1. This appeal under section 100 of the Code of Civil Procedure is at the instance of the original defendants against whom the respondent-original plaintiff had filed Regular Civil Suit No. 189 of 1989 for declaration and mandatory injunction.
2. The case of the plaintiff is that the plaintiff was originally employee of the Saurashtra State and in the year 1952-53, he was placed in the Saurashtra Electricity Board which came to be merged with the Bombay Electricity Board and on establishment of the Gujarat State, Bombay Electricity Board was dissolved and the Gujarat Electricity Board came into existence, that as per the Rules of the defendant No.1 Board, option forms were called for from the employees of the Saurashtra Electricity Board. The plaintiff therefore filled in option form for C.P.F. Scheme and the plaintiff retired on 31.12.1986. The plaintiff was, though entitled to pension scheme but because of the negligence on the part of the officers of the defendant No.1 Board of getting option form filled in from the plaintiff, was deprived of the benefits of pension scheme. The plaintiff was thus treated in the C.P.F. Scheme and was paid gratuity and provident fund. The plaintiff, therefore, requested to permit the plaintiff to avail of the pension scheme as the plaintiff was ready and willing to repay the entire amount received by him under the C.P.F. Scheme but the defendants did not take any decision. It is further averred by the plaintiff that there are about 100 such employees like plaintiff who were treated discriminatorily by the defendants and only two persons named Mr. Mankodi and Mr. Sundarraj serving in the office of defendant No.1 were given the benefits of pension scheme though they had opted for C.P.F. Scheme earlier. Thus, the plaintiff was meted out with discriminatory treatment in the matter of grant of pension benefits. The plaintiff therefore, filed the suit with a prayer to declare that the plaintiff is entitled to the benefit of pension scheme and for mandatory injunction ordering the defendants to fix and pay the monthly pension to the plaintiff from the date of his retirement from service.
3. The suit was resisted by the defendants by filing written statement at Exh. 11 stating that the suit of the plaintiff was barred by the principles of estoppel and also barred by the provisions of the Limitation Act. It is further stated that the after the plaintiff was absorbed in the Gujarat Electricity Board, the defendant No.1 Board issued Circular dated 31.1.1970 for giving option to all the Ex-Saurashtra Government Employees who were absorbed in the defendant No.1 Board to join the C.P.F. Scheme of the Board and if they so desire, such joining in the C.P.F. would be with retrospective effect from 1.4.1957. The defendants have further stated that as per the above said circular, option once exercised was final and all the benefits as regards commuted value of pension earlier accrued with other funds at the credit of such employee was to be transferred to the C.P. F. Account of such employee. It is further stated that the plaintiff exercised his option on 18.8.1970 giving consent in the prescribed form to join the C.P.F. Scheme and requested that his commuted value of pension received from the Government be deposited in his CPF Account and he be enrolled as member of CPF Scheme with effect from 1.4.1957. It is also stated that on the basis of such option exercised by the plaintiff, commuted value of the pension of the plaintiff was credited to his CPF Account and since the plaintiff retired on 31.12.1986, he was paid all the amounts to his credit in the CPF Account on 18.3.1987. The defendants have further stated that it is not true that the defendants have permitted several other employees to switch over to pension scheme and the two persons referred in the plaint stated to have got benefit of pension scheme were not similarly situated to the plaintiff. Scheme under the Circular does not provide for switching over to the pension scheme from the CPF Scheme and there is no relaxation provided for the employees who have already opted for CPF Scheme. The plaintiff having consciously exercised option to be governed by the CPF Scheme cannot now ask for benefit under the Pension Scheme especially when the plaintiff has received entire amount available to him under the CPF Scheme including his own contribution as well as the contribution of defendant No.1 employer.
