IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 260 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE S.K.KESHOTE ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- HEMLATABEN WD/O J K JANI SINCEDECEASED THROUGH HEIRS & L.R. Versus JAMNAGAR MUNICIPAL CORPORATION -------------------------------------------------------------- Appearance: MR SUNIL K SHAH for Petitioners MR JR NANAVATI for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 25/10/1999 ORAL JUDGEMENT 1. Late Shri Jayantilal K.Jani was an employee of the Corporation. After serving the Corporation for more than 20 years, he retired from the services on attaining the age of superannuation on 20.4.1976. He was covered under the Contributory Provident Fund Scheme. On his retirement the amount of Contributory Provident Fund lying deposited in his account was paid to him and he accepted the same. Whatever the other retiral benefits for which he was entitled have also been given to him on his retirement. He has not taken any legal proceedings either before the Labour Court, Civil Court or before this Court claiming the benefits of Pension Scheme and Family Pension Scheme. He died in the year 1986. After his death, widow Hemlataben, aged about 76 years filed this petition in the court on 19.1.1993 and she prayed for directions to the respondent - Corporation to pay her the amount of arrears of the pension w.e.f. 21.4.1976 to 12.12.1986 of late Shri Jayantilal Keshvji Jani and to pay her the arrears of Family Pension from 13th December, 1986 and further direction to the respondent Corporation to continue to pay the Family Pension to her. This claim has been made on the ground that under the settlement before the Industrial Tribunal, Ahmedabad, the respondent - Corporation agreed to extend the benefits of pension and D.C.R.G.Scheme to its employees. 2. During the pendency of this Special Civil Application, widow has also expired and her legal heirs petitioner nos.1/1 to 1/3 are on the record of this Special Civil Application. If, we go by the details of the heirs and legal representatives, these are son and daughters and they are aged 54, 56 and 48 years. Leaving apart the question whether late Shri Jayantilal K.Jani would have been entitled for the pension and D.C.R.G.Scheme or her widow for Family Pension or not, it is not in dispute that, on his retirement he got all the benefits of the Contributory Provident Fund Scheme without any objection or protest. It is further borne out from the record of this case that till his death, he has not made any claim in this respect either by raising industrial dispute or by filing civil suit or by filing the petition before this court. Once, he accepted that scheme and has not prayed for shifting to the pension and D.C.R.G.Scheme during his services, the widow is estopped to raise or to make such claim before this court. Right of the Family Pension to the widow flows from the right of her husband of pension and D.C.R.G.Scheme. When he was not given the benefit of pension and D.C.R.G. Scheme, she is not entitled for this benefit. The employee was satisfied with the benefits which were given to him of the Contributory Provident Fund Scheme etc. It is not permissible both legally as well as on equity to the widow to file this petition before this court under Article 226 of the Constitution of India for these reliefs. Otherwise also, this is an extra ordinary equitable jurisdiction and in the facts of this case, that during the lifetime late Shri Jayantilal K.Jani has not raised any claim for the pension and D.C.R.G.Scheme and this petition has been filed after more than 20 years of his retirement and 7 years after his death, discretionary remedy cannot be permitted to be availed of by the petitioner. 3. In the result, this Special Civil Application fails and the same is dismissed. Rule discharged. Interim relief, if any, granted stands vacated. No order as to costs. (S.K.Keshote,J.) (pathan)