LPA/472/2001 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 472 of 2001 In SPECIAL CIVIL APPLICATION No. 607 of 1992 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= H C MEHTA & 104 - Appellant(s) Versus MANAGING DIRECTOR & 2 - Respondent(s) ========================================================= Appearance : MR RJ OJA FOR M/S THAKKAR ASSOC. for Appellant(s) : 1 - 105. MR KM PATEL for Respondent(s) : 1, MS TANUJA KACHHI, ASST. GOVERNMENT PLEADER for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 24/03/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) LPA/472/2001 2/7 JUDGMENT This Appeal, preferred under Clause 15 of the Letters Patent, arises from the judgment and order dated 1st December, 2000 passed by the learned Single Judge in above Special Civil Application No.607 of 1992. The appellants, writ petitioners, are the former employees of the Ahmedabad Municipal Corporation (hereinafter referred to as “the Corporation”), respondent No.3 herein. In the year 1979, under a tripartite agreement, the service of the appellants came to be transferred to Gujarat Dairy Development Corporation (hereinafter referred to as “GDDC”), respondent No.1 herein. The appellants were employed by the Corporation in Abad Dairy run and managed by it. On 28th December, 1979, the Corporation entered into an agreement with GDDC to sell Abad Dairy to GDDC on the terms and conditions mentioned in the said agreement. Under the said agreement, the Corporation agreed, inter alia, to transfer service of the employees of the Abad Dairy (the appellants herein) to GDDC. The GDDC agreed that the terms and conditions of the service of the said employees after their transfer to GDDC would not be less favourable. It is admitted that at LPA/472/2001 3/7 JUDGMENT the relevant time the employees of the Corporation were governed by Contributory Provident Fund Scheme (hereinafter referred to as “the CPF Scheme”). The appellants were also the members of the CPF Scheme. On transfer of their service to GDDC, they continued to be governed by CPF Scheme. In course of time, the appellants have either opted for voluntary retirement or have retired from the service of GDDC on reaching the age of superannuation. We are also informed that on their retirement, the appellants have availed of the monetory benefit under the CPF Scheme. They have recovered the amount of provident fund including the contribution made by the employer. We are also informed that the service of the appellant No.1 was terminated on the ground of loss of confidence. In the year 1984, the Corporation introduced a pension scheme for its employees effective from June, 1983. The appellants preferred the above Special Civil Application No.607 of 1992 to claim the benefit of the said pension scheme. According to the appellants, GDDC had agreed to maintain the service conditions of the appellants at par with the employees of the Corporation. The appellants were, LPA/472/2001 4/7 JUDGMENT therefore, entitled to opt for pension scheme introduced by the Corporation. The reliance is placed on the resolution dated 25th March, 1981 passed by GDDC. The claim is rejected by the learned Single Judge. Mr. Oza has appeared for the appellants. He has assailed the judgment of the learned Single Judge. He has submitted that under the tripartite agreement executed on 28th December, 1979, the parties to the agreement specifically agreed that the terms and conditions of service applicable to the appellants after the transfer shall not be in any way be less favourable. By the aforesaid resolution dated 25th March, 1981 GDDC had resolved that the pay and the service conditions of the employees of the Abad Dairy be maintained at par with the employees of the Corporation. The claim made by the appellants for extension of the pension scheme arises from the aforesaid resolution passed by GDDC. The appellants, therefore, have a statutory right to opt for pension scheme. The terms and conditions of tripartite agreement LPA/472/2001 5/7 JUDGMENT and the aforesaid resolution passed by GDDC are considered by the learned Single Judge. The learned Single Judge has noted that the service of the appellants was transferred to GDDC long before the Corporation adopted pension scheme for its employees. At the time of transfer of their service, the appellants were governed by the CPF Scheme and they continued to be governed by the said scheme under the service of GDDC. Besides, GDDC had agreed to maintain the pay and other service benefits at par with the employees of the Corporation. The said resolution specifically referred to the fringe benefits like cycle allowance, interim relief, leave travel concession. The learned Single Judge has also noted that though the pension scheme was introduced in the year 1984, the claim was not raised until 1992. In the meantime, many of the appellants had retired from service and had availed the benefit of CPF Scheme without raising objection. In view of the said observations, the learned Single Judge was pleased to dismiss the writ petition. As recorded hereinabove, by the aforesaid tripartite agreement, GDDC did agree, inter alia, to LPA/472/2001 6/7 JUDGMENT accept the service of the employees of the Abad Dairy, to treat their service as continuous and that the conditions of their service after transfer to GDDC shall not be in any way less favourable. Further, the executive committee of Abad Dairy in its meeting held on 19th March, 1981 did recommend that the pay and pay scale and other fringe benefits of Abad Dairy unit of GDDC be maintained at par with the employees of the Corporation and the service conditions of the employees of Abad Dairy be the same as those of the employees of the Corporation with required modifications. Be it noted that the above recommendation was made pursuant to the demands made by the employees of the Abad Dairy for increase in cycle allowance, rate of interim relief, pay revision and leave travel concession at par with the employees of the Corporation. The executive committee was of the opinion that if the management agreed to maintain parity as to the pay and perquisites with the employees of the Corporation, there may not be constant agitation by the employees of Abad Dairy and disruption of work. The above recommendation made by the executive committee was approved by the Board of Directors of GDDC in its meeting held on 25th March, 1981. It is evident that what was agreed upon was to LPA/472/2001 7/7 JUDGMENT maintain parity in respect of pay and fringe benefits. The said decision certainly did not include the pension scheme which was not even envisaged by then. We are in agreement with the reasoning of the learned Single Judge. The claim made by the present appellants for extension of the pension scheme introduced by the Corporation for its employees after the service of the appellants was transferred to GDDC is too tall. It has rightly been rejected by the learned Single Judge. For the aforesaid reasons, we dismiss this Appeal with cost. (Ms. R.M.Doshit, J.) kdc (K.M.Thaker, J.)