Kailash Chandra Mukherjee Vs Ms Bharat Coking Coal Limited through Its Chairman Cum Managing Director

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S). No. 31 of 2021

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Kailash Chandra Mukherjee

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… … … Petitioner Versus

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M/s. Bharat Coking Coal Limited through its Chairman-cumManaging Director, Koyla Nagar, Saraidhela, Dhanbad.

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Chief Manager (P) MP & R, M/s. Bharat Coking Coal Limited, Koyla Nagar, Saraidhela, Dhanbad

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The General Manager (PF/Pension), M/s. Bharat Coking Coal Limited, Koyla Nagar, Saraidhela, Dhanbad.

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The General Manager, M/s. Bharat Coking Coal Limited, Koyla Nagar, Saraidhela, Dhanbad

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The Area Personnel Manager, Govindpur Area-III, M/s. Bharat Coking Coal Limited, Govindpur, Dhanbad

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… … … Respondents .

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CORAM: HON'BLE DR. JUSTICE S.N.PATHAK

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----------- For the Petitioner : Mr. Dhananjay Kumar Dubey, Advocate Mr. Akshay Kumar Mahato, Advocate For the CMPF : Mr. Prashant Kumar Singh, Advocate For the BCCL : Mr. A.K. Mehta, Advocate

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10/15.03.2024 Heard the parties.

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PRAYERS OF THE PETITIONER

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2. Petitioner has approached this Court with a prayer for a direction to the respondents to release his pension from the date of retirement from service i.e. 2016. Further prayer has been made for payment of arrears of pension with interest @10% per annum.

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FACTUAL MATRIX

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3. As per the factual matrix, petitioner was appointed prior to 22.12.1983 in Barora Area of M/s. Bharat Coking Coal Limited. The management retrenched the petitioner and other workmen leading to industrial disputes raised by the concerned Union. Reference Case No. 151 of 1989 was registered and after leading evidences etc., the Award dated 21.02.1992 was passed directing the management of M/s. BCCL to reinstate the petitioner and other workmen in service with effect from 22.12.1983 and pay them back wages. the matter was thereafter challenged upto Hon’ble Apex Court. However, the order of reinstatement was upheld. Thereafter, the management

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and the concerned Union signed a settlement on 27.06.2014 for compliance of reinstatement order passed vide Award dated 21.02.1992. In the said settlement, it has clearly been mentioned that the concerned workmen were notionally reinstated with effect from 21.02.1992. Thereafter, the petitioner was reinstated and given posting at Govindpur Area vide letter dated 05/12.07.2014, issued by the Chief Manager (P) MP & R, M/s. Bharat Coking Coal Limited. Thereafter, pursuant to letter no. 1719-1739, dated 12.05.2015, service of the petitioner was confirmed with effect from 01.02.2015 in the post of General Mazdoor Category-I. Some amount was also deducted from monthly pay of the petitioner towards contribution to pension, which is apparent from the pay slip issued by the concerned respondent. Petitioner was to retire on 30.06.2016 and as such, pursuant to the letter dated 05.02.2016, he was asked to complete formalities like submission of pension form, provident fund form, gratuity form etc. two months prior to his retirement, which was duly complied. After the retirement the amount of gratuity and provident fund was released in favour of the petitioner but pension was not started. Being aggrieved, he filed representation before the authorities but no heed has been paid and as such he has been constrained to knock door of this Court.

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SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER

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4. Mr. Dhananjay Kumar Dubey, learned counsel appearing for the petitioner assisted by Mr. Akshay Kumar Mahta, strenuously urges that petitioner is entitled for full pension and illegally and arbitrarily the same has been withheld on frivolous grounds. Learned counsel further argues that petitioner has completed ten years of service as per Clause-4 and also ready to contribute and refund the amount given to him by CMPF. Learned counsel submits that almost five years have passed which has not been explained by the respondents as to why the benefits have not been extended till date. It has further been argued that pension is the statutory right and in view of plethora of Judgments of the Hon’ble Apex Court as well as this Court and the settled preposition of law, pensionary benefits are not the bounty to be given to the employees rather it is the Constitutional right which cannot be snatched as per the whims of the respondents. Learned counsel further submits that as per terms and conditions of the Pension Rules, the petitioner is ready to pay the

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amount of Provident Fund and Gratuity. Learned counsel further submits that the Award was passed on 21.02.1992 and the settlement was made in the year 2014. It was the respondents who dragged the petitioner challenging the same before the High Court as well as the Hon’ble Apex Court. Petitioner was not responsible for the delay and laches, if any, and it was the respondents who did not allow the petitioner to work.

