JUDGMENT
S.D. Pandit, J.
1. Admitted. In these three appeals the subject-matter is based on the common question of law and facts. Hence, with the consent of parties they are heard together and they are being disposed of by this common judgment. We have heard the learned Counsels for the parties at length and by their consent we are finally disposing of these appeals. The learned Counsels for the respondents have waived service of notice of admission.
2. In L.P.A. No. 1335 of 1996 the appellants are the original petitioners in Special Civil Application No. 3191 of 1995 and in L.P.A. Nos. 447 of 1997 and 448 of 1997 the appellants are original respondent Nos. 1 and 2 in Special Civil Application No. 3707 of 1996. This Special Civil Application No. 3191 of 1995 is filed by Jamnagar-Rajkot Gramin Bank Officers Association and Employees Association against their employer Jamnagar-Rajkot Gramin Bank and formal respondent Assistant Provident Fund Commissioner; whereas Special Civil Application No. 3707 of 1996 is brought by Junagadh-Amreli Gramin Bank Officers and Employees Association and Surendranagar-Bhavnagar Gramin Bank Officers and Employees Associations against their employers Junagadh – Amreli Gramin Bank, Surendranagar-Bhavnagar Gramin Bank and other formal respondents. In both the petitions, the petitioners h;uo sought writ of mandamus against their employers from implementing their circulars by which they had decided to stop contributing more than Rs. 500 – per month in the P.F. account in cases of those officers and employees who were drawing pay (as defined by Employees Provident Funds & Miscellaneous Provisions Act) of Rs. 5.000 – or more. The petitioners also sought a direction from this Court to direct their Employers-banks to continue to contribute 10% of the pay of their employees officers who are drawing pay of Rs. 5,000/- or more per month.
3. In both Writ Pennon Nos. 3191 of 1995 and 3707 of 1996 the petitioners had sought interim relief by way of mandatory relief of directing their Employers-banks to continue to contribute 10% of the pay towards Provident Account of their officers and employees drawing pay of Rs. 5,000/- or more. In both writ petitions, namely, Special Civil Application No. 3191 of 1995 and Special Civil Application No. 3707 of 1996 ex-parte ad-interim relief was granted. But these petitions went before two different Hon’able Judges of this Court for considering the question of admission of the writ petition as well as the consideration of ex-parte ad-interim relief granted. Special Civil Application No. 3707 of 1996 came before the Court on 1-8-1996 and the Hon’able Judge of this Court was pleased to admit the writ petition and to make the ad-interim relief as absolute interim relief after hearing both the sides. Special Civil Application came before another Court on 4-10-1996 and the Hon’ble Judge of this Court after hearing both the sides was pleased to admit the writ petition but to vacate ad-interim relief. Thus, there are two contradictory orders and consequently these Letters Patent Appeals.
4. Jamnagar-Rajkot Gramin Bank, Junagadh-Amreli Gramin Bank and Surendranagar-Bhavnagar Gramin Bank are established under the provisions of the Regional Rural Bank Act. 1976. They have got many branches and have in their employment many officers and employees. All these 3 banks are also governed by the provisions of Employees Provident Fund and Misc. Provisions Act, 1952. The said enactment is a beneficent statute enacted to achieve welfare and benefit of the employees. Under the said Act, a scheme titled as Employees Provident Funds Scheme, 1952 is introduced. Under the provisions of the said Act as well as the Scheme every employee who draws a pay up to Rs. 5,000/- per month is bound to contribute 10 per cent of his pay towards his Provident Fund Account and the employer is also to contribute equal amount of 10 per cent of the pay of the employee towards the Employees Provident Fund Account. Under the main Act as well as under the Scheme an employee who draws a pay of Rs. 5,000/- or more cannot become a member of the said Scheme. This is provided by giving the definition of “excluded employee” under Clause 2(1) of Employees Provident Funds Scheme, 1952. That Clause No. 2(0 is running as under:
2(f) “excluded employee” means-
(i) an employee who, having been a Member of the Fund, withdrew the full amount of his accumulations in the Fund under Clause (a) or (c) of Sub-paragraph (1) of Paragraph 69;
(ii) an employee whose pay at the time he is otherwise entitled to become a Member of the Fund, exceeds five thousand rupees per month;
Explanation: “Pay” includes basic wages with dearness allowance (retaining allowance (if any) and cash value of food concessions admissible thereon);
Explanation – An apprentice means a person who, according to the certified Standing Orders applicable to the factory or establishment, is an apprentice, or who is declared to be an apprentice by the authority specified in this behalf by the appropriate Government;)
But Clause 26(6) of the said Employees Provident Fund Scheme, 1952 provides that if the employer and employees make a joint request to the officer of not below rank of Assistant Provident Fund Commissioner to admit the employees drawing pay of Rs 5.000/- or more per month then they can be also admitted as members of the said Scheme. The said provision of Clause 26(6) runs as under:
26(6) Notwithstanding anything contained in this paragraph an officer not below the rank of an Assistant Provident Fund Commissioner may, on the joint request in writing of any employee of a factory or other establishment to which this Scheme applies and his employer, enrol such employee as a member or allow him to contribute on more than rupees five thousand of his pay per month if he is already a member of the Fund and thereupon such employee shall be entitled to the benefits and shall be subject to the conditions of the Fund, provided that the employer gives as undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employee.
