Gujarat High Court
Karl vs Ahmedabad on 19 June, 2007
Author: Sonia Gokani
Bench: Sonia Gokani
SCA/5799/2011 10/ 10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5799 of 2011 For Approval and Signature: HONOURABLE MS JUSTICE SONIA GOKANI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= KARL MARX GENERAL LABOUR UNION(AHMEDABAD MUNICIPAL CORPORATI - Petitioner(s) Versus AHMEDABAD MUNICIPAL CORPORATION - Respondent(s) ================================================= Appearance : NOTICE NOT RECD BACK for Petitioner(s) : 1,PARTY-IN-PERSON for Petitioner(s) : 1, MR HS MUNSHAW for Respondent(s) : 1, ================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 29/06/2012 CAV JUDGMENT
1. This petition is preferred under Articles 14,17 and 21 of the Constitution of India inter alia with a request to issue a writ of mandamus or an appropriate writ to permit the petitioner to opt for General Provident Fund Scheme ('GPF Scheme' for short), which is in force in the respondent Corporation instead of Contributory Provident Fund Scheme ('CPF Scheme' for short) and to direct the respondent-Corporation to permit the petitioner to fill up the form of GPF Scheme. Mr. Hemant Balkrishna Gor, Secretary, Karl Marx General Labour Union is power of attorney holder of Minakshiben Kantilal Shah, petitioner herein.
2. The petitioner has been working with the respondent Corporation as Typist-cum-Clerk since 2.12.1980. CPF Scheme was in force in the respondent-Corporation and, thereafter, GPF Scheme was introduced, wherein the pension scheme was adopted. Time was granted upto 30.6.2001 to the employees to opt for either of the Schemes being CPF Scheme or GPF Scheme. It is averred by the petitioner that being unaware of the benefits of these schemes, the petitioner could not avail of the benefits of the GPF Scheme and, therefore, within the stipulated time, she was unable to given an option.
3. The petitioner and many other employees approached this Court by way of Special Civil Application Nos.15511,15512 and 15531 of 2007. After hearing the parties, the Court directed the petitioner to make representation to the authority vide its judgment dated 19.6.2007. Such representation was made and the same was rejected.
4. It is the case of the petitioner that many other employees were permitted to opt for GPF Scheme even after the stipulated time period was over. Application was made by Mr.Utpal Chimanlal Padia, Deputy Municipal Commissioner, (North Zone), to the Chief Accountant (General) to join from CPF Scheme to GPF Scheme in the month of August, 2002 and he was permitted ,whereas the present petitioner has been denied and, therefore, the challenge is made on the ground of such a denial being unreasonable, arbitrary and discriminatory.
5. It is the say of the petitioner that nearly 300 employees are wanting to join GPF Scheme and the respondent-Corporation permitted only Mr.Utpal Chimanlal Padia for opting beyond the stipulated period and, therefore, such action of denial to the petitioner requires interference.
Party-in-person representing the petitioner submitted that additional form opting for GPF Scheme was explicitly given by her.
6. On due service to the respondent-Corporation, it inter alia contended that no relief can be made available to the petitioner. At the outset, it is urged that Secretary, Karl Marx General Labour Union is not competent to prefer the present Special Civil Application to resolve the individual grievances of the employee and the Secretary may have a right to file reference before the Industrial Court but the Labour Union cannot institute a writ petition for individual grievances under Article 226 of the Constitution of India.
7. It is further urged that in response to the direction of this Court, Municipal Corporation decided the representation by its order dated 20.10.2007 and this petition has been preferred after a lapse of nearly 4 years and it is barred by delay, latches and acquiescence.
8. It is further contended that the allegations made against Mr.Utpal Chimanlal Padia for his having been granted the benefit of GPF Scheme are ex facie wrong. It is submitted that previously the employees of Municipal Corporation were covered by the Scheme of GPF. However with effect from 1.1.1983, it was resolved to implement the Scheme. Therefore, the option was invited from employees and the last date of such option was extended by way of several circulars issued in this respect and such a date fixed was extended upto 29.5.2001. It is the say of the respondent-Corporation that the Finance Department accepted several options in the meanwhile and it was only on the date of retirement that these facts were revealed to the Municipal Corporation and, therefore, the Finance Department examined nearly 96 cases between 30.6.2001 and 14.8.2003, who had opted for pension scheme and, there option was revealed through deduction of GPF in the computerized payroll statement, which reached the Finance Department on the date of their superannuation. Since subsequently this fact was noticed by the Deputy Chief Accountant Officer, therefore, Municipal Commissioner's attention was drawn by Chief Accountant and, it was resolved that such employees may be granted benefit of pension scheme. A decision in this respect has been taken by the Municipal Commissioner on 13.4.2005 and such circulars are annexed with the petition. Affidavit-in-rejoinder is filed by Secretary, Mr. Gor, wherein he has stated that the Circular is substantive and indicative that those employees, who were desirous of opting for CPF Scheme had to fill up the option form but those who had opted to join GPF Scheme were not required to fill up any option form and, therefore, by default they could be treated to have opted for GPF Scheme.
9. As can be noted from Circular No.52 of 1.2.1984 issued by the Chief Accountant Department, the sanction was obtained from the State Government on 16.1.1984 for the proposed pension scheme vide Resolution 428 dated 26.7.1983. This came into effect from 1.1.1983. Those employees who joined Municipal Corporation on 1.1.1983 or subsequent thereto were given effect of such pension scheme satisfactorily. However, those who were in the service prior to 1.1.1983 and were in the service on the date on which such circular was issued, were given the option.
