GUJARAT ELECTRICITY BOARD Vs. M N MALEK

JUDGEMENT

(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.