UNA NAGAR PALIKA versus KALIBEN BALUBHAI MAKWANA & ANR. on 20 September 2018

752

[2018] 11 S.C.R. 752

SUPREME COURT REPORTS

[2018] 11 S.C.R.

A

UNA NAGAR PALIKA

v.

KALIBEN BALUBHAI MAKWANA & ANR.

(Civil Appeal No. 5529 of 2016)

BSEPTEMBER 20, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Service Law – Pension/Pensionary Benefits – Claim for –Denial of – When not proper – Respondents-employees of appellant-Municipality denied pension/pensionary benefits – Challenged byCrespondents – Allowed by High Court – Held: High Court was rightin holding that the question involved in the present appeals iscovered by the earlier decision of the High Court rendered inMohamed Irshad Husenbhai case, which was upheld by SupremeCourt and has thus attained finality – Plea of appellant that there isDdistinction between the two groups of employees, namely, one comingfrom the Panchayat and then becoming the Municipal employeesand the other directly becoming the Municipal employees and thatin Mohamed Irshad Husenbhai case, the employees who fell in theformer category were held entitled for the grant of pension whichis not the situation in the present case – Such plea is of noEsignificance because the appellant made the respondents membersof the GPF contributions and deducted regular contribution fromtheir salary till the date of their retirement – Thus, the distinctionpointed out by the appellant for coming out of the clutches of thedecision of Mohamed Irshad Husenbhai case was rightly foundFuntenable by the High Court – No case to interfere in the impugnedorder.

Dismissing the appeals, the Court

HELD: 1.1 The High Court was right in holding that thequestion involved in these appeals is covered by the earlierGdecision of the Gujarat High Court rendered in Mohamed IrshadHusenbhai Baloch case, which was upheld by this Court by orderdated 16.09.2013 and thus attained finality. [Para 19] [756-E]

1.2 Distinction between the two groups of employees,namely, one coming from the Panchayat and then becoming theH

Municipal employees and the other directly becoming theMunicipal employees was held to be of no significance becausethe appellant made the respondents as the members of the GPFcontributions and went on to deduct regular contribution fromtheir salary till the date of their retirement. The aforementioneddistinction pointed out by the appellant for coming out of theclutches of the decision of Mohamed Irshad Husenbhai Balochcase was also rightly found untenable by the High Court byassigning the proper reasons. Keeping in view the undisputedfacts arising in the case coupled with the decision rendered inthe Mohamed Irshad Husenbhai Baloch, which has attained finality,and was then given effect to in relation to concerned Municipalemployees holding them eligible and entitled to claim the pensionand the pensionery benefits, no good ground is found to take anyother view than the one taken by the writ court and the DivisionBench in the impugned order. [Paras 23, 24, 25] [757-G-H; 758-A-D]

1.3 The appellant is directed to finalize the pension casesof the respondents and release the amount of pension after properverification within four months from the date of this order. [Para30] [758-G]

Chief Officers v. Mohmad Irshad Husenbhai Baloch &Ors. (2011) (1) GCD 569 (Guj) (D.B.) – approved.

Case Law Reference

(2011) (1) GCD 569 (Guj) (D.B.)approvedPara 1

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5529of 2016

From the Judgment and Order dated 06.10.2015 of the HighCourt of Gujarat at Ahmedabad in Letters Patent Appeal No. 1122 of2015 in Special Civil Application No. 3699 of 2014.

WITH

Civil Appeal Nos. 5530, 5531, 5532, 6490 of 2016.

S. P. Hasurkar, Anshul Narayan, Bhargav Hasurkar, PremPrakash, Ms. Anushree Prashit Kapadia, Vinod Tiwari, Ms. Promila,Advs. for the appearing parties.

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AThe Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. These appeals are directedagainst the common final judgment and order dated 06.10.2015 passedby the High Court of Gujarat at Ahmedabad in Letters Patent AppealNo.1122 of 2015 in Special Civil Application No.3699 of 2014 with LettersBPatent Appeal No.1065 of 2015 in Special Civil Application No.30402 of2007 with Letters Patent Appeal No.1066 of 2015 in Special CivilApplication No.4757 of 2012 with Letters Patent Appeal No.1067 of2015 in Special Civil Application No.6137 of 2012 and Letters PatentAppeal No.1124 of 2015 in Special Civil Application No.11100 of 2014whereby the Division Bench of the High Court disposed of the LettersCPatent Appeals filed by the appellant herein on the basis of the judgmentrendered by the Division Bench of the High Court in the matter of ChiefOfficers vs. Mohmad Irshad Husenbhai Baloch & Ors. (2011 (1)GCD 569 (Guj) (D.B.).

