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2006 DIGILAW 520 (JHR)

Chandra Shekhar Sharma v. Bharat Coking Coal

2006-05-02

SUDHANSU JYOTI MUKHOPADHAYA

body2006
JUDGMENT S.J. Mukhopadhaya, J. 1. This writ petition has been preferred by the petitioner for a direction on the respondents to pay him the pension and arrears of pension in pursuance of Coal Mines Pension Scheme, 1998 (hereinafter to be referred as "Pension Scheme, 1998"). Further prayer has been made to set aside the order, contained in Letter No. BCCL/Pension/2005/170 dated 6th/8th June, 2005, issued by the Personnel Manager (Pension Ceil), Bharat Coking Coal Limited, Koyla Bhawan, Dhanbad (hereinafter to be referred as "B.C.C.L."), whereby and whereunder, claim of the petitioner for payment of pension under the Pension Scheme, 1998 has been rejected on the ground that he had not submitted Form PS-1 in time. 2. In their counter affidavit, the respondents have taken plea that the petitioner had not opted for Family Pension under the Pension Scheme, 1998 by submitting Form PS-1, which came into effect since 31st March,1998. 3. By order dated 2nd March, 2006 the respondents were directed to file affidavits, giving details of deduction, as made between October, 1983 to July, 2003 from the salary of the petitioner towards Family Pension Scheme and the amount, if any, returned with statutory interest. In reply, the following statements have been made: 6. That it is stated and submitted that deductions were erroneously made towards Family Pension Fund and the same was sent to the respondent No. 5, CMPF and as such the respondent No. 5 is liable to pay the said amount with interest. The breakup of the amount deducted towards Family Pension Fund is given as under: (i) In March 1984- Rs.69.60 (ii) From March 1985 to March 1998- Rs. 228/- per year. (iii) In March 1999-Rs. 2013/- (iv) In March 2000- Rs. 2402/- (v) In March 2001-Rs. 2987/- (vi) In March 2002- Rs. 5813/- (vii) In March 2003- Rs. 5280/- (viii) In March 2004- Rs. 5465/- It is reiterated here that the said contributions were transmitted to the A/c maintained by the respondent No. 5 and as such the said amount together with interest was payable by the respondent No. 5. It is further submitted and to the best of the knowledge of the deponent, the said amount together with interest has been refunded to the petitioner along with PF accumulation amounting to Rs. It is further submitted and to the best of the knowledge of the deponent, the said amount together with interest has been refunded to the petitioner along with PF accumulation amounting to Rs. 15,55,381/- (at the time of his PF Claim Settlement) as would be evident from Annexure-C of the Counter Affidavit of the answering respondents. 7. That it is further stated and submitted that 2% was deducted from the Salary of the petitioner towards Pension from March 1999 to the date of retirement. The details thereof is as under: (i) 1997-98 Rs. 11891.31 (As per Clause 3(c) of CMPS, 1998) (ii) March 1999- Rs. 4746.92 (iii) March 2000- Rs. 3608/- (iv) March 2001- Rs. 7766.36 (v) March 2002-Rs. 11145.48 (vi) March 2003-Rs. 9314.24 (vii) March 2004- Rs. 2433/- The total amount so deducted is Rs. 50,905.31. The petitioner is entitled to refund of the same with prescribed rate of interest (accruing to Rs. 25,916.17 Approximately). It is stated that the petitioner is entitled to take refund of the same for which a claim has to be submitted by him before the Area General Manager, Barora Area. It is humbly submitted that once such claim is submitted, the same will be processed and the amount would accordingly be refunded to the petitioner. 4. Salient feature of Coal Mines Pension Scheme, 1998, notified on 5th March, 1998, has been enclosed as Annexure 6 to the writ petition. The eligibility for pension has been prescribed under Clause 4 of the said Scheme, which reads as follows: 4. Eligibility for pension:- (1) An employee who was a member of the Coal Mines Family Pension Scheme, 1971 immediately before the appointed day and has not attained the age of superannuation shall be deemed to be eligible for pension under the provisions of this Scheme from the appointed day. Eligibility for pension:- (1) An employee who was a member of the Coal Mines Family Pension Scheme, 1971 immediately before the appointed day and has not attained the age of superannuation shall be deemed to be eligible for pension under the provisions of this Scheme from the appointed day. (2) An employee who had not opted for the Coal Mines Family Pension Scheme, 1971 but is covered by the Provident Fund Scheme, may opt for pension under the provisions of this Scheme within a period of three hundred and (*) sixty days from the