5. Jamnagar-Rajkot Gramin Bank and its employees had approached the Assistant Provident Fund Commissioner under Clause 26(6) of the Employees Provident Fund Scheme, 1952 by letter dated 7-10-1988 to admit the employees drawing Rs. 5.000/- or more per month as the members of the said Scheme. That permission was granted by the letter dated 2-2-1989. Similarly, Junagadh-Amreli Gramin Bank and its employees had jointly sought similar permission by letter dated 25-2-1993 and permission was sought on 23-9-1993. Thereafter, both these banks namely, Jamnagar-Rajkot Gramin Bank and Junagadh-Amreli Gramin Bank were contributing 10% of the pay amount of their employees who were drawing Rs. 5,000/ – or more every month besides the deductions and cutting of 10% of the said employees pay in their respective Provident Fund Accounts. Surendranagar-Bhavnagar Gramin Bank was also contributing 10% amount of pay amounts of their employees who were drawing pay of Rs. 5,000/- or more under the provisions of Clause 26(6) of the Employees Provident Fund Scheme, 1952.
6. But it seems that in 1995 all the three banks came to the conclusion that under the provisions of the said Act of 1952 as well as the said Employees Provident Fund Scheme, 1952 the employer-bank was bound to contribute only Rs. 500/- per month towards the Provident Fund Account of the employees who were drawing pay of Rs. 5,000/- or more irrespective of the fact that the employee’s 10% contribution might be more than Rs. 500/- in view of his monthly pay. Therefore, Jamnagar-Rajkot Gramin Bank issued a circular on 18-4-1995 stating therein that the Bank will contribute only Rs. 500/- per month in respect of the employee/officer drawing a pay of Rs. 5,000/- or more per month and the Bank has discontinued its earlier decision to contribute 10% of the pay amount towards the Provident Fund Account of the employee/officer drawing a pay of Rs. 5,000/- or more. Similar circulars conveying the same decision were issued by Jamnagar-Amreli Gramin Bank and Surendranagar-Bhavnagar Gramin Bank on 17-7-1995 and 5-7-1995 respectively. These 3 circulars timed 1N-4-1995. 17-7-1995 and 5-7-1995 are challenged by the petitioners in the two writ pennons by contending that (1) the request to admit the employees officers drawing pay of Rs. 5,000/- or more was made jointly by the employees and the employer-banks under Clause 26(6) of the Employees Provident fund Scheme. 1952, it is not open to the employer-bank to withdraw from the said joint action unilaterally. (2) that the employer cannot act prejudicial to the welfare of the employees by withdrawing from the benevolent scheme and (3) the action of the employer is against the principles of natural justice as no opportunity of being heard was afforded to the petitioners-employees/officers before taking the said decision.
7. It is the contention of the banks-employers that if the provisions of the Section 6 of the main Act as well as the Scheme under the Act are considered, then it will be quite clear that the employees/officers who are drawing pay of Rs. 5,000/- or more are the “excluded employees” and the employers are not bound to make any contribution towards their provident fund accounts. Thus, under the law there is no either duty or obligation of the employer to make contribution in provident fund accounts, of their employees/officers drawing Rs. 5,000/- or more as pay per month. Hence, the joining of the bank-employees in the joint request under Clause 26(6) was a voluntary administrative decisions. Similarly, the earlier action on the point of the banks to contribute 10% of the pay of the employees/officers drawing more than Rs. 5,000/- or more was on account of bona fide mistake on their part as well as the Provident Fund Department. When they realised the mistake and come to proper interpretation of the provisions of the main Act as well as the Scheme they have taken the correct and proper decision. They contended that in view of the provisions of the Clause 26-A(2) of the Employees Provident Fund Scheme, 1952, their decision is proper and correct. They contended that the circulars issued by them are quite valid and legal and that petitioners’ claim are ill-based and not tenable in law.
8. We are aware that we are hearing these Letters Patent Appeal against the interim relief sought by the original petitioners. If we happened to give our decision, even prima facie on any of the contentions raised by the parties then the same is likely to result into causing prejudice to the party against whom we happened to express our view. The interim relief which the petitioners have sought is such that the giving of the same will result into the finally deciding the controversy between the parties. From the averments made in the petition it is not possible to hold that by non-granting of the interim relief the petitioner will suffer irreparable injury that could not be compensated adequately by payment of money. From the letter of Assistant Provident Fund Commissioner the amount once paid by the bank could not be refunded to them and the bank could not be also allowed to adjust the same towards their liability in respect of future contribution or towards contribution payable in other accounts. Therefore, in view of all the above circumstances, we are of the opinion that it would not be proper and just to pass an order of interim relief as sought by the original petitioners. In the case of Bank of Mahrashtra v. Rice Shipping & Transport Co. Pvt. Ltd. it has been observed as under:
The practice of granting interim order which practically gives the principal relief sought by the petitioner for no better reason than that a prima-faice case is made out, without being concerned of the balance of convenience, the public interest and host of other considerations is deprecated.
