RSA No.560 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.560 of 2007 (O&M) Date of Decision: 16.9.2008 Arjun Dev Nagpal .....Appellant Vs. Haryana State Electricity Board (now U.H.B.V.N. Ltd., Panchkula and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.M.P.S. Mann, Advocate for the appellant. Mr.Narender Hooda, Advocate for the respondents. .... RAJIVE BHALLA, J (Oral) CM No.8110-C of 2008 Though the prayer in the present application is for early hearing but with the consent of counsel for the parties, the main case is taken up for hearing. RSA No.560 of 2007 The appellant, challenges judgements and decrees dated 18.9.2002 and 22.5.2006 passed by the Additional Civil Judge, (Senior Division) Yamuna Nagar at Jagadhri and the District Judge, Yamuna Nagar at Jagadhri, respectively, dismissing his suit and the appeal. The plaintiff-appellant filed a suit praying for a declaration that he is entitled to retiral benefits including pension, provident fund, gratuity etc. It is pleaded that vide instructions dated 12.9.1984, the respondent- Board, asked its employees to opt for the E.P.F. or the General Provident RSA No.560 of 2007 (O&M) 2 Fund Scheme (G.P.F.). The plaintiff exercised his option on 10.10.1984, but for reasons best known to the respondents, till his retirement, no order was passed In response to the suit, the respondents submitted that as the appellant was a member of the E.P.F. Scheme and has received post retiral payments thereunder, his case for grant of pension and gratuity etc. could not be considered under the G.P.F. Scheme. After an appraisal of the pleadings, the trial Court framed the following issues :- “1. Whether plaintiff is entitled to all the retiring benefits in terms of pensionary benefits including Provident Fund etc. If so whether he is entitled to mandatory injunction in this regard alongwith interest @ 17% per annum on the delayed payment w.e.f. 3.13.1994 ? OPP. 2. Whether present suit is not maintainable ? OPD. 3. Whether plaintiff has no cause of action to file the present suit ? OPD. 4.Whether present suit is bad for non-joinder of necessary parties ? OPD. 5. Whether this court has got no jurisdiction to entertain and try the present suit ? OPD. 6. Relief.” Upon consideration of the evidence and the arguments addressed by counsel for the parties, the trial Court dismissed the suit by holding that as the appellant is a member of the E.P.F. Scheme, he could not RSA No.560 of 2007 (O&M) 3 be allowed to shift to the G.P.F. Scheme. As regards the option exercised by the appellant, to be allowed to shifting from the E.P.F. Scheme to the G.P.F. scheme, the learned trial Court did not record any opinion. Aggrieved by the aforementioned judgement, the appellant filed an appeal. The District Judge, Yamuna Nagar, dismissed the appeal and affirmed the findings recorded by the trial Court. Counsel for the appellant submits that the trial Court and the first appellate Court have failed to appreciate the nature of the controversy placed before them. The appellant pleaded and proved that he had opted for the G.P.F. Scheme and that his option was never considered or decided by the respondents. The Courts below, however, proceeded to decide the dispute on an erroneous assumption that as the appellant was a member of the E.P.F. Scheme, he could not shift to the G.P.F. Scheme, ignoring the option exercised by the appellant. It is further submitted that the dispute in the present case is squarely covered by the judgement in CWP No.11606 of 1997 (Dharam Singh V. State of Haryana and others) and CWP No.16434 of 1997 (Ravi Dutt Mehta V. State of Haryana and others) decided on 18.9.2004, wherein while considering a similar controversy, it has been held that as the employees were offered an option to shift to the G.P.F. Scheme, the respondent electricity board could not reject the option duly exercised by an employee. The order disallowing the benefit under G.P.F. Scheme was, therefore, quashed and the respondents were directed to pay pensionary benefits to the petitioners, in accordance with their entitlement after appellant's refund of the entire amount of employer's contribution alongwith interest accruing thereon. Counsel for the respondents submits that as the appellant opted RSA No.560 of 2007 (O&M) 4 for the E.P.F. Scheme, he could not thereafter, change his option and become a member of the G.P.F. Scheme. Even otherwise, as the appellant's exercise of option was rejected, it is too late in the day to grant relief. As regards the judgements referred to by counsel for the appellant, it is submitted that these judgements are not applicable and are distinguishable on facts. I have heard learned counsel for the parties and perused the impugned judgements. The following substantial questions of law arise for consideration :- (i) Whether the Courts below could have dismissed the suit and the appeal, without deciding whether the appellant had exercised an option to shift from the E.P.F. Scheme to the G.P.F. Scheme ? (ii) Whether, in view of the aforementioned judgements, the Courts below were justified in dismissing the suit and the appeal ? The trial Court, as well as the first appellate Court, failed to comprehend the dispute before them. The question before the Courts below was whether the appellant had exercised his option, to shift from the E.P.F. Scheme to the G.P.F. Scheme within time and if so whether it was wrongly rejected. Admittedly, the appellant exercised his option to shift to the G.P.F. Scheme on 10.10.1984. The respondents, however, did not pass any order accepting or rejecting the exercise of option upto the appellant's RSA No.560 of 2007 (O&M) 5 retirement. The option was rejected after retirement on the ground that the appellant is a member of the E.P.F. Scheme. The Courts below proceeded to dismiss the suit and the appeal on the sole premise that as the appellant is a member of the E.P.F. Scheme, he is not entitled to pension, disregarding the appellant's prayer, his pleadings and the evidence. The controversy herein is, therefore, squarely covered by the judgements reported as Dharam Singh V. State of Haryana and others (supra) and Ravi Dutt Mehta V. State of Haryana and others (supra). It would also be necessary to mention here that the Special Leave Petition filed against the jugement in Dharam Singh's case (supra) has been dismissed. In view of what has been stated herein above, the appeal is allowed and the judgements and decrees dated 18.9.2002 and 22.5.2006 passed by the Additional Civil Judge, (Senior Division) at Yamuna Nagar at Jagadhri and the District Judge, Yamuna Nagar at Jagadhri, respectively, are set aside and the suit filed by the appellant is decreed in the following terms :- (a) the respondents are directed to pay pensionary benefits to the appellant, in accordance with his entitlement, as per relevant rules and regulations; (b) the appellant shall refund the entire amount of employer's contribution towards provident fund alongwith interest accrued thereon, in lump-sum, by crediting the same to the respondent's bank within two months from the date of receipt of a certified copy of this order; (c ) the respondents shall release the pensionary RSA No.560 of 2007 (O&M) 6 benefits to the appellant, in accordance with law, within a period of two months of the appellant's depositing the amount of E.P.F., as directed above. No order as to costs. 16.9.2008 (RAJIVE BHALLA) GS JUDGE