appointed day and he shall be deemed to have become the member of the Scheme from the date of his exercising the option in Form-PS-1: Provided that an employee exercising the option under the provisions of this sub-paragraph shall have to deposit in the Pension Fund either in cash or by way of deduction in instalments from his monthly salary or by transfer from his provident fund account to the pension Fund, the arrears equivalent to the amounts specified in Clauses(b),(c),(d) and (e) of para graph 3, alongwith interest from the first day of March, 1971 till the date of exercising the option. (3) An employee joining the service on or after the appointed day shall be governed by the provisions of this Scheme from the date of his joining. (4) An employee who was a member of the Coal Mines Family Pension Scheme, 1971 on the date of his superannuation or retirement(*) on or after the first day of April, 1994, may also opt for the pension under the provisions of this Scheme from the date of his superannuation or retirement (*) within a period of three(*) hundred and sixty(*) days from the appointed day and he shad be deemed to have become the member of the Scheme from the date of his exercising the option in Form- P.S-2: 5. Counsel for the C.M.P.F. stressed on Clause 3, which relates to establishment of the Pension Fund but was not in a position to suggest as to how Clause 3 can be relied to deny the benefit to the petitioner. 6. Admittedly, the petitioner was a member of "Coal Mines Family Pension Scheme, 1971". Counsel for the C.M.P.F. stressed on Clause 3, which relates to establishment of the Pension Fund but was not in a position to suggest as to how Clause 3 can be relied to deny the benefit to the petitioner. 6. Admittedly, the petitioner was a member of "Coal Mines Family Pension Scheme, 1971". Under Sub-clause (1) of Clause 4 of Pension Scheme, 1998, as quoted above, the petitioner, being a member of Coal Mines Family Pension Scheme, 1971, immediately before the appointed day (31st March, 1998) and having not attained the age of superannuation, shall be deemed to be eligible for pension under the provisions of Pension Scheme, 1998 from the appointed day. 7. The respondents in their counter affidavit have accepted that the deductions were also made towards pension from the salary of the petitioner, as quoted in the preceding paragraph. Merely because they have wrongly refunded the amount with statutory interest to the petitioner cannot be a ground to deny the benefit to the petitioner, for the laches of the Management. If the total amount, so deducted, along with the statutory interest was (*) -Amendments have been made vide H.Qr. Letter No. 483 dated 5.5.2000 wrongly refunded to the petitioner after retirement, that illegality will not legalize an illegal order of rejection, as made vide Letter No. BCCL/Pension/2005/170 dated 6th/8th June, 2005. 8. If the total amount, so deducted, along with the statutory interest was (*) -Amendments have been made vide H.Qr. Letter No. 483 dated 5.5.2000 wrongly refunded to the petitioner after retirement, that illegality will not legalize an illegal order of rejection, as made vide Letter No. BCCL/Pension/2005/170 dated 6th/8th June, 2005. 8. For the reasons aforesaid and in the interest of justice, the following orders are being passed: (i) The order, contained in Letter No. BCCL/Pension/ 2005/170 dated 6th/8th June, 2005, issued by the Personnel Manager (Pension Ceil), B.C.C.L., Koyla Bhawan, Dhanbad, is set aside; (ii) The petitioner is directed to return the amount with statutory interest to the respondents, as detailed in their counter affidavit and quoted above, immediately; (iii) The petitioner having retired from the service of B.C.C.L. on 31st of July, 2003 and the amount with statutory interest having been paid to him on 19th May, 2004, he will be entitled for calculation of statutory interest for the period from 31st July, 2003 to 18th May, 2004; (iv) Pension amount with statutory interest having remained with the petitioner with effect from 19th May, 2004 till the amount is returned to the respondents, he will not be entitled for statutory interest of this intervening period; (v) On receipt of the amount, so returned, the respondents will pay the petitioner the benefit of pension as per the Pension Scheme, 1998 for the period from August, 2003 onwards. Current pension shall be paid within fifteen days from the date of refund, as ordered above. The arrears of pension for the period from August, 2003 onwards shall be paid within six weeks from the date of refund of the amount, as ordered above. 9. The writ petition is, accordingly, allowed with the aforesaid observations and directions. Petition allowed.