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SUBMISSIONS OF LEARNED COUNSEL FOR THE RESPONDENTS

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5. Per contra, counter-affidavit has been filed.

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6. Mr. A.K. Mehta, learned counsel representing BCCL opposes the contention of learned counsel for the petitioner and argues that for the purpose of pension, the pensionable service has to be counted from the actual work done by the employee i.e. in the instant case, it has to be counted from the first day of April, 1989 or the date of joining. From Annexure-2, it appears that petitioner worked only from 05.07.2014 to 03.06.2016. Since petitioner has not contributed his part, therefore, he is not entitled for pensionary benefits. Attention has been drawn to paragraphs-5 to 8 of the counter affidavit filed by the respondents – BCCL.

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7. Mr. Prashant Kumar Singh, learned counsel representing CMPF submits that the CMPF acts upon recommendation of the BCCL and adopts the arguments advanced by learned counsel appearing on behalf of BCCL. Learned counsel however submits that as and when recommendations are made, the CMPF will act upon.

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FINDINGS OF THE COURT

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8. Heard learned counsel for the parties at length.

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9. Having heard rival submission of the parties across the bar, this Court is of the considered view that admittedly petitioner was reinstated into the services in view of order passed by the Hon’ble Apex Court. The petitioner, after reinstatement, retired from the service on attaining the age of 60 years on 15.06.2016. The stand of the respondents that petitioner had rendered only two years of service, is not at all acceptable to this Court on the ground that it was the respondents who dragged the petitioner along with others to the Court and finally when Judgment was delivered in favour of the petitioner affirming the Award with a direction

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to reinstate the petitioner with effect from 22.12.1983 and pay backwages, the petitioner is entitled for the pensionary benefits. From the settlement it appears that the concerned workman were notionally reinstated with effect from 22.01.1992. In clause-4 of the settlement it has clearly been mentioned that “ the concerned awardee will be deemed to be in employment of the Company from the date of Award i.e. 22.01.1992 for all practical purposes”.

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10. On the basis of the aforesaid settlement, the Management of BCCL reinstated the petitioner and posted him in Govindpur area, which is not in dispute. Petitioner, after retirement, had submitted pension form, PF Form, Gratuity Form prior to his date of retirement. After retirement the respondents have released the amount of gratuity and provident fund but pension was not fixed and started. The stand of the respondents that he has received the amount under the heads of provident fund and gratuity, he is not entitled for pension, is not acceptable to this Court as the same is not tenable in the eyes of law.

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11. The arguments of learned counsel for the BCCL that as per Clause4 of the Industrial Dispute Central Rules 1957, the Memorandum of Settlement entered into with the petitioner in compliance of the Award passed by the CGIT-I, Dhanbad in Reference No. 151/89 i.e. Form-H, petitioner has not completed ten years’ of service and as such not entitled to pension, is not accepted. Clause-4 of the said Agreement reads as under:

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“4. The concerned awardees will be deemed to be in employment of the company from the date of the award i.e. 21.02.1992 for all practical purposes and in this connection various obligations will have to be discharged by each awardee.”

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12. It can comfortably be inferred from perusal of Clause-4 hereinabove that the petitioner has completed ten years which is requirement for pensionable service and as such he is entitled for the pension calculating the period of service rendered by him as per said Clause-4. The fact remains that petitioner has received gratuity and provident fund amount. Petitioner since has submitted entire documents regarding pension and is also agreeable to refund the amount as per requirement for pensionary benefits, the amount which he has received,

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the respondents are directed to consider the same and extend the pensionary benefits to him. It has been held and observed in plethora of Judgments by the Hon’ble Apex Court as well as this Court that retiral/ pensionary benefits are not bounty to be paid at the hands of the respondents. It is right of an employee to get retiral-cum-pensionary benefits after retirement.

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13. As a sequitur to the aforesaid rules, observations and logical sequitur, this Court direct the respondents to fix pension of the petitioner after fulfilment of the formalities as per requirements of law within a period of twelve weeks from the date of receipt/ production of a copy of this order.

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14. The writ petition stands allowed.

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(Dr. S.N. Pathak, J.)

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Kailash Chandra Mukherjee v. Ms Bharat Coking Coal Limited through Its Chairman Cum Managing Director

Case brief

What is this about?

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Kailash Chandra Mukherjee v. Ms Bharat Coking Coal Limited through Its Chairman Cum Managing Director

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

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Procedural history

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