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2024 DIGILAW 1825 (GUJ)

Meghjibhai Mohanbhai Sagar v. Manager

2024-10-01

A.S.SUPEHIA, GITA GOPI

body2024
JUDGMENT : (A.S. Supehia, J.) 1. Admit. Mr. Yogen N.Pandya, learned advocate waives service of notice of admission on behalf of respondent no.1 and Ms. E.Shailaja, learned advocate waives service of notice of admission on behalf of respondent no.2. By consent, of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today. 2. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent emanates from the judgment dated 29.02.2024 passed by the learned Single Judge, rejecting the writ petition filed by the appellant seeking regular pension from the respondent no.1 – Amreli Jilla Madhyasth Cooperative Bank. 3. It is the case of the appellant that he is entitled to regular pension after he reached the age of superannuation on 31.03.2004. The appellant was appointed in the year 1966 as a Steno-cum-Junior in the respondent Bank. During the intervening period, on 26.11.1999, he was terminated from services and ultimately, he succeeded before this Court and his termination was set aside by the judgment and order dated 26.12.2019 passed by the Division Bench in Letters Patent Appeal No.1174 of 2015. Thus, it appears that thereafter, he claimed regular pension from the respondent Bank, after the respondent Bank had paid all his retiral dues to the tune of Rs.10,39,663/-, out of which Rs.2,38,285/- was paid towards gratuity along with interest and leave encashment of Rs.36,546/- was also paid. The Bank also paid 30% back wages as directed by this Court, which comes to Rs.2,38,285/-. The respondent Bank has also paid his provident fund contribution from the month of December, 1999 till March, 2004. It appears that by the communication dated 01.02.2020, the appellant requested the Bank to pay pension as per the Employees’ Pension Scheme, 1995. Since, the respondents did not pay the pension, the appellant was constrained to file the captioned writ petition, which was rejected by the learned Single Judge. 4. At the outset, learned advocate Ms. Nasrin N.Shaikh has submitted that the learned Single Judge fell in error in rejecting the writ petition claiming regular pension, as the respondent was contributing provident fund as per the Employees’ Provident Funds Scheme, 1952. In support of her submission, she has placed reliance on the receipt/balance of 1993 and 1994. 5. 4. At the outset, learned advocate Ms. Nasrin N.Shaikh has submitted that the learned Single Judge fell in error in rejecting the writ petition claiming regular pension, as the respondent was contributing provident fund as per the Employees’ Provident Funds Scheme, 1952. In support of her submission, she has placed reliance on the receipt/balance of 1993 and 1994. 5. While placing reliance on the provisions of Paragraph No.6 of the Employees’ Pension Scheme, 1995, it is submitted that the appellant became entitled to the Employees’ Pension Scheme, since the provident fund contribution was deducted by the respondent Bank. Learned advocate Ms. Shaikh has further placed reliance on the communication dated 16.08.1981 filed by the appellant and submitted that the appellant had categorically stated that he shall be considered as a member of the Employees’ Family Pension Scheme, 1971. She has also referred to the provisions of the Employees’ Pension Scheme, 1995, more particularly paragraph Nos.7 and 17, and thus, it is urged that the learned Single Judge fell in error in not appreciating the correct facts as well as the provisions of the Employees’ Pension Scheme, and the respondent may be directed to grant regular pension to the appellant. 6. Per contra, learned advocate Ms. E.Shailaja appearing for the respondent No.2 has submitted that the entire case of the appellant is premised on the Employees’ Family Pension Scheme, 1971, which he opted on 16.08.1981 i.e. after the statutory period of six months, as provided in Paragraph No. 4(2) of 1952 Scheme. She has submitted that as per the Employees’ Pension Scheme, 1995, more particularly paragraph No.26, in case any investment is made by the employee in Family Pension Fund Scheme, the same would get automatically deposited/converted into Employees’ Pension Scheme, 1995 and since the appellant was not the member of the Family Pension Scheme of 1971, as he did not opt within the statutory period, he cannot be conferred pension from the contributions. 7. Learned advocate Ms. Shailaja further submitted that in fact the Employees’ Pension Scheme, 1995 under which the appellant is claiming pension will only apply to those employees who have been appointed or became member on or after 16.11.1995, and who have been the members of the Employees’ Family Pension Scheme, 1971. Thus, it is submitted that the appellant is not entitled to regular pension. 8. Learned advocate Mr. Thus, it is submitted that the appellant is not entitled to regular pension. 