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2013 DIGILAW 708 (CAL)

Sankar Majhi v. Coal India Limited

2013-09-19

SAMBUDDHA CHAKRABARTI

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Judgment : Sambuddha Chakrabarti, J. The petitioner joined the Eastern Coal Fields Limited on January 1, 1973 and superannuated on June 1, 2001. The grievance of the petitioner is that although he was getting pension regularly the respondents authorities suddenly stopped his pension for which the petitioner made several representations. But they did not yield any result. After a long time the Regional Commissioner, Region I (CMPS), i.e., the respondent no. 9 herein, intimated the petitioner by his letter dated July 23, 2010 that he was not eligible to be a member of the CMPS, 1998 and in such view of it he was not entitled to get his pension. The petitioner alleges that while he was in employment he duly filled up the requisite forms which he was asked to by the respondents authorities. After his retirement he had received the provident funds dues and was receiving the pension which was suddenly stopped on the plea that he had not filled up PS-1 form. According to him as soon as he joined the company he automatically became a member of the Coal Mine Family Pension Scheme, 1971 and after coming into force of the subsequent Scheme in 1998 he became automatically a member of the latter Scheme and as such the question of separately filling up PS-1 form did not arise. Since contribution of pension had been deducted from his salary the question of further filling up of PS-1 did not arise. The petitioner has further assailed the decision of the respondents alleging that the whole purpose of filling up PS-1 form was to authorize the respondents to deduct the contribution. But when the deduction had already been made further filling up of PS-1 form was bound to create further complications. The petitioner has, therefore, inter alia, prayed for a writ in the nature of Mandamus commanding the respondents to provide the pensionary benefits with effect from October, 2006 with interest calculated at the rate of 18 per cent. thereon after setting aside the letter dated July 23, 2010 and for other reliefs. The respondents nos. 8 and 9 have affirmed an affidavit-in-opposition denying the allegations made by the petitioner. It has been the case of the answering respondents that the Coal Mines Compensation Scheme, 1978 (the Scheme, for short) was notified on March 5, 1978 under Coal Mines Provident Fund and Miscellaneous Provisions (Amendment) Act, 1996. The respondents nos. 8 and 9 have affirmed an affidavit-in-opposition denying the allegations made by the petitioner. It has been the case of the answering respondents that the Coal Mines Compensation Scheme, 1978 (the Scheme, for short) was notified on March 5, 1978 under Coal Mines Provident Fund and Miscellaneous Provisions (Amendment) Act, 1996. On perusal of the pension claim of the petitioner it was found that his actual date of joining was October 6, 1969 and he did not exercise the option to join the erstwhile scheme and as such no contribution was deducted by the colliery management. The petitioner superannuated from his service on May 31, 2001. After a through scrutiny of records it was found that the petitioner had exercised his option to join the pension scheme which came into force with effect from March 31, 1998. According to the respondents para 4(ii) of the Scheme of 1998 has provided that an employee who had not opted for the erstwhile scheme but was covered by the Provident Funds Scheme might opt pension under the provisions of the 1998 Scheme within a period of 360 days from the appointed date and he shall be deemed to have become the member of the Scheme from the date of his exercising the option in form PA-1. However, in order to avail himself of that opportunity, para 4(ii) further states that, an employee exercising the option would 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 Funds account to the pension fund, the arrears equivalent to the amounts specified in several sub-paragraphs of para 3 along with interest from the date mentioned therein. From this the respondents have argued that there is no contribution to pension fund by the petitioner to regularize his monthly pension as well as other allied contributions to this fund allegedly claimed by the petitioner as the said fund is a contributory fund. As it was found that the petitioner’s family pension contribution had been refunded along with his provident funds as final settlement and the said pension claim was reviewed again and found to be in running condition the disbursing branch stopped the pension on and from October, 2006. The form PS-1 has two options. As it was found that the petitioner’s family pension contribution had been refunded along with his provident funds as final settlement and the said pension claim was reviewed again and found to be in running condition the disbursing branch stopped the pension on and from October, 2006. The form PS-1 has two options. Any member can either opt or not opt to join the Scheme of 1998. Besides that there is no provision in the Scheme by which any adjustment of amounts payable by the petitioner from his pension