Dismissed

Faguni Kamin v. Ms Central Coalfields Limited through Its Chairman Cum Managing Director and Ors.

Jharkhand HC22 Mar 2021LPA/269/2016

Case brief

AI extract

What is this about?

This judgment disposed of an intra-court appeal (L.P.A.) and an accompanying application to condone a 330-day delay. The High Court held that the appeal was an attempt to misuse judicial proceedings. This decided that the appellant should have appealed immediately after the impugned order, rather than filing a new writ that was withdrawn. Thus, the appeal was dismissed. The condonation application

What did the court decide?

The interlocutory application for condonation of delay is allowed. The Letters Patent Appeal is dismissed. A refund claim for deducted amounts must be approached as per the original lower order.

Faguni Kamin Vs Ms Central Coalfields… — Pension and Retirement Benefits | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A No. 269 of 2016

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with

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I.A No.3565 of 2016

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Faguni Kamin wife of Late Mahabir Bhuia, resident of village-Kasiadih, P.O. and P.S-Katkamsandi, District-Hazaribagh. …… Appellant

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Versus

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1.M/s Central Coalfields Limited through its Chairman cum Managing Director, having its office at P.O.-Darbhanga House, P.S-Kotwali, DistrictRanchi.

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2.The Director Personnel, M/s CCL, At, P.O.-Darbhanga House, P.SKotwali, District-Ranchi.

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3.General Manager ( P & IR), CCL, At + P.O-Darbhanga House, P.SKotwali, District-Ranchi.

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4.The Chief General Manager (H), CCL, At, P.O. and P.S-Charhi, DistrictHazaribagh.

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5.The Project Officer, Kedla Open Cast Project, CCL, P.O-Kedla Nagar, P.S-Mandu, District-Hazaribagh, now Ramgarh.

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6.Dy. Manager Personnel, Kedla Open Cast Project, CCL, P.O-Kedla Nagar, P.S-Mandu, District-Hazaribagh, now Ramgarh.

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7.The Regional Commissioner, CMPF Region-II, resident of Shukla Colony, P.O-Hinoo, P.S-Doranda, District-Ranchi. …… …. Respondents

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CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Nand Kishore Prasad Sinha, Advocate For the Respondent Nos.1 to 6 : Mr. Amit Kumar Das, Advocate For the Respondent No.7 : Ms. Preity Sinha, Advocate

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Oral Judgment: Order No.13/Dated: 22^nd March, 2021

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With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.

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I.A. No.3565 of 2016

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This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 330 days in preferring this Letters Patent Appeal.

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Heard.

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In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation.

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Accordingly, I.A. No.3565 of 2016 is allowed and delay of 330 days in preferring the appeal is condoned.

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L.P.A. No.269 of 2016

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The instant appeal under Clause 10 of the letters patent of the Patna High Court, is directed against the order/judgment dated 18.06.2015 passed by learned Single Judge of this Court in W.P.(S) No.273 of 2013 whereby and whereunder the prayer sought for by the writ petitioner, pertaining to claim of pension with effect from 10.06.1996 and pension of the husband of the writ petitioner from 18.06.1994 and thereafter family pension to the petitioner from 27.03.2006 i.e. the date on which her husband died, has been disposed of by learned Single Judge holding therein that the writ petitioner is not entitled to pension under CMPS 1998. But so far as the amount deducted as indicated in the order impugned is concerned, it is left open for the petitioner to approach the respondent no.5, Project Officer, Kedla Open Cast Project, CCL, Mandu, Ramgarh for refund of the same in accordance with law.

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The brief fact of the case, which requires to be enumerated, reads as hereunder:

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The writ petitioner retired from service with effect from 10.06.1996 while working under the respondent-Central Coalfield Limited. Her husband was also an employee who died in on 27.03.2006. It is the case of the writ petitioner that as per the Coal Mines Pension Scheme, 1998 having its effect from 01.04.1994 under which both husband of the writ petitioner as also the writ petitioner are entitled for pension. The husband as also the writ petitioner filled up P.S-6 Form but no relief was extended for pension under the aforesaid scheme and in the meanwhile, her husband died on 27.03.2006. The writ petitioner also filed an application for her own pension as well as pension of her husband to be paid from 18.06.1994 to 26.03.2006 and thereafter family pension but even after repeated representation in this regard the same has not been extended in her favour and hence a writ petition was filed being W.P.(S) No.6956 of 2011 which was disposed of vide order dated 10.02.2012 with a direction upon the respondents to treat the writ petition as representation and to pass an appropriate order in accordance with law.

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The respondent authorities passed an order only when a contempt case was filed being Contempt Case (C) No.667 of 2012 holding therein that neither the writ petitioner nor her deceased husband are entitled for pension as also the family pension.