8. Learned advocate Mr. Pandya appearing for the respondent No.1 has submitted that all the dues were paid to the appellant and he is not entitled to pension as per the Employees’ Pension Scheme, 1995, as he was not the member of the said Scheme and the contribution was deducted towards the provident fund, which was deposited and ultimately paid to the appellant. It is submitted that the appellant was neither the member of Employees’ Family Pension Scheme, 1971 nor the Employees’ Pension Scheme, 1995, and his contribution towards the provident fund was deducted and ultimately paid to him. It is submitted that the Employees’ Family Pension Scheme, 1971 was specifically framed for the members of the deceased employee so that they may get family pension, and the employee was also required to opt for the same by filing an option within the period of six months from 1st day of March, 1971 however, the appellant for the first time, in 1981, had made an application to the respondent to give the benefit of the Employees’ Family Pension Scheme, 1971 and to include him in such Scheme. Thus, it is urged that the order passed by the learned Single Judge may not be interfered with. 9. We have heard the learned advocates appearing for the respective parties at length. 10. The appellant has filed the captioned writ petition with following prayers: “(A) Your Lordships may be pleased to direct the Respondents’ Authorities to fix the pension of the petitioner, and be pleased to direct the respondents to pay the regular pension to the petitioner within the period which may be stipulated by this Hon’ble Court. (B) Your Lordships may be pleased to direct the Respondent’s Authorities to pay arrears of the pension to the petitioner from the date of his retirement i.e. 31/03/2004 till realization, with interest within the period which may be stipulated by this Honorable Court. (C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to pay provisional pension to the petitioner till the regular pension is fixed and paid to the petitioner. (D) Exemplary Cost of this petition may be awarded. (C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to pay provisional pension to the petitioner till the regular pension is fixed and paid to the petitioner. (D) Exemplary Cost of this petition may be awarded. (E) Grant such other and further relief/s in favor of the petitioners as may be deem just and proper in the facts and circumstances of the case and in the interest of justice.” 11. A bare perusal of the prayer clause exposits that the same is bereft of any provision, under which the appellant is claiming pension. Even the memo of the writ petition does not refer to any provision of law, under which the appellant – original petitioner is claiming pension. Since the matter pertains to pensionary benefit, we had specifically directed the learned advocate appearing for the appellant to point out the provisions of law, under which the appellant is claiming pension. As recorded herein above, the appellant is claiming pension under two Schemes; (1) the Employees’ Pension Scheme, 1995 and (2) the Employees’ Family Pension Scheme, 1971. 12. It is not in dispute that the appellant is paid all the retiral dues and back-wages, as directed by this Court while setting aside the termination order. 13. It is the case of the appellant that on 16.08.1981, the appellant requested the Bank to make him the member of the Employees’ Family Pension Scheme, 1971. The appellant was appointed in the year 1966 under the respondent Bank and was terminated on 26.11.1999, and during the pendency of proceedings before the Industrial Court in which he had assailed his termination order, he reached the age of superannuation on 31.03.2004. Ultimately, as referred herein above, the Co-ordinate Bench by the order dated 26.12.2019, set aside the order of termination in the year 2015. The appellant has been paid all the benefits by the respondent No.1 - Bank including the back wages. 14. The Employees’ Family Pension Scheme, 1971 was promulgated for the benefits of the family members of the employees for the purpose of family pension. Paragraph No.4 of the Employees’ Family Pension Scheme, 1971 stipulates of exercising an option by an employee within a period of six months from 1st Day of March, 1971. Unquestionably, in the present case, the appellant did not file any option claiming benefits within a period of six months. Paragraph No.4 of the Employees’ Family Pension Scheme, 1971 stipulates of exercising an option by an employee within a period of six months from 1st Day of March, 1971. Unquestionably, in the present case, the appellant did not file any option claiming benefits within a period of six months. He continued his contribution towards provident fund till he was terminated. At this stage, we may refer to the relevant provisions of the Employees’ Pension Scheme, 1995, since the same are interrelated with the Employees’ Family Pension Scheme, 1971. Paragraph No.6 of the Employees’ Pension Scheme, 1995 reads as under: “6. Membership of the Employees' Pension Scheme - Subject to subparagraph (3) of paragraph 1, the Scheme shall apply to every employee – (a) who on or after the 16th November, 1995, becomes a member of the Employees' Provident Fund Scheme, 1952, or of the Provident Funds of the factories and other establishments exempted by the appropriate Government under section 17 of the Act, or in whose case exemption has been granted under paragraph 27 or 27-A of the Employees' Provident Fund Scheme, 1952, from the date of such membership; (b) who has been a member of the ceased Employees' Family Pension Scheme, 1971 before the commencement of this Scheme from 16th November, 1995; (c) Who ceased to be a member of the Employees' Family Pension Scheme, 1971 between 1st April, 1993 and 15th November, 1995 and opts to exercise his option under Paragraph 7; (d) who has been a member of the Employees' Provident fund or of Provident Funds of factories and other establishments exempted by the appropriate Government under section 17 of the Act or in whose case exemption has been granted under Paragraph 27 or 27A of the Employees' Provident Fund Scheme, 1952, on 15th November, 1995 but not being a member of the ceased Employees' Family Pension Scheme, 1971 opts to exercise his option under paragraph 7].” 