4. The learned trial Judge, on appreciation of the evidence, though found that the plaintiff had exercised option to be governed by the CPF Scheme, came to the conclusion that since two other employees were permitted to be switched over to pension scheme by the defendants, the plaintiff was meted discriminatory treatment by not permitting the plaintiff to switch over to Pension Scheme. The learned trial Judge also came to the conclusion that the plaintiff was already governed by the Rules of Pension of the Saurashtra State Electricity Board and, therefore, the plaintiff was entitled to the benefit of pension scheme especially when two other persons were already permitted to switch over to the Pension Scheme by the defendants. The learned trial Judge thus allowed the suit of the plaintiff by declaring that the plaintiff is retired employee of the defendants under the pension scheme and is thus entitled to get the benefit of pension as per the rules of the defendants. The learned Trial Judge further ordered to fix the amount of pension of the plaintiff from the date of his retirement and to pay the said amount accordingly under the Rules.
5. The defendants unsuccessfully carried the matter further by filing Civil Regular Appeal No. 1 of 1995 in the in the First Appellate Court. The learned appellate Judge came to the conclusion that the plaintiff was Ex-Saurashtra State Employee and he was confirmed as State employee in the initial stage and he opted for revised rules of pension which was his initial choice. The learned appellate Judge further observed that there is no evidence on record to show that the plaintiff waived his right. The learned Judge further came to the conclusion that the vested right of the plaintiff to the pension scheme would prevail upon his consent to join the CPF Scheme by exercising the option. The learned appellate Judge further recorded that the plaintiff having completed long service, beneficial legislation should be considered in his favour and the right of the plaintiff should not be denied and, therefore, findings recorded by the learned trial Judge on the point of discrimination cannot be considered to be illegal or against the evidence on record. On such conclusion reached by the learned appellate Judge, the learned appellate Judge dismissed the appeal of the plaintiff by the judgment and decree dated 16.6.1995. It is this judgment and decree which is under challenge in this appeal.
6. This appeal was admitted by order dated 16th September, 1995 on the following substantial questions of law:
“(1) Whether on the facts and in circumstances of the case the Courts below have erred in law in upholding the plaintiff’s claim in suit filed 1 1/2 year after retirement of being entitled to change over to pension scheme after holding that plaintiff had voluntarily opted for CPF and gratuity scheme and availed benefit and recovered sums thereunder upon retirement?
(2) Whether on the facts and in circumstances of the case the Courts below have erred in law in not dismissing the plaintiff’s claim as barred by principles of estoppel and limitation?
(3) Whether on the facts and circumstances of the case the courts below have erred in law in accepting plaintiff’s claim and contention based upon grounds of discrimination?
(4) Whether on facts and circumstances of the case the Courts below has erred in law in not holding that the plaintiff has failed to establish right to relief claimed in the suit?
7. I have heard the learned advocates for the parties. Learned Advocate Ms. Maya Desai for learned advocate Mr. M.D.Pandya for the appellants submitted that after the plaintiff was absorbed in the defendant No.1 Board, by circular dated 15.12.1970 all the employees were given option either to be governed by the CPF Scheme or to continue to be governed by the Pension Scheme. She submitted that the plaintiff having been absorbed by the defendant No.1 Board, he became employee of defendant NO.1 Board and since he exercised the option under the scheme as per the circular of the defendant No.1 Board, his option had become final to be governed by the CPF Scheme and there is no provision in the Circular to switch over to pension scheme. She pointed out that the scheme specifically provides that the option once exercised shall become final and, therefore, no employee is entitled to resile from such option. She pointed out that the plaintiff had after exercising the option continued to be governed by the CPF Scheme till he retired. She submitted that all the amounts which were in the credit of the plaintiff before he exercised the option to be governed by the CPF Scheme were deposited to his CPF Account as per his own request and contribution from the employer in his case was also credited in his CPF Account. She pointed out that even at the time of retirement, the plaintiff has not objected to receive all the benefits under the CPF Scheme and the plaintiff was paid all benefits under the CPF Scheme at the time of his retirement. She pointed out that after long period, the plaintiff filed the suit to get himself declared to be entitled for pension scheme mainly on the ground that two other persons were permitted to switch over to pension scheme and he was meted out discriminatory treatment by not permitting him to get benefit of pension scheme. She submitted that as the defendants have explained in the written statement as to how and in what circumstances other two persons were permitted to switch over to pension scheme. She further submitted that the scheme does not provide for any relaxation or any kind of liberal approach on the part of the defendants to permit any employee to switch over to pension scheme and, therefore, any employee once have opted for CPF Scheme shall stand governed by the CPF Scheme and cannot be permitted to switch over to pension scheme. She further pointed out that if two employees are given the benefit of pension scheme contrary to the circular, same could not be taken as the basis by the plaintiff so as to allege any discriminatory treatment by the Board. She pointed out that the wrong action of the authority cannot be made the basis to allege discriminatory treatment in the matter of grant of any kind of benefits. She thus urged to allow this appeal on the basis of the substantial questions of law formulated by this Court.