2. In order to appreciate the issues involved in these appeals, fewDrelevant facts need mention infra.

3. The appellant herein was the respondent whereas the fivecontesting respondents herein were the petitioners in the special civilapplications(petitions) filed before the High Court.

E4. The appellant is the “Municipality” also called Nagar Palika forthe place called “Una” in the State of Gujarat. The five contestingrespondents, out of them four have expired and now represented bytheir legal representatives, were the employees of the appellant-Municipality. One of the respondents was appointed in the year 1990whereas others were appointed in 1996 and 1998.F

E

5. On their attaining the age of superannuation in the appellant’sservices on different dates, all the five respondents requested the appellantto settle their claims for payment of pension and pensionery benefits.

6. The appellant declined to grant any pensionery benefits (pension)to all the five respondents stating that they were neither eligible and norGentitled to claim the pension or/and any pensionery benefits from theappellant.

7. This gave rise to filing of the special civil applications (petitions)by the respondents against the appellant in the High Court of Gujarat H

being S.C.A. No. 3699 of 2014 and four others. The appellant asrespondent contested the petitions.

8. The Single Judge of the High Court by passing separate orderson different dates allowed the petitions and held that the petitioners(respondents herein) are eligible and thus entitled to claim pension andpensionery benefits from the appellant being their employees andaccordingly issued a writ of mandamus against the appellant-Municipalitydirecting payment of pension to all the petitioners therein (respondentsherein) from the date of their retirement.

9. The appellant (Municipality) felt aggrieved and filed intra courtappeals before the Division Bench in the High Court. By commonimpugned order, the Division Bench dismissed the appeals giving rise tofiling of these appeals by way of special leave in this Court by the UnaNagar Palika(Municipality).

10. It is apposite to mention that the very question, namely, whetheran employee of a Municipality is entitled to claim pension/pensionerybenefits from his employer-Municipality was the subject matter of onelitigation in Gujarat High Court. The leading judgment was passed by theDivision Bench in LPA No. 214/2011 entitled Chief Officer vs.Mohamed Irshad Husenbhai Baloch and Others (supra) along withother connected matters on 31.01.2013.

11. The Division Bench held that the employees are eligible andthus entitled to claim the Pension/Pensionery benefits provided they renderqualifying service while in the employment of the Municipality in termsof the Rules. The concerned Municipality felt aggrieved by the saidorder and filed special leave to appeal (SLP Nos.15691 to 15700 of2003) in this Court. It was, however, dismissed by this Court by orderdated 16.09.2013.

12. The order was accordingly given effect to by sanctioning thepension to those employees, who were parties in the said litigation.

13. It is with this background, when the petitions out of whichthese appeals arise came up for hearing, the Single Judge (writ court)essentially placed reliance on the decision of Chief Officer vs. MohamedIrshad Husenbhai Baloch and Others (supra) and allowed the petitionsfinding no material distinction in the case at hand and in the case of A

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AChief Officer vs. Mohamed Irshad Husenbhai Baloch and Others(supra).

14. When the matter came up in appeals, the Division Bench alsoplaced reliance on the view taken in Chief Officer vs. Mohamed IrshadHusenbhai Baloch and Others (supra) and dismissed the appeals.

B

15. The writ court and the Division Bench were of the view thatthe issue in question has attained finality by the decision rendered in thecase of Chief Officer vs. Mohamed Irshad Husenbhai Baloch andOthers (supra) and affirmed by the order of this Court dated 16.09.2012.

16. It is with this background facts, the question arises forCconsideration in this appeal is whether the view taken by the writ courtand the Appellate Court requires any interference.

17. Heard Mr. S.P. Hasurkar, learned counsel for the appellantand Ms. Anushree Prashit Kapadia, learned counsel for the respondents.

D18. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no case to interfere in the impugnedorder.

