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Gujarat High Court · body

2019 DIGILAW 976 (GUJ)

Kiritbhai Hemubhai Parmar v. State of Gujarat

2019-10-18

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. Since a common issue is involved in the present writ petitions, the same are decided by the common judgment. 1. Rule. Learned AGP waives service of rule for the respondent no. 1-State and learned advocate Mr. Hari Patel waives service of rule for the respondent no. 5-Nagarpalika. 2. In the present writ petitions, the petitioners are praying for a direction to the respondent authorities to pay them pensionary benefits. 3. At the outset, learned advocate Mr. Bipin Mehta appearing for the petitioners has submitted that the issue involved in the present writ petitions is squarely covered by the judgment of the Division Bench in the case of Chief Officer vs. Mahamd Irshad Husenbhai Baloch & Ors., 2011 (1) GDC 569 and the recent decision of the Supreme Court in the case of Una Nagar Palika vs. Kaliben Balubhai Makwana & Anr., 2018 (11) SCALE 364. He has submitted that the petitioners are similarly situated persons and they were working initially in the Dhrol Nagar panchayat, which was converted into Nagarpalika/Municipality in the year 1994 due to increase in population. He has also submitted that the petitioners were absorbed in the municipality considering them as permanent staff. Thus, he has submitted that despite the aforesaid settled proposition of law, the respondents are not paying the pension to the petitioners. 4. Learned advocate Mr. Hari Patel appearing for the respondent no. 5-Nagarpalika has submitted that in fact the State Government has to pay the pension to the petitioners and accordingly, they have already prepared the pension papers, which are subsequently forwarded to the respondent-State so that appropriate orders can be passed. 5. Learned AGP Mr. Swapneshwar Goutam appearing for respondent nos. 1 and 2 has submitted that if the respondent-Nagarpalika forwards the pension papers of the petitioners, appropriate decision shall be taken for grant of pension in light of the aforesaid judgments of this court as well as the Supreme Court. 6. I have heard the learned advocates appearing for the respective parties. 7. It is not in dispute that the petitioners, who were initially appointed as daily wagers in the Water Works Department of the then Dhrol Nagar Panchayat are subsequently absorbed in the Municipality on its conversion. 6. I have heard the learned advocates appearing for the respective parties. 7. It is not in dispute that the petitioners, who were initially appointed as daily wagers in the Water Works Department of the then Dhrol Nagar Panchayat are subsequently absorbed in the Municipality on its conversion. The petitioners raised a reference before Industrial Tribunal, Rajkot bearing Reference (ITR) No. 726 of 1984 (Old Ahmedabad No. 469 of 1984), wherein vide award dated 14.10.1987 the petitioners were treated as permanent with effect from 01.04.1986. 8. The aforesaid award had become final and ultimately, the petitioners were treated as permanent employee of Dhrol Nagarpalika. Thereafter, the petitioners were also granted the benefit of 4th Pay Commission and their case was also recommended for 5th Pay Commission. 9. The respondent-Nagarpalika has made GPF Scheme, applicable to its employees and accordingly, such deduction is also made. All the petitioners have retired, but are not being paid pension on the ground that initially they were the employees of the Panchayat. 10. The Division Bench in the case of Mahamd Irshad Husenbhai Baloch & Ors. (supra) while dealing with the identical issue has held thus: "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 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. 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 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. 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. 11. Yet in another case, Una Nagar Palika (supra), the Division Bench in the judgment dated 06.10.2015 passed in Letters Patent Appeal No. 1067 of 2015 and cognate matters, after considering the aforesaid judgment of the Division Bench in the case of Mahamd Irshad Husenbhai Baloch & Ors. (supra), has held thus: "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. 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 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." 12. The Supreme Court on an identical issue in the case of Kaliben Balubhai Makwana & Anr. (supra), while examining the employees of Una Nagarpalika, has confirmed the view taken by the Division Bench in the case of Mahamd Irshad Husenbhai Baloch & Ors. (supra). The Supreme Court has held thus: "11. The Division Bench held that the employees are eligible and thus entitled to claim the Pension/Pensionary benefits provided they render qualifying service while in the employment of the Municipality in terms of the Rules. The concerned Municipality felt aggrieved by the said order and filed special leave to appeal (SLP Nos. 15691 to 15700 of 2003) in this Court. It was, however, dismissed by this Court by order dated 16.09.2013. 12. The order was accordingly given effect to by sanctioning the pension to those employees, who were parties in the said litigation. 13. The concerned Municipality felt aggrieved by the said order and filed special leave to appeal (SLP Nos. 15691 to 15700 of 2003) in this Court. It was, however, dismissed by this Court by order dated 16.09.2013. 12. The order was accordingly given effect to by sanctioning the pension to those employees, who were parties in the said litigation. 13. It is with this background, when the petitions out of which these appeals arise came up for hearing, the Single Judge (writ court) essentially placed reliance on the decision of Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others (supra) and allowed the petitions finding no material distinction in the case at hand and in this case of Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others (supra). 21. It was contended that the employees, who, fall in former category of case, were held entitled for the grant of pension but not those employees, who fall in the latter category of the case. It was pointed out that since the employees in the case of Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others (supra) fell in the former category of the case and, therefore, they were held entitled to claim the benefit of pension whereas the respondents of this case fall in the latter category of cases, the benefit of decision rendered in the case of Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others (supra) could not be granted to the respondents because they were appointed directly by the appellant (Municipality). 22. The Division Bench while repelling the aforementioned submission took note of the following four undisputed facts arising in this case: "1.The original petitioners-respondent 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. 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." 24. In our view, the case at hand is covered by the earlier decision rendered in the case of Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others (supra) which stands upheld by this Court by order dated 16.09.2013. We are also of the view that the aforementioned distinction pointed out by the appellant for coming out of the clutches of the decision of Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others (supra) was also rightly found untenable by the High Court by assigning the proper reasons." 13. Thus, the issue, which is involved in the present writ petition has been laid quietus by the aforesaid judgments. 14. In this view of the matter, since the service of the petitioners were already made regular vide award dated 14.10.1987 with effect from 01.04.1986, the respondent-Nagarpalika is directed to prepare the pension papers within a period of four weeks and send the same to the State authority and the State authority shall decide the same within a period of eight weeks and the amount of pension, after due verification, shall be paid within a period of six weeks to the petitioners. The aforesaid exercise shall be undertaken from the date of receipt of the writ of this order. 15. The writ petitions succeed. Rule is made absolute. Direct service is permitted. 16. Registry is directed to place a copy of the judgment in the connected matters.