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The writ petitioner has again came to this Court under its writ jurisdiction by filing writ petition under Article 226 of the Constitution of India, raising the same grievance vide W.P.(S) No.273 of 2013 which has

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been disposed of vide order dated 18.06.2015 by which the claim of the pension has been negated, however, for refund of the amount, the respondent authorities have been directed to take decision in accordance with law, which is the subject matter of the intra-court appeal.

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Mr. Nand Kishore Prasad Sinha, learned counsel for the petitioner has submitted that the learned Single Judge has not appreciated the fact in holding that the writ petitioner as also the deceased husband of the writ petitioner are entitled for pension as well as family pension rather while disposing of the writ petition the respondent no.5, the Project Officer, Kedla Open Cast project, CCL has been directed to take decision for refund of the amount in accordance with law and therefore, the order passed by the learned Single Judge is not sustainable in the eye of law and therefore, the same is fit to be dismissed.

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While on the other hand, Mr. Amit Kumar Das, learned counsel for the respondents-Central Coalfields Limited has submitted that the instant appeal is fit to be dismissed merely on the ground that the writ petition being W.P.(S) No.6062 of 2015 has been withdrawn on the submission that the grievance of the writ petitioner has already been redressed and as such, the writ petitioner ought not to have preferred an appeal.

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We have heard learned counsel for the parties, perused the document available on record as also the finding recorded by the learned Single Judge in the impugned order.

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The fact is not in dispute in this case that the writ petitioner had filed writ petition being W.P.(S) No.6956 of 2011 for direction for payment of

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pension and family pension which was disposed of vide order dated 10.02.2012 directing the respondent no.3 to treat the writ petition as representation and decide the matter in accordance with law within stipulated period, after giving adequate opportunity of hearing to the petitioner or her representative. Respondent no.3 was further directed to send the necessary papers to Regional CMPF Commissioner’s office for fixation of pension of the writ petitioner within one week after decision is taken, and the actual payment will be made within a period of four weeks thereafter. The order passed vide order dated 10.02.2012 in W.P.(S) No.6956 of 2011 since was not complied with, therefore, the writ petitioner filed a contempt case being Contempt Case (C) No.667 of 2012. But after filing of the contempt petition, the representation filed by the writ petitioner in terms of order dated 10.02.2012 passed in W.P.(S) No.6956 of 2011 was decided on 16.06.2012 by rejecting the claim of the writ petitioner for disbursement of family pension benefits/claims and accordingly, the aforesaid contempt was dismissed vide order dated 04.01.2013 with liberty to the petitioner to challenge the aforesaid order dated 16.06.2012 passed by the authority in accordance with law before the appropriate forum.

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The writ petitioner being aggrieved with the order dated 16.06.2012 has again preferred writ petition being W.P.(S) No.273 of 2012 for quashing of the letter dated 16.06.2012 and for a direction upon the respondents to provide pension in favour of the writ petitioner with effect from 10.06.1996 and pension of her husband from 18.06.1994 and thereafter family pension in favour of the writ petitioner with effect from 27.03.2006, the date when her husband died. The plea was taken by the writ petitioner before the writ

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Court that the writ petitioner and her husband was a member of family pension scheme and have filled up P.S-2 to P.S-4 Form as per CMPS 1998 as well as the 2% and one special increment has been deducted from their wages since 01.04.1989 till the date of retirement but the respondents have returned only P.S-3 and P.S-4 Form of the petitioner and her husband.

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The respondents-CCL has filed counter affidavit, inter alia stating therein that the writ petitioner and her husband has not filled up P.S-2 Form as required under CMPS 1998 scheme, requiring the employees who have retired in between 01.04.1994 to 31.03.1998 and therefore, the writ petitioner or her husband are not entitled for pension under CMPS scheme. It has further been indicated that 2% pension deducted from salary may be refunded as per the provision of CMPS scheme.

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The writ Court taking into consideration the rival submission advanced on behalf of the parties has disposed of the writ petition vide order dated 18.06.2015 holding therein that the writ petitioner and her husband may not be entitled to pension under CMPS 1998 scheme. However, with a liberty to the writ petitioner to approach before the respondent no.5 for refund of the amount which was deducted as indicated in the reasoned order dated 16.06.2012.

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The writ petitioner thereafter, has filed third writ petition being W.P.(S) No.6062 of 2015 praying therein for direction upon the respondents as to why the respondents may not be directed to verify the deducted amount of CMFPS of employee, employer share and pension amount of the petitioner and her husband with compound interest as per Section 19 of

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CMFPS 1991 and Section 19 of CMPS 1998. But the aforesaid writ petition being W.P.(S) No.6062 of 2015 has been withdrawn by the writ petitioner on the submission that the grievances of the writ petitioner have already been redressed and as such, she does not want to prosecute the case and seeks permission to withdraw the writ petition.