9. In view of the above facts and the controversy between the parties and the nature of interim relief sought which is in the nature of final relief, we are of the view that taking into consideration the balance of convenience and the interest of both the parties the order of interim relief granted in Special Civil Application No. 3707 of 1995 and the order of refusing to grant interim relief in Special Civil Application No. 3191 of 1995 are to be set aside and in their place the following order is to be substituted:
The respondent-Banks, namely, Jamnagar-Rajkot Gramin Bank, Junagadh-Amreli Gramm Bank and Surendranagar-Bhavnagar Gramin Bank should continue to credit Rs. 500- (Five hundred) per month in the Provident Fund Accounts opened under the provisions of Employees Provident Funds Scheme, 1952, in respect of their employees/officers who are drawing pay of Rs. 5,000/- p.m. or more. The said Banks should also open separate account in their Own Bank for crediting the amount exceeding Rs. 500/- and up to 10% of the monthly pay of their employees/officers drawing pay of more than Rs 5.000/- per month. On the said amounts credited in the separate account as directed above the Bank should give compound interest at the rate of interest payable on the provident fund under “The Employees Provident Fund Scheme, 1952”. In case if the petitioners happened ultimately succeed in the main petitions of S.C.A. No. 3191 of 1995 and S.C.A. No. 3707 of 1996 then the amount credited by the respondents-Banks in the separate accounts as directed above should be paid on the provident fund accounts of the employees/officers. In case if the petitioner happened to fail in establishing their claim in the petitions then the Banks are to get the amount lying in the said separate accounts opened as per the above directions.
The Banks should also file a statement every month in the petitions showing what amounts are credited and in whose name in the said accounts.
The above arrangement is to be carried out from July, 1997.
Liberty to apply in case of difficulty.
10. Before finally disposing of this L.P.A., it is necessary to consider one of the contentions raised by the learned Counsel for the appellant in L.P.A. No. 1335 of 1996. It is contended on behalf of the appellants that when interim relief granted ex-parte was made absolute in S.C.A. No. 3707 of 1996 and when the facts of that S.C.A. No. 3707 of 1996 and S.C.A. No. 3191 of 1995 are exactly similar, the learned Judge was not justified in vacating the ad-interim relief granted in favour of the appellants-original petitioners. At the outset, it must be stated that from the order of the learned single Judge, it is not possible to find that the contention of Mr. Patel as raised before us, was raised before the learned single Judge. The order of the learned single Judge does not show that it was urged before the learned single Judge that the interim relief granted in S.C.A. No. 3707 of 1996 was absolute while admitting the said writ petition. Therefore, though we agree with the submission of Mr. Patel that the facts of S.C.A. No. 3707 of 1996 and this S.C.A. No. 3191 of 1995 are exactly similar, we are unable to hold that the contention which was raised before us, was in fact raised before the learned single Judge. It must be also mentioned here that when the party or an Advocate submits before the Court that in the similar manor, this Court has taken a particular view, the party cannot be permuted to raise the said contention without producing the copy of the order and the copy of writ pennon in which according to the learned Advocate/party, an order or a particular view is taken and that the same view should be followed by this Court. Only on production of write petition and the order it will be possible for the Court to verify the said claim.
11. Therefore, it is incumbent upon the learned Advocate for J the party or parts to produce copy of the writ petition and copy of the order before the Court in order to find out as to whether in the similar facts the Court has taken earlier a particular view Judicial comity requires that if in the earlier proceedings a particular view is taken by the Court, in the similar facts it is not proper for another single Judge to take a different view unless it is found that the earlier order is incuriam. Judicial discipline requires that if the succeeding Judge is of a different view and wants to interpret the facts and the position of law in a different way, then to refer the matter to a Division Bench by expressing his view and to decide which of the two views is correct. Such a procedure is necessary to be adopted by the Court in order to maintain Judicial discipline and to create confidence in the judicial system. In the instant case, we are unable to hold that the earlier order passed in S.C.A. No. 3707 of 1996 as well as the copy of the writ petition No. 3707 of 1996 was produced before the learned single Judge and it was urged before the learned single Judge that in view of the same the Court cannot take a different view. No doubt though the facts of S.C.A. No. 3707 of 1996 and S.C.A. No. 3191 of 1995 are exactly similar, two inconsistent and contrary views are taken by two single Judge Benches while passing final order as regards interim relief after ex-parte ad-interim relief was granted in favour of the petitioner. But that has taken place due to the fact that the earlier decision in S.C.A. No. 3707 of 1996 was not brought to the notice of the learned Judge who dealt with S.C.A. No. 3191 of 1995.