Punjab-Haryana High Court
Municipal Corporation vs Smt. Motia Devi Widow Of Late Sh. K.L. ... on 31 May, 2000
Equivalent citations: (2000)126PLR607
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Shri K.L. Gulati joined the service of Faridabad Notified Area Committee on 23.1.1961. Faridabad Notified Area Committee later on came to be renamed as "Faridabad Complex Administration" when in 1971 separate District Faridabad was constituted. Shri K.L. Gulati thus became the employee of Faridabad Complex Administration. He retired on 31.10.1994. At that time he was Zonal and Taxation Officer with Faridabad Complex Administration. He died on 3.6.1992. He was not paid pensionary benefits during his life time, although he made requests several time in this behalf. After his death, his wife and children have been requesting Faridabad Complex Administration to release the pensionary benefits/ family pension, to them, in view of the gazetted notification dated 13.1.1975 published on 21.1.1975. Some other employees of Faridabad Complex Administration filed suit titled Hari Chand and Ors. v. Faridabad Complex Administration on 13.9.1990 as they had been denied pensionary benefits. That suit was decreed on 29.3.1993. Appeal of Faridabad Complex Administration was dismissed.
2. Regular Second appeal was also dismissed on 3.3.1994. On these allegations Smt. Motia Devi and others who are wife and children of late Sh. K.L. Gulati filed suit for declaration that they are entitled to the pensionary benefits and they also sought mandatory injunction directing the Municipal Corporation, Faridabad to disburse pensionary benefits to them with interest at the rate of 18% per annum from the date of retirement of Sh. K.L. Gulati i.e. 31.10.1984 till the actual disbursement of pensionary benefits.
3. Defendant Municipal Corporation, Faridabad contested the suit of the plaintiffs urging that the gazette notification dated 13.1.1975 published on 21.1.1975 is not applicable to these employees as was evident from the gazette notification dated 5.3.1993 which had been made applicable with effect from 16.4.1992 for the purpose of regulating payment of pension and general provident fund to the employees of the Corporation. Sh. K.L. Gulati was paid gratuity under the Payment of Gratuity Act of 1972. He was paid contributory provident fund. He was not entitled to pension.
4. On the pleadings of the parties, the following issues were framed by the trial Court:-
1. Whether plaintiffs are entitled to pensionary benefits of Shri K.L. Gulati being his L.Rs till his death i.e 3.6.1992 and plaintiff No. 1 is entitled to family pension w.e.f. 3.6.1992? OPP.
2. Whether suit is with in limitation ? OPP
3. Whether suit is not maintainable in the present form?
4. Whether suit is bad for mis-joinder of parties as plaintiff No. 2 to 6 have no locus standi to file this suit ? OPD
5. Whether the plaintiffs have no cause of action to file this suit ? OPD
6. Whether statutory notice was not served on defendant before filing this suit ? OPD
7. Whether this Court has no jurisdiction to entertain this suit ? OPD
8. Whether suit of plaintiff is false, frivolous and is liable to be dismissed with special costs u/s 35-A CPC ? OPD
9. Whether suit has not been properly valued for the purpose of Court fee and jurisdiction ? OPD
10. Relief.
5. Civil Judge (Jr..Division), Faridabad decreed the plaintiffs suit for declaration that they are entitled to pensionary benefits being the legal representatives/heirs of Sh. K.L. Gulati and also family pension after his death and also for mandatory injunction directing the Municipal Corporation, Faridabad to release the pensionary benefits and family pension to them with interest at the rate of 8% per annum from the date of retirement of Sh. K.L. Gulati till the actual disbursement of pensionary benefits to them and further Municipal Corporation, Faridabad shall be entitled to adjust the contributory fund and other benefits paid to Shri K.L. Gulati, which he would have to forego on becoming entitled to pension, in view of his finding, that the employees of Faridabad Complex Administration became entitled to pension and other benefits etc. In view of clause 10 of the, Haryana Government gazette notification dated 13.1.1975, which made the relevant rules of the Punjab Civil Services Rules as amended from time to time applicable to the employees of Faridabad Complex Administration in the matters of pay, entitlement of leave pension.