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The writ petitioner, thereafter, has filed the instant intra-court appeal against the order passed by the writ Court dated 18.06.2015 passed in W.P.(S) No.273 of 2013 on the ground that the learned Single Judge has not appreciated the fact that the appellant-writ petitioner and her husband have been the members of the family pension scheme and thus entitled for the CMPS 1998 but no such consideration has been made. The respondentManagement has contested the case by opposing the prayer by filing counter affidavit wherein it has been stated that since the writ petitioner has already withdrawn the writ petition being W.P.(S) No.6062 of 2015, therefore, he ought not to have preferred the instant appeal.

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This Court, after going across the admitted fact has found therefrom that the writ petition being W.P.(S) No.273 of 2013 which is the subject matter of the present intra-court appeal has been disposed of vide order dated 18.06.2015 holding therein that the writ petitioner and her husband may not be entitled to pension under CMPS 1998 but granted liberty to the petitioner to approach the respondent no.5 for refund of the amount which was deducted. Such order has been passed on the basis of the fact that the writ petitioner is not entitled for the CMPS scheme on the ground that the CMPS 1998 stipulates to extend benefits of pension in favour of such employee

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who retired in between 01.04.1994 to 31.03.1998 but the husband of the writ petitioner has not filled up the P.S-2 Form as required under the CMPS 1998, who retired in between 01.04.1994 to 31.03.1998 and as such held by the learned Single Judge while disposing of the writ petition being W.P.(S) No.273 of 2013 that the writ petitioner and her husband are not entitled for the pension under the CMPS 1998.

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Further the writ petitioner has again filed a writ petition being W.P.(S) No.6062 of 2015 seeking therein prayer to extend the pension under the CMPS scheme but very surprisingly the aforesaid writ petition has been withdrawn by the writ petitioner on the ground that grievance of the petitioner has already been redressed and as such, the writ petitioner does not want to prosecute the case. The another learned Single Judge of this Court in W.P.(S) No.6062 of 2015 has allowed such prayer vide order dated 14.03.2016 by dismissing the writ petition as withdrawn.

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The question is, once the writ petition being W.P.(S) No.6062 of 2015 has been withdrawn on the pretext that the grievance raised by the writ petitioner has already been redressed, whether the filing of the instant appeal by the writ petitioner can be said to be justified?

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The answer of this Court would be in negative as the writ petition being W.P.(S) No.273 of 2013 was disposed of vide order dated 18.06.2015 holding therein that the writ petitioner and her husband may not be entitled to pension under the CMPS 1998 but with a liberty to the petitioner to approach the respondent no.5 for refund of the amount as

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indicated in the reasoned order. The relevant paragraph of the order passed in W.P.(S) No.273 of 2013 is extracted herein as under:

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“In such circumstances, though the petitioner and her husband may not be entitled to pension under the CMPS 1998 but so far as the amount deducted, it is open for the petitioner to approach the respondent no.5, Project Officer, Kedla Open Cast Project, CCL, Mandu, Ramgarh for refund of the same in accordance with law.

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The writ petition is disposed of accordingly.”

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Thereafter, the writ petitioner has again filed a writ petition being W.P.(S) No.6062 of 2015, instead of challenging the order dated 18.06.2015 passed by this Court in W.P.(S) No.273 of 2013, which writ petition has been withdrawn by the writ petitioner. It is only after dismissal of the writ petition being W.P.(S) No.6062 of 2015, the present intra-court appeal has been filed on 15.06.2016 and therefore, according to our considered view, once the writ petition being W.P.(S) No.273 of 2013, which was disposed of vide order dated 18.06.2015, the writ petitioner ought to have challenge the order passed therein by filing an appeal. But, instead of filing intra-court appeal a fresh writ petition being W.P.(S) No.6062 of 2015 was filed which has been dismissed as withdrawn vide order dated 14.03.2016 and only thereafter the present intra-court appeal has been filed.

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Once the writ petition has been withdrawn on the pretext that the grievance of the petitioner has been redressed and as such petitioner has withdrawn the writ petition, the intra-court appeal against order passed in writ petition being W.P.(S) No.273 of 2013 cannot have a justification as,

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once the writ petitioner has withdrawn the writ petition on the pretext that the grievance of the writ petitioner has already been redressed there would be no question of filing an intra-court appeal against the another order passed by the learned Single Judge in W.P.(S) No.273 of 2013.

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Accordingly, in our considered view, the instant intra-court appeal is nothing but sheer misuse of the judicial proceeding. Accordingly, the instant appeal fails and is fit to be dismissed.

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In the result, the instant appeal is dismissed.

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(Dr. Ravi Ranjan, C.J.)

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(Sujit Narayan Prasad, J.)

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Saket/-

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N.A.F.R.

Faguni Kamin v. Ms Central Coalfields Limited through Its Chairman Cum Managing Director and Ors.

Case brief

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Faguni Kamin v. Ms Central Coalfields Limited through Its Chairman Cum Managing Director and Ors.

Case brief

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