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2019 DIGILAW 1037 (GUJ)

Leelaben Dinkarrai Pujara v. State of Gujarat

2019-10-23

S.R.BRAHMBHATT

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JUDGMENT : S.R. Brahmbhatt, J. Heard learned counsels for the parties. 1. The present petition has been taken out for the following reliefs: "(A) That your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and or certiorari and/or any other appropriate writ, order or direction, directing the Respondent No. 2 authority to grant the benefits of pension to the Petitioner on being attaining the age of superannuation with interest at the rate of 18% in the interest of justice and be further pleased to hold that the petitioner is entitled to the pension amount continuously and uninterruptedly. (B) Your Lordships be pleased to direct the Respondent authority to start paying pension due to the petitioner for with, pending the admission, hearing and final disposal of this petition. (C) Award the cost (D) Grant any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice." Thus, essentially, what is prayed for in the petition is the denial of the pensionary benefits flowing from the scheme of pension as per Morbi Nagarpalika Pension Rules on account of petitioner not giving option as she had no knowledge thereof. 2. Facts in brief, as could be culled out from the memo of petition, deserve to be set out as under: The petitioner was appointed under the Respondent No. 2 as Teacher in Balmandir. The petitioner served as Teacher for a continuous period of 21 years from the date of her appointment under respondent no. 2 and her service is without any break and she is having a good service record all throughout her service career. It was case of the petitioner that there were few employees who had grievances against Respondent no. 2 for not regularizing their services despite of continuous period of services and they preferred Writ Petition being Special Civil Application No. 6555 of 1989 before this Court and this Court vide order dated 17.9.1992 directed the respondent no. 2 to regularize the services of those employees and to grant all consequential benefits. The petitioner could not make such application at that point of time due to unavoidable circumstances. Similarly, one Hansaben M. Mehta preferred Special Civil Application No. 18609 of 2006 before this Court seeking direction against respondent no. 2 to regularize the services of those employees and to grant all consequential benefits. The petitioner could not make such application at that point of time due to unavoidable circumstances. Similarly, one Hansaben M. Mehta preferred Special Civil Application No. 18609 of 2006 before this Court seeking direction against respondent no. 2 to grant benefits as per the law and this Court vide order dated 02.08.2007 allowed said petition. The respondent no. 2 addressed a letter to petitioner on 24.2.2009 informing that as per the age criteria, the retirement of petitioner is due on 31.12.2010 and accordingly, the petitioner vide letter dated 6.12.2010 requested the respondent no. 2 that as petitioner is likely to retire, the petitioner may be given the benefits of prevailing pension scheme. The respondent no. 2 never paid any heed to request of petitioner. Accordingly, the petitioner preferred Special Civil Application No. 2468 of 2011 before this Court seeking pensionary benefits and other benefits and this Court vide order dated 4.3.2011 directed the petitioner to make fresh representation to respondent no. 2 within period of 2 weeks from the date of receipt of order and also directed the respondent no. 2 to decide the said representation in accordance with law within period of one month from the date of receipt thereof. Accordingly the petitioner made fresh representation on 15.4.2011 to respondent no. 2 and vide communication dated 22.4.2011 the respondent no. 2 has refused to grant any type of pension and pensionary benefits to the petitioner on the count that the petitioner had not opted for option form for getting pension benefits. The petitioner has assailed said order/communication dated 22.4.2011 by preferring this petition on the grounds mentioned therein. 3. Learned counsel appearing for petitioner invited Court's attention to page-45 and 63 in support of his submission to indicate that options were invited from the employee to opt for pensionary scheme from the then existing scheme of Provident Fund, in which it was Contributory Provident Fund Scheme prevalent. The said option form were required to be given to the employee and in the instant case, the petitioner, who retired on 31.12.2010, she did not receive any option form to the employer for granting pensionary benefits. 4. The counsel for the petitioner relied upon decision in case of Dakshin Haryana Bijli Vetran Nigam and ors. Vs. The said option form were required to be given to the employee and in the instant case, the petitioner, who retired on 31.12.2010, she did not receive any option form to the employer for granting pensionary benefits. 4. The counsel for the petitioner relied upon decision in case of Dakshin Haryana Bijli Vetran Nigam and ors. Vs. Bachan Singh, reported in AIR 2009 SC 2745 , and made emphasis on para 26 as well as para-5, to support his contention that it was the duty cast upon the respondent employer to see to it that option forms were received by the employee. 5. The counsel for the respondent invited Court's attention to the affidavit in reply and indicated therefrom that the option, if not exercised by the employee, then, there was no other way to thrust upon the said option upon the employee. The public notice as well as notice on the notice board inviting employees to opt for the scheme were not disputed and therefore, many employees exercised the option as could be seen from the document produced on record at page-66, as forming part of affidavit-in-rejoinder on behalf of respondent no. 2. The said document would clearly indicate that as many as 324 employees of the nagarpalika exercised their option, it can not therefore be permitted to urge on behalf of petitioner that the petitioner did not have knowledge of the said option. 