Faridabad Complex Administration went in appeal. Appeal was dismissed by the Additional District Judge, Faridabad vide order dated 29.7.1999.
Still not satisfied, Faridabad Complex Administration has come up in this regular second appeal to this Court.
6. Learned counsel for the appellant submitted that the view of the Haryana Government Gazette notification dated 5.3.1993 which came in force wef 16.4.1992, Sh. K.L. Gulati was not entitled to any pensionary benefits. Only those employees of Faridabad Complex Administration would be entitled to pensionary benefits who were/are in its service as on 16.4.1992. Faridabad Complex Employees Pension and General Provident Fund Rules,1993 came into force wef 16.4.1992. These rules shall apply to the employees of the Administration who:
(i) - were/are appointed on or after the 16th day of April, 1992 on whole time regular basis;
(ii) - were working immediately before the 16th day of April, 1992, and opt for these rules.
7. These rules shall not apply to employees who opt out of these rules. The employees who opt for these rules shall cease to avail the benefit of Contributory Provident Fund. Employees who do not opt for these rules would continue to be governed by the provisions regarding Contributory Provident Fund as laid down in the Municipal Account Code, 1930. For the purpose of payment of pension, there shall be established a Pension fund by the Chief Administrator, Faridabad Complex Administration, Faridabad.
8. Learned Counsel for the appellant submitted that prior to the introduction of the Faridabad Employees Pension and General Provident Fund rules, 1993 there was no provision for the grant of pension to the employees of Faridabad Complex Administration. Pension is admissible only to those employees who were in the service of the Faridabad Complex Administration as on 16.4.1992.
9. Learned Counsel for the appellant submitted that the notification dated 13.1.1975 does not entitle K.L. Gulati, to pensionary benefits. An employee of Faridabad Complex Administration will be entitled to pensionary benefits if Faridabad Complex Administration had adopted Punjab Civil Service Rules in matters of pay entitlement of leave, pension etc. as is clear from bye-law 10 of the said special bye-law notified in the Notification dated 13.1.1975. Bye-law 10 says that the Faridabad Complex Administration shall follow the rules in the Punjab Civil Services Rules as amended from time to time in matters of pay, entitlement of leave, pension and relevant provisions of the Punjab Civil Services Rules will be applicable in the Faridabad Complex Administration. It was submitted that Rule 3, 16 Note-1 of the Punjab Civil Service Rules (Vol. II) specifically excludes the employees of the Municipality so far as entitlement to pension is concerned.
10. Learned counsel for the respondent on the other hand submitted that in RSA No. 1867 of 1994 titled Faridabad Complex Administration, Faridabad through its Chief Administrator v. Hari Chand and Ors., decided on 20.2.1995, learned Single Judge of this Court took the view that such employees are entitled to pension. Same view was taken in CWP No. 11057 of 1996 titled K.L. Chawla and Ors., v. The Faridabad Municipal Corporation through its Commissioner, Faridabad, Haryana, decided on 12.8.1999. Learned Counsel for the respondent submitted that the appellant-Municipal Corporation, Faridabad is bound to accept respondent's claim to pension.
11. Suffice it to say, the view taken by the learned Single Judge in RSA No. 1867 of 1994 and the one in CWP No. 11057 of 1996 was not accepted by Hon'ble Division Bench of this Court in CWP No. 842 of 2000 titled Dhan Singh v. Faridabad Municipal Corporation through its Commissioner, decided on 24.1.2000 and held that the pension scheme was applicable to the local bodies including Municipal Corporation, Faridabad with effect from 16.4.1992. Constitutional validity of pension scheme which was made applicable with effect from 16.4.1992 was not challenged by Dhan Singh. " Here also Smt. Motia Devi and others have not challenged the constitutional validity of pension scheme which came into force with effect from 16.4.1992 that is after the retirement of Sh. K.L. Gulati.
12. From the reasons given above, this regular second appeal succeeds and is accepted. In consequence, the impugned judgments and decree passed by the Courts below are set aside and the plaintiffs suit is dismissed. No order as to costs.