is permissible. If any member is found to be eligible for coverage under the Scheme of 1998 he has to deposit the requisite money to become eligible for the Scheme of 1998 and only then the question of payment of monthly pension arises. The respondents have taken a further point that the issue raised in the writ petition relates to a disputed question of fact as to the filling up of PS-1 form and the same issue cannot be decided in the writ jurisdiction as the same can only be decided by trial on evidence upon scrutinizing the records. The respondents have prayed for the dismissal of the writ petition. The respondents nos. 2 to 7 have also filed an affidavit-in-opposition. According to them the Scheme concerned came into force in the year 1998 and Coal Mines Family Pension has nothing to do with the Family Pension Scheme of 1971. The petitioner did not opt for the pension scheme by filing PS-1. The petitioner had superannuated from service with effect from June 1, 2001. The colliery authority cannot take any decision regarding the pension matters and the Coal Mines Provident Fund Authority is the disbursing authority. It is also the stand of the answering respondents that the colliery management cannot ascertain why the Provident Funds authority had stopped pension. When the Scheme of 1998 had come into effect all the employees were given opportunity for exercising option for becoming members of the said Scheme. It appears that the respondents nos. 8 and 9 are the relevant authorities for the present purpose. The respondents nos. 8 and 9 have argued that the petitioner had failed to appreciate the purport of the provisions contained in paragraph 4(2B) of the 1998 Scheme. It appears that the respondents nos. 8 and 9 are the relevant authorities for the present purpose. The respondents nos. 8 and 9 have argued that the petitioner had failed to appreciate the purport of the provisions contained in paragraph 4(2B) of the 1998 Scheme. Para 4(2B) of the said Scheme provides that an ex-employee who had not opted for the Coal Mines Family Pension Scheme, 1971 but was covered by the Coal Mines Provident Fund Scheme and had retired between 01.04.1994 and 31.03.1998 may opt for pension under the provisions of the 1998 Scheme within a period of 9 months from the date of the notification and shall be deemed to have become the member of the Scheme from the date of his exercising the option in form PS-1. It was further provided that he shall have to deposit the pension fund either in cash or by transfer from his Provident Fund account to the pension fund the arrears equivalent to the amounts as specified in different clauses along with interest from the 1st day of March, 1971 till the date of exercising the option in respect of arrears. The answering respondents have repeatedly maintained that the petitioner never did exercise the option in PS-1 form to become a member of the pension scheme nor did he transfer any amount from his Provident Fund account as per clause 4(2B) of the Scheme. After hearing the learned advocates for the respective parties and after going through the materials on record it cannot be disputed that the scheme of 1971 empowered the petitioner to avail himself of the pensionary benefits. This scheme had merged with the 1998 Scheme. If the petitioner was a member of the 1971 Scheme by virtue of Clause 4 of the 1998 Scheme he became a member of the new Scheme. It cannot be disputed that although contributions towards the pension had been deducted from his salary. The respondents have taken a point that in order to regularize his pension under the 1998 Scheme the petitioner will have to comply with the provisions of Clause 4(2B) of the 1998 Scheme and then have to deposit the pension fund in cash along with interest from march 1, 1971 as he had taken away the entire Provident Fund amount at the time of his retirement. They have also mentioned that the petitioner shall give an undertaking to deposit the arrears of the amounts specified in Clauses (b), (c), (d) and (e) of paragraph 3 of the 1998 Scheme in terms of paragraph 4(2). Since this is a beneficial legislation meant to advance the welfare of employees I think that the respondents should give the petitioner one more chance to do the needful so that the benefit sought for may be availed of by him. I set aside the communication dated July 23, 2010 which has been annexed to the writ petition as Annexure P-4 and direct the respondents to allow the petitioner to fill up the PS-1 form and all other necessary forms and to fulfill all other requirements in order to avail himself of the pensionary benefits. The respondents are directed to forward the requisite forms and the relevant papers within a period of four weeks from the date of communication of the order with clear cut instruction on what the petitioner will have to do to get the pensionary benefits. Upon such documents being forwarded to the petitioner if the petitioner complies with the requirements he have to do within a period of four weeks thereafter the respondents shall regularize his pension under the Scheme of 1998 as early as possible but not later than four weeks thereafter. The writ petition is thus disposed of. There shall, however, be no order as to costs.