6. The Court has heard learned counsels for the parties and perused the papers. The Court is of the view that the decision cited at bar on behalf of petitioner in case of Dakshin Haryana Bijli Vetran Nigam and ors. Vs. Bachan Singh (supra) would be of no avail as the fact of that case enjoins upon the employer to have the option form being recorded and noted by the employer. As could be seen from the reproduction of the circular or memorandum, which have been part of para-5 of said decision also reproduce here for ready reference: 7. The appellants had issued instructions dated 6.8.1993 for the grant of benefit of work-charge service towards pensionary benefits. The said letter of 6.8.1993 is reproduced as under:- "5. The appellants had issued instructions dated 6.8.1993 for the grant of benefit of work-charge service towards pensionary benefits. The appellants had issued instructions dated 6.8.1993 for the grant of benefit of work-charge service towards pensionary benefits. The said letter of 6.8.1993 is reproduced as under:- "5. The appellants had issued instructions dated 6.8.1993 for the grant of benefit of work-charge service towards pensionary benefits. The said letter of 6.8.1993 is reproduced as under: "From : The Additional Secretary, Haryana State Electricity Board (HSEB), Panchkula Memo No. Ch. 9/Pen/G-G-43(93) Dated 6.8.93 Sub: Amendment in the Punjab CSR Vol. II-Adoption of State Govt. Notification The Haryana State Electricity Board in its meeting held on 23.6.1993 has approved the adoption of Haryana Govt. Notification No. 1/2 (55)-88-2 FR-II dated 4.2.92 (copy enclosed for ready reference) with regard to the counting of service rendered by the workers in the work charged capacity towards pensionary benefit scheme. 2. However, most of the Board's work-charged employees are members of Employees Provident Fund (EPF). As such, the pensionary benefit would be subject to the following conditions:- (i) On regularization from work-charged to regular employee, the employee has to submit an option within a period of 3 months from the date of regularization or from the date of issue of this circular, whichever is later as to whether he/she intends to count the period of work-charged service rendered by him/her towards pensionary benefits or intends to continue to be a member of EPF. The option is required to be furnished in writing to his drawing & Disbursing Officer who will authenticate and record its entry in the service book of the employee and also paste the same in the service book so as to form a permanent record for future reference. The Drawing & Disbursing Officer will also inform about his/her option to the appointing authority immediately. (ii) The option once exercised will be final and not to be allowed to be changed in any circumstances. In case option is not given within the stipulated period of three months, it will be presumed that he/she intends to continue to be a member of EPF. (iii) In case, he/she opts for pensionary benefits, he/she has to refund the entire amount of employee's contribution along with interest thereon, towards their EPF in lumpsum for crediting to the Board's account, Employee's contribution alongwith interest is to be deposited with the Board for crediting to his/her GPF account. 3. (iii) In case, he/she opts for pensionary benefits, he/she has to refund the entire amount of employee's contribution along with interest thereon, towards their EPF in lumpsum for crediting to the Board's account, Employee's contribution alongwith interest is to be deposited with the Board for crediting to his/her GPF account. 3. Similarly, the above benefit will also be available to the pensioners/recipients of family pension of the Board on the same terms and conditions with the exception that they will have to deposit the amount contributed by the Board as Employee's contribution towards EPF alongwith interest thereon, in lumpsum. The pensioners/recipients of family pension will have to give an Affidavit to the fact that he/she will not claim any interest on the arrear of pensionary benefits which become payable due to adoption of the State Govt. circular. The pensioners/recipient of family pension will submit their option within 3 months from the date of issue of this circular, for availing pensionary benefits, to the Head of the office last attended. The option once exercised will be final. In case, option is not given within the stipulated period of 3 months, it will be presumed that he/she intends to continue to be a member of EPF. 4. These instructions may please be got noted from all the employees and acknowledge and receipt of the letter. Sd/- Under Secretary (PW) For Additional Secretary, HSEB, Panchkula" The said instructions resulted into the court passing the observation in para-26, which are reproduce here under: "26. In view of the law as has been articulated in a large number of cases where this court has observed that any discriminatory action on the part of the Government would be liable to be struck down. Hence, in this case, it would be totally unreasonable and irrational to deny the respondent the pensionary benefits under the scheme particularly when the appellants have failed to produce any record showing that the instructions dated 6.8.1993 and 9.8.1994 were actually got noted in writing by the respondent. In the absence of any such material it can well be inferred that the respondent had no knowledge about the options called by the appellants. 8. Therefore, in order to bring about the analogy between the two, it is incumbent upon the petitioner to point out similar obligation on the part of the employer. In the absence of any such material it can well be inferred that the respondent had no knowledge about the options called by the appellants. 8. Therefore, in order to bring about the analogy between the two, it is incumbent upon the petitioner to point out similar obligation on the part of the employer. In the instant case, the scheme in question does not in any way contain such obligation on the part of the employer, which would ensure that employer was under obligation to notify to each of the employee and obtain signature upon such notification. In absence thereof, when as many as 324 employees have exercised the option, the lack of knowledge on the part of petitioner cannot be accepted. In that view of the matter, as the petitioner has not availed the option and opportunity, she cannot be thereafter turnaround and contend that obligation was upon the employer to see to it that she exercised the option form. In absence thereof any such clear obligation, the discharge of duty was not on the employer as it was observe. As transpired from the record, as respondent did not issue personal notices to all employees informing them to submit option form and the respondent has passed a resolution and put the notice on the notice board and accordingly as many as 324 employees have submitted their option form. As said fact has not been disputed by anyone, the petitioner cannot be permitted to turnaround. 9. In the result, the petition fails and is hereby dismissed. Rule discharged. No costs.