8. As against the above arguments advanced by the learned advocate Ms. Maya Desai for the appellant, learned advocate Mr. Vishal Mehta appearing for learned advocate Mr. A.J. Shastri for the respondent original plaintiff submitted that the Courts below have recorded finding of fact that the case of the plaintiff was at par with the case of those two persons who were permitted to switch over to pension scheme and, therefore, there was discriminatory treatment meted out to the plaintiff by not permitting him to switch over to pension scheme. On such basis, if the Courts below have granted declaration in favour of the plaintiff, this court while exercising powers under sec. 100 of the Code of Civil Procedure may not interfere with the judgment and decree passed by the Courts below. Learned advocate for the respondent further submitted that the plaintiff was originally employee of the Saurashtra State and was already governed by the Pension Scheme but under the negligence of the officers of the Board, if the plaintiff was made to exercise the option to be governed by the CPF Scheme, that would never take away rights of the plaintiff to get the pension under the pension scheme. He submitted that the Courts below having examined this aspect of the matter and having held that under the liberalized pension scheme, if the plaintiff is entitled to get the benefit of pension, his right to get the pension cannot be defeated just because the plaintiff had exercised option to be governed by the CPF Scheme. He thus submitted that there was clear discriminatory treatment meted against the plaintiff and therefore, this court may not interfere with the judgment and decree passed by the Courts below simply because the circular of the CPF Scheme does not provide to switch over to pension scheme.
9. Mr. Mehta pointed out that even if the circular does not provide for any such relaxation, the higher authority of the defendant No.1 board has power to permit an employee to switch over to pension scheme and if such authority had exercised its power for two of the employees, there is no reason to deny such benefit to the plaintiff. He submitted that if the benefit of liberalized pension is given to some of the employees of this very board, the plaintiff can claim such benefit because the plaintiff was the employee of the former State of Saurashtra who was already governed by the pension scheme. Learned advocate for the respondent has relied on the decision of this Court in the matter of Gujarat State Government College Lab. Staff Association and Others versus State of Gujarat and others, 2011 (3) GLH 376 to point out that the employee who is meted out with discriminatory treatment can be given benefit at par with the other employees who have been favoured as such discriminatory treatment would be hit by the provisions of Article 14 of the Constitution of India. He pointed out that in the said case, it was found that the appellant was denied benefit of equal pay for equal work and this court had struck down illegal action on the part of the respondent State Authority in not giving equal treatment to the appellant and the appellant of that case was held entitled to get benefit of equal pay for equal work at par with other employees. Relying on this decision, learned advocate for the respondent- original plaintiff submitted that the courts below having found that the other two employees were given benefit of pension scheme and the plaintiff being similarly situated with those two employees was wrongly denied such benefit and such was the discriminatory treatment meted to the plaintiff at the hands of the defendants, this court may not interfere with the judgment and decree passed by the Courts below.
10. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with record and proceedings, it appears that there is no dispute about the fact that the plaintiff was absorbed by defendant No.1 Board. After the plaintiff was absorbed by defendant No.1 Board, the plaintiff became employee of defendant No.1 Board and ceased to be an employee of the ex- Saurashtra Electricity Board. It is required to be noted that after the plaintiff was absorbed by defendant No.1 Board, circular dated 31.7.1970 was introduced, where-under, employees of the Ex- Saurashtra Board were given option to join CPF Scheme if they so desired. It is specifically provided in the said Circular at Exh.23 that the option once exercised, shall become final.
11. Period for exercising option was extended by further circular dated 5.10.1970. However, the plaintiff had already exercised his option on 18.8.1970, which is found at Exh.22, which reads as under:-
“I, MOHMED NURUDIN MALICK (Name in block letters) working as SR.CLERK Circle Office at Porbandar who is governed by the Pension Rules viz. Liberalized Pension Rules of the Ex. State of Saurashtra as they stood on 31.3.1957 have received GEB Circular No. EG/ITI/R/8/11527 dated 31.7.1970 and I hereby give my consent to join the CP Fund Scheme of the Board and request that the commuted value of pension received from Government in my case may be credited as a deposit to my CPF Account under this Board and I may be enrolled as subscriber to this Board’s CP Fund in accordance with its Regulations with effect from 1.4.1957.”
12. It further appears that after 1970 till 1986, the plaintiff continued to be governed by CPF Scheme and as per his own consent, all amounts to his credit in the earlier pension scheme stood transferred to CPF account. Not only this but his contribution as also contribution of the Board-employer also stood transferred to his CPF account. The plaintiff for 16 years did not think it proper to take any action for the purpose of switching over to the pension scheme if at all the plaintiff wanted to switch over to pension scheme. Though the circular specifically provides that option once exercised becomes final, still even if the plaintiff wanted to switch over to pension scheme, some action on the part of the plaintiff was expected, which the plaintiff did not think it proper to take for long 16 years. It is required to be noted that the plaintiff on his retirement readily accepted all the amounts available under the CPF Scheme. After the plaintiff took all such benefits on his retirement in the year 1986, he filed the suit in the year 1989. It appears that the plaintiff wanted to get chance of making claim in the Civil Court to switch over to the pension scheme on the ground that two other persons were permitted to switch over to pension scheme. The Courts below have considered the allegations of the alleged discriminatory treatment to be a good ground to allow the suit of the plaintiff though the defendants have stated in the written statement and have tried to explain that those two employees were differently situated. It is stated that one was not governed by CPF Scheme at all and another one was continued in the pension scheme of his earlier employer and in considering such different fact situation of those two employees, they were permitted to avail benefit of the pension scheme. Be that as it may, even if those two employees were wrongly given benefit of the pension scheme, the plaintiff could not have based his claim on the ground of discrimination for wrong action of the officer or higher authority of the defendant No.1. Circular under which options were invited to be governed by CPF Scheme, does not provide that an employee after exercising option for CPF Scheme can, at later point of time, switch over to pension scheme. In fact, the circular negates the right of an employee to switch over to pension scheme once having exercised option for CPF Scheme. Therefore, once an employee exercises option under the circular to be governed by CPF Scheme, such employee is not entitled to switch over to the pension scheme for any reason or circumstance. Even if those two employees were wrongly permitted by the officers or any higher authority of the defendants, such could never be taken as a discriminatory treatment against the plaintiff. Had there been a provision in circular for exercise of the discretion by the officer to permit any of the employees to switch over to pension scheme after having exercised option for CPF Scheme and if such officers or authority permitted other employees and did not permit the plaintiff, though the plaintiff was found to be similarly situated, such could be said to be a discriminatory treatment to the plaintiff because the action of the officers of the defendant Board would be then the legal action under the circular itself permitting some of the employees to switch over to pension scheme. And action of not permitting the plaintiff