Jharkhand High Court

Faguni Kamin Wife Of Late Mahabir ... vs M/S Central Coalfields Limited ... on 22 March, 2021

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

                    L.P.A No. 269 of 2016
                            with

                     I.A No.3565 of 2016
Faguni Kamin wife of Late Mahabir Bhuia, resident of village-Kasiadih,
P.O. and P.S-Katkamsandi, District-Hazaribagh. ......          Appellant
                       Versus

1.M/s Central Coalfields Limited through its Chairman cum Managing
Director, having its office at P.O.-Darbhanga House, P.S-Kotwali, District-
Ranchi.
2.The Director Personnel, M/s CCL, At, P.O.-Darbhanga House, P.S-
Kotwali, District-Ranchi.
3.General Manager ( P & IR), CCL, At + P.O-Darbhanga House, P.S-
Kotwali, District-Ranchi.
4.The Chief General Manager (H), CCL, At, P.O. and P.S-Charhi, District-
Hazaribagh.
5.The Project Officer, Kedla Open Cast Project, CCL, P.O-Kedla Nagar,
P.S-Mandu, District-Hazaribagh, now Ramgarh.
6.Dy. Manager Personnel, Kedla Open Cast Project, CCL, P.O-Kedla Nagar,
P.S-Mandu, District-Hazaribagh, now Ramgarh.
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
                        ----------
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: 22nd March, 2021

1. 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.

I.A. No.3565 of 2016

2. 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.

3. Heard.

4. 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.

5. Accordingly, I.A. No.3565 of 2016 is allowed and delay of 330 days

in preferring the appeal is condoned.

L.P.A. No.269 of 2016

6. 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.

7. The brief fact of the case, which requires to be enumerated, reads as

hereunder:

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.

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.

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

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.

8. 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.

9. 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.

10. 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.

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

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.

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

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.

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.

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.

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

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.

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 respondent-

Management 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.

11. 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

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.

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.

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?

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

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:

"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.