It is clearly mentioned that those employees,who were desirous to continue in the CPF Scheme shall have to fill up prescribed form for such an option and shall have to submit the same to the Chief Accountant Department after obtaining signature of the officer along with the service book. Such an affidavit was to be filed by only those employees, who were desirous to continue in the CPF Scheme and the rest of the employees were to be treated under the pension scheme. Such an option was to be accepted till 29.4.1984 and no extension was permissible thereafter. They were those employees, who retired on 1.1.1983 and, thereafter were given such an option. There are other circulars periodically issued and last one was of 14.8.2003, which mentioned that there were sufficient particulars given for making an option for CPF Scheme. However, no such option would be accepted nor any change would be made in the computer data in respect of such pension. Subsequent thereto, there was a circular issued by the Finance Department on 13.4.2005 by a specific mentioning that those employees who have joined from CPF to GPF till 14.8.2003 only will have to be treated for the purpose of pension and not the rest.
10. Learned Senior Advocate Mr.S.N.Shelat appearing for learned advocate Mr.Munshaw has fervently submitted that Secretary, Labour Union has no right to file such a petition for and on behalf of employee Minakshiben Kantilal Shah. He further urged that permitting the petitioner to avail the option of GPF, at this stage would open Pendora's Box as the person has consciously opted for CPF Scheme even though various circulars for long duration were issued for the benefit of employees. At this stage, the petitioner cannot insist on issuance of writ of mandamus for the said purpose.
11. As against that Secretary, Labour Union, who represented petitioner Minakshiben Kantilal Shah urges that she has already filed her affidavit in support of the power of attorney granted in favour of the present petitioner. When she has explicitly given power of attorney to the present petitioner appointing him for prosecuting the present petition, no objection could be raised against maintainability of the petition.
12. On thus having heard learned Senior Advocate for the respondent and the power of attorney holder of the petitioner Minakshiben Kantilal Shah, it can be noted that present petitioner and others had preferred Special Civil Application Nos.1551 of 2007,15512 of 2011 and 15531 of 2007, whereby vide common order, this Court (Coram: H.K.Rathod, J.) vide order dated 19.6.2007 directed the parties to make a detailed representation to respondent-Corporation and also to furnish copy of the judgment of the Apex Court in the case of Union of India and another vs. SL Verma and others reported in 2007 (112) FLR
697. The Apex Court has held therein that the moment pension scheme comes into effect, question of exercise of option is not much relevant and the employees are entitled for such pension under the pension scheme. The Court further directed the respondent-Corporation to consider such representation as well as decision of the Apex Court by adopting systematic approach and pursuant to such direction representation was also made to the Municipal Corporation to pass a detailed order dated 20.10.2007 and rejected such a request.
13. As can be seen from the rejection of such request, Municipal Corporation also noted that from 25.10.1983 till 29.5.2001 nearly 8 circulars issued. There are nearly 525 employees, who have not opted for the benefit of pension scheme and continued themselves in the CPF Scheme. There are nearly 300 employees, who after 2001, retired under the CPF Scheme. It also can be noted that the petitioner was made aware of 8 circulars as reflected in this rejection order issued time and again, for availing opportunity to opt from either of the two schemes. As no benefit was taken of the pension scheme when sufficient opportunities had been already given and no option having been given for availing of the pension scheme, additional opportunity was denied. The Municipal Corporation also noted the fact that opinion of the Senior Counsel was obtained in respect of the pension scheme.
14. Dealing firstly with the maintainability of the petition, as the employee concerned has already given power of attorney in favour of Mr.Hemant B.Gor for him to contest the present petition for and on behalf of petitioner, submission of the respondent-Corporation on the ground of technicalities is not being entertained.
15. With regard to the challenge to the decision of the Commissioner of denying any relief pursuant to the representation made by the employees subsequent to decision of this Court in earlier petitions preferred, vital point that is required to be regarded is that for nearly 18 years 8 Circulars were issued periodically for employees to opt from either of the schemes. In such circumstances, nobody can claim to be unaware of implication of such scheme. As rightly pointed out by the petitioner that 1984 circular does mention that only those who opt for CPF Scheme need to give an option form and the rest of them would be covered under GPF Scheme by default. The petitioner has not specifically made a mention anywhere whether explicitly any such option was given by her or not. Considering the fact that earlier petitions were also preferred and this petition is preferred as well challenging the decision of the respondent-Corporation of denying the benefit of GPF Scheme, it can be presumed that she had already filed an option which, at later date, is not permitted to be changed. If Corporation, by issuance of 8 circulars, made available to its employees periodically, the options of two scheme and the petitioner on having once opted for such a scheme chose at a much later date to opt out of it, denial on the part of the Municipal Corporation on representation cannot be interfered with.
16. On the ground of equality, challenge is made to the inclusion of 96 employees beyond the stipulated period, who were permitted to avail the option of GPF Scheme. There is sufficient explanation given by the respondent-Corporation in the affidavit-in-reply, whereby a categorical mention is made of the fact that the option was already given by these employees. However, that had not reached the Finance Department and the data conspicuously reflected the employees having made out the option much prior to the expiry of the stipulated period. Therefore, availing the benefit of GPF Scheme to those 96 employees cannot weigh with this Court as far as the case of the present petitioner is concerned.
17. In an institution where pension scheme was sanctioned making it effective from 1.1.1983 by the State Government any dilemma on the part of the employees cannot be entertained at a sweet will of such employee as that would have far reaching effect on the financial aspect of the respondent-Corporation and, therefore, those employees, who have not acted within time bound schedule or if once having already acted upon the schedule, cannot be allowed to approbate or reprobate.
18. Resultantly, this petition deserves no entertainment and the same stands rejected. Since the petitioner appearing as party-in-person is not present, Registry is directed to serve him copy.
(Ms.Sonia Gokani, J.) sudhir