under such circumstances to switch over to pension scheme could be examined against touch stone of Article 14 of the Constitution against legal action of the officers of the defendant Board in permitting other employees and not permitting the plaintiff to switch over to pension scheme. But, if the officers of the defendants or any higher authority are not placed with any discretionary power or if there is no provision in the circular itself, making the employees entitled to switch over to pension scheme, in such circumstances, if the officer or any higher authority of the defendant Board illegally permit any employee to switch over to the pension scheme, such could never be taken as discriminatory treatment meted out to the plaintiff. At this stage, reference to the decision of the Hon’ble Supreme Court in the case of Arikaravula Sanyasi Raju versus Branch Manager, State Bank of India, Visakhapatanam (AP) and others, reported in (1997)1 SCC 256 is required to be made. The Hon’ble Supreme Court in the said decision has held and observed in para 5 as under:-
“5. It was contended that under Clause 22(i)(b), because of the removal from service he was incapacitated for further active service and he is entitled to the pension. The High Court rightly had not accepted the said contention. It is seen that on medical grounds or any of the enumerated grounds if he had sought retirement on that basis and allowed to retire from service, he would be entitled to pension on completion of 20 years of pensionable service. Removal from service for misconduct cannot be considered to be incapacitation for rendering the service and Clause 22(i)(b) does not apply to pension. It is then seriously contended by Shri Sampath, learned counsel for the appellant, that since he has completed 20 years of pensionable service, irrespective of removal, he is entitled to the pension under Clause (c) thereof. In support thereof, he sought to place reliance on a clarification issued by the Bank in their letter dated February 11, 1985 stating that removal from service entitled him to pension as is available to the other retired persons. He also further contended that one Mr. C.C.M. Nambiar, who was similarly situated and removed from service for misconduct, was given the benefit on the said advice. Therefore, the petitioner is entitled to the same benefit. We cannot accept the said contention as correct. Clause 22(i)(c) envisages only that after completing 20 years of pensionable service, if an incumbent retired at his request in writing and was permitted to retire, he would be entitled to pension. In other words, for voluntary retirement, on completion of 20 years of pensionable service, clause (c) of Rule 22(1) gets attracted. It does not apply to officer who was removed from service for misconduct. Under these circumstances, the High Court has not committed any error of law warranting interference. Merely because, on a wrong advice, another employee was given pension after removal from service, the same cannot be made a ground under Article 14 to perpetuate the same mistake. So, Article 14 does not apply and no discrimination arises.”
13. From the record of the case, I find that the plaintiff had consciously exercised his option to be governed by CPF Scheme and availed benefits therefrom. Therefore, in my view, the Courts below have materially erred in upholding the plaintiff’s claim that he is entitled to switch over to pension scheme. It is also required to be noted that the plaintiff and other employees were made aware about the CPF Scheme and though after absorption, employee of Ex-Saurashtra State not exercising option for CPF Scheme could continue to be governed by pension Scheme, still the plaintiff thought it fit to exercise option to be governed by CPF Scheme. Such conscious act on the part of the plaintiff, therefore, would definitely estop the plaintiff from now claiming benefits under the pension scheme, especially when the plaintiff willingly continued to be governed by the CPF Scheme for a long period of 16 years and received the benefits under the CPF Scheme on his retirement. Therefore, by virtue of the principles of Estoppel also, the plaintiff was not entitled to any relief in his suit and the Courts below have thus materially erred in granting the benefit of pension to the plaintiff.
14. Thus, in my view, the plaintiff has failed to establish that he became entitled to switch over to pension scheme. He is estopped from claiming such benefit having exercised option for the benefits under the CPF Scheme. The Courts below have overstepped their jurisdiction in accepting and allowing the claim of the plaintiff for the benefits under the pension scheme. The substantial questions of law raised by this Court are thus answered accordingly. The appeal is therefore required to be allowed. The same is allowed. Judgment and decree passed by the Courts below are quashed and set aside.
(C.L.SONI, J.)
anvyas