr.Hasurkar, learned counsel for the Page 14 of 15 HC-NIC Page 14 of 15 Created On Sat Oct 10 00:48:49 IST 2015 C/LPA/1067/2015 ORDER municipality, after pronouncement of the order, prays that the operation of the order be stayed for some time so as to enable his client to approach before the higher forum.
17. Considering the facts and circumstances and more particularly the aspect that the issues are already covered by the earlier decision of this Court, which has not been interfered with by the Apex Court in the above referred Special Leave Petitions, such request is declined.
(JAYANT PATEL, ACJ.) (N.V.ANJARIA, J.) bjoy Page 15 of 15 HC-NIC Page 15 of 15 Created On Sat Oct 10 00:48:49 IST 2015