19. In our considered opinion, the High Court was right in holdingthat the question involved in these appeals is covered by the earlierdecision of the Gujarat High Court rendered in the case of Chief OfficerEvs. Mohamed Irshad Husenbhai Baloch and Others (supra) whichwas upheld by this Court by order dated 16.09.2013 and thus attainedfinality.

20. We find that in order to show that the decision rendered in thecase of Chief Officer vs. Mohamed Irshad Husenbhai Baloch andFOthers (supra) has no application to the facts of the case and that itdoes not lay down the correct principle and be held as per curium, theappellant (Municipality) made attempts and contended before the DivisionBench that there lies a distinction between the employees, who wereoriginally working with the Panchayat and later on convergence ofGPanchayat into the Municipality became the employees of the Municipalityby virtue of its merger and the employees, who were directly appointedby the Municipality.

21. It was contended that the employees, who fall in formercategory of case, were held entitled for the grant of pension but not H

those employees, who fall in the latter category of the case. It waspointed out that since the employees in the case of Chief Officer vs.Mohamed Irshad Husenbhai Baloch and Others (supra) fell in theformer category of the case and, therefore, they were held entitled toclaim the benefit of pension whereas the respondents of this case fall inthe latter category of cases, the benefit of decision rendered in the caseof Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others(supra) could not be granted to the respondents because they wereappointed directly by the appellant (Municipality).

22. The Division Bench while repelling the aforementionedsubmission took note of the following four undisputed facts arising in thiscase:

“1. The original petitioners-respondent No.1 herein in therespective appeals were appointed by the municipality andthey were in service of the municipality.

2. After the appointment, the employee concernedcontinued in service until he reached to the age ofsuperannuation, so far as LPA No.1066/15 is concerned.Whereas, in the rest of the Letters Patent Appeals, theservices of the employees concerned came to an end onaccount of death of the employees.

3. It is an undisputed position that the total length of servicein respect of all cases has exceeded 10 years which is theminimum requirement for eligibility of pension.

4. In respect of all employees, which is subject matter ofthe present group of appeals, they were member of GPFand GPF contributions were being deducted by themunicipality from their salary from time to time until theirservices came to an end.”

23. The Division Bench was of the view and, in our view, rightlythat the distinction sought to be made between the two groups ofemployees, namely, one coming from the Panchayat and then becomingthe Municipal employees and the other directly becoming the Municipalemployees was held to be of no significance because the appellant madethe respondents members of the GPF contributions and went on to deductregular contribution from their salary till the date of their retirement.

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A

A24. In our view, the case at hand is covered by the earlier decisionrendered in the case of Chief Officer vs. Mohamed Irshad HusenbhaiBaloch and Others (supra) which stands upheld by this Court by orderdated 16.09.2013. We are also of the view that the aforementioneddistinction pointed out by the appellant for coming out of the clutches ofthe decision of Chief Officer vs. Mohamed Irshad Husenbhai BalochBand Others (supra) was also rightly found untenable by the High Courtby assigning the proper reasons.

25. Keeping in view the aforementioned four undisputed factsarising in the case coupled with the decision rendered in the case ofChief Officer vs. Mohamed Irshad Husenbhai Baloch and OthersC(supra), which has attained finality, and was then given effect to in relationto concerned Municipal employees holding them eligible and entitled toclaim the pension and the pensionery benefits, we find no good groundto take any other view than the one taken by the writ court and theDivision Bench in the impugned order.

D

26. Learned counsel for the appellant (Municipality), however,placed reliance on one State Government’s Circular dated 28.11.1994(Annexure P-1) and contended that in the light of this circular, therespondents are neither eligible and nor entitled to claim the benefit ofpension. We find no merit in this submission.

E

27. Firstly, we find that it was not filed before the High Court(writ court/Division Bench); Secondly, the writ court and the DivisionBench did not refer it to; Thirdly, in any event, it is of no significance todecide the present controversy.

28. Its perusal shows that it applies to the cases of PanchayatFemployees, who later became the Municipal employees.

29. In the light of the foregoing discussion, we find no merit inthese appeals. The appeals thus fail and are accordingly dismissed.

30. The appellant (Municipality) is directed to finalize the pensioncases of the respondents herein and release the amount of pension afterGproper verification within four months from the date of this order.

Divya Pandey

Appeals dismissed.

H