15. The provisions of sub-para (a) to paragraph No.6 refers that the said Scheme shall only apply to those employees, who on or after 16.11.1995, become members of the Employees’ Provident Fund Scheme, 1952, and sub-para (b) refers that an employee, who has been member of the ceased Employees’ Family Pension Scheme, 1971 before the commencement of this Scheme from 16.11.1995. Indubitably, the appellant is not a member of any of the Scheme. Indubitably, the appellant is not a member of any of the Scheme. At this stage, we may refer to the provisions of Paragraph No.26, which reads as under: “26. Investment of the Employees' Pension Fund - (1) All moneys accruing to Employees' Pension Fund Account except the contributions of the Central Government shall be invested in accordance with the provisions of paragraph 52 of the Employees' Provident Funds Scheme, 1952. (2) Net assets of the Family Pension Fund as on the 16.11.95 shall merge in the Pension Fund and remain invested in the Public Account of the Government of India. The future Central Government's contribution accruing to the Pension fund from 17th November, 1995 onwards shall also be invested in the Public Account of the Government of India.” 16. Paragraph No.26 of the Employees’ Pension Scheme, 1995 directs that all the money accruing to the Employees' Pension Fund Account, and sub-para (2) refers that net assets of Family Pension Fund as on 16.11.1995 shall merge in the Pension Fund and remain invested in the Public Account of the Government of India. Thus, the funds, which were collected under the family pension fund, as envisaged in the Employees’ Family Pension Scheme, 1971 stood merged with the Employees’ Pension Scheme, 1995. In the present case, it is not in dispute and is an established fact that the appellant was not a member of the family pension fund, as envisaged under the Employees’ Family Pension Scheme, 1971. Hence, there is no question of treating him as the member of the Employees’ Pension Scheme, 1995. 17. We may, at this stage, refer to paragraph No.17 of the Employees’ Pension Scheme, 1995, which reads as under: “17. Payments on exercise of option - (1) Beneficiaries of the deceased members of Employees' Family Pension Scheme, referred to in sub-para (1) of paragraph 7, shall receive higher of the benefits available under the Employees' Family Pension Scheme, 1971 and under this Scheme. (2) Members referred to in sub-paragraph (2) of paragraph 7 shall have the option to join the Scheme by returning the amount of withdrawal benefit received, if any, together with interest at the rate of 8.5% per annum from the date of payment of such withdrawal benefit and date of exercise of the option, to receive monthly pension as per the provisions of this Scheme. (3) Members referred to in sub-paragraph (3) of paragraph 7 shall be deemed to have joined the ceased Employees' Family Pension Scheme, 1971, with effect from 1.3.1971 on remittance of past period contribution with interest thereon. 18. Sub-para (2) of Paragraph No.17 refers that the members referred to in sub-para (2) of paragraph No.7 shall have the option to join the Scheme by returning the amount of withdrawal benefit received if any, together with interest at the rate of 8.5% per annum from the date of payment of such withdrawal benefit and date of exercise of the option, to receive monthly pension as per the provisions of this Scheme. 19. Sub-para (2) of paragraph No.7 as referred in paragraph No.17 reads as under: (2) Members referred to in sub-paragraph (c) of paragraph 6 who are alive shall have the option to join the Scheme as per the provisions of paragraph 17 from the date of exit from the employment. 20. Sub-para (2) of Paragraph No.7 refers to the members referred in sub-para (c) of paragraph No.6, who are alive shall have the option to join the Scheme as per the provisions of paragraph No.17 from the date of exit from the employment. Again, this provision falls back to the provision of sub-para (c) of paragraph No.6, which refers that, who ceased to be a member of the Employees' Family Pension Scheme, 1971 and opts to exercise his option under Paragraph No.7. Unquestionably, the appellant has not exercised any options as envisaged in the Employees’ Family Pension Scheme, 1971, as mentioned herein above. Thus, the statute does not in any manner help the appellant in claiming regular pension from the respondent Bank. 21. Thus, we do not find any reason to interfere with the judgment passed by the learned Single Judge rejecting the writ petition. Hence, the present appeal stands dismissed.