Jharkhand High Court
Madan Prasad vs Union Of India on 31 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 662 of 2016
---
Madan Prasad ... ... Petitioner
Versus
1. Union of India, through Secretary, Ministry of Coal, New Delhi
2. Coal India Ltd., Kolkata through is Chairman
3. The Chief Manager (Personnel), Coal India Ltd., Kolkata
4. The Bharat Coking Coal Ltd, Dhanbad through its Chairman-
cum-Managing Director
5. The Director Personnel, B.C.C.L, Dhanbad
6. The Chief General Manager (Personnel), B.C.C.L., Dhanbad
7. The Chief General Manager, Western Jharia Area, B.C.C.L.,
Munidih, P.S.-Putki, District- Dhanbad
8. Officer on Special Duty, Ministry of Coal, Government of India,
Dhanbad
9. Sr. Accounts Officer, Regional Pay and Accounts Office, Ministry
of Coal, Government of India, Dhanbad
10. The Commissioner, Coal Mines Provident Fund Office, Dhanbad
.... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner : Mr. Saurabh Shekhar, Advocate
Mr. Manoj Kumar Sinha
For the Resp.- UoI : Mr. Sheo Kumar Sharma, Sr.C.G.C.
For the Resp.-BCCL : Mr. A.K. Mehta, Advocate
Mr. Amit Kumar Sinha, Advocate
For the Resp.-CMPF : Mr. Prashant Kumar Singh, Advocate
Order No. 20 Dated: 31.08.2023
The present writ petition has been filed for issuance of
direction upon the respondents to pay pension to the petitioner
w.e.f. 01.02.1998 by assessing the same @ 50% of his last drawn
basic pay with applicable dearness allowance as well as gratuity
amount assessed on full length of service i.e. 33 years 5 months
and 13 days along with compound interest @ 18% on the arrears
from the date it became due in terms with applicable rules.
2. Learned counsel for the petitioner submits that the
petitioner was originally an employee of Central Government
working under the Coal Mines Labour Welfare Organization (in short
"CMLWO") from 18.08.1964 to 30.09.1986 and after merger of
CMLWO in Coal India Limited (CIL) on 01.10.1986, he became the
employee of M/s Bharat Coking Coal Limited (BCCL). The petitioner
while working as Executive Engineer (Civil) in the office of General
Manager, Western Jharia Area, Moonidih, Dhanbad superannuated
on 31.01.1998 after attaining the age of 58 years. The petitioner
was paid gratuity amounting to Rs. 23,100/- by CMLWO, Ministry of
Coal, Government of India for the period of service rendered by him
from 18.08.1986 to 30.09.1986 whereas he was paid gratuity
amounting to Rs. 64,147/- by the BCCL for the period of service
rendered by him from 01.10.1986 to 31.01.1998 (total Rs. 87,247/-)
which was received by him under protest.
3. It is also submitted that vide office memorandum dated
25.09.1989 issued by the General Manager (P), CIL, Calcutta, the
maximum ceiling limit of gratuity was fixed as Rs.1,00,000/- which
was subsequently revised vide office memorandum dated
21.10.1997 issued by the Director (P&IR), CIL, Calcutta providing
maximum ceiling limit of gratuity from Rs.1,00,000/- to
Rs. 2,50,000/- to executive cadre employees of CIL and its
subsidiary companies. Thus, the petitioner is also entitled to be paid
the gratuity amount of Rs. 2,50,000/-.
4. It is further submitted that similarly situated persons had
filed applications before the Controlling Authority under the Payment
of Gratuity Act, 1972 (in short, "the Act, 1972") for payment of
gratuity assessed on full length of service and vide orders dated
26.05.1997 and 25.02.2000 passed by the Assistant Labour
Commissioner (Central), Dhanbad-IV and the Assistant Labour
Commissioner (Central), Dhanbad-II respectively, the respondent-
BCCL was directed to pay gratuity amount to the concerned persons
taking into consideration their full length of service and the said
orders were complied by the concerned respondent. Similar
grievances were raised by the concerned employees before the
Patna High Court (Ranchi Bench) as well as Calcutta High Court
claiming fixation of pension @ 50% of the last drawn basic pay
along with applicable D.A. and in terms with orders dated
13.09.1994 and 30.11.1998 passed by the aforesaid High Courts
respectively, pension @ 50% of last drawn basic pay was allowed
but without D.A. Thereafter, the grievance with respect to D.A. on
pension was agitated before the Hon'ble Supreme Court of India
vide S.L.P(Civil) No. 3617/2000 in which relief was extended to the
concerned employees with respect to D.A. on pension.
5. Learned counsel for the petitioner also submits that as per
letter dated 07.08.2001 issued by the Sr. Accounts Officer, Regional
Pay and Accounts Office (Coal), Dhanbad, pension of Rs. 693/- per
month w.e.f. 01.10.1986/Rs.2,117/- per month w.e.f. 01.01.1996 is
being paid to the petitioner since 01.02.1998 in place of Rs. 7,798/-
per month. The petitioner filed representations dated 12.03.2001,
03.12.2002, 21.01.2011 and 24.07.2015 before the concerned
authorities of BCCL, Ministry of Coal, Government of India as well as
before the Coal Mines Provident Fund Commissioner, Dhanbad on
the said issue along with all relevant documents, circulars and order
of the Hon'ble Supreme Court but even after more than 15 years, no
action has yet been taken by them.
6. It is also submitted that the merger clause provided under
Coal Mines Labour Welfare Fund (Repeal) Act, 1986 (in short, "the
Act, 1986") does not speak of discontinuity of service of any
employee for the purpose of payment of gratuity. Moreover, letter
dated 19.09.1974 issued by the Ministry of Labour, Government of
India as well as letter dated 11.03.1975 issued by the BCCL with
regard to calculation of gratuity payable under Act, 1972 further
clarify that interruptions of nature referred in clause-C of Section 2
of the Act, 1972 do not affect the continuity of service. The
provision of the Act, 1972 does not disentitle any employee, who
had worked under erstwhile Coal Mines Labour Welfare Organisation
and subsequently absorbed in any of the CIL subsidiaries, to receive
gratuity assessed on continuous service as there was no interruption
of service on its merger and on the basis of said statutory provision,
the services of similarly situated ex-employees of CMLWO
subsequently absorbed in CIL subsidiary have been treated to be
continuous for the purpose of payment of gratuity and the same has
been paid to the concerned employees considering their total
length of service.
7. Per contra, learned counsel for the respondent-BCCL
submits that the Parliament has enacted the Act, 1986 and upon
coming into force of the said Act, all the employees of the erstwhile
CMLWO were asked to opt from the following three options i.e., :-
(i) To opt for a retention in Central Government service
(ii) To opt for the absorption in the subsidiary of Coal
India Ltd. in company's scale of pay on its terms and
conditions of service.
(iii) To opt for absorption in the subsidiary of Coal India
Ltd. but to retain the government scale of pay as well as
the terms and conditions of service of the Central
Government.
8. It is further submitted that the petitioner opted Option No. (ii)
under which he agreed for his absorption in the subsidiary of CIL as
well as accepted the company's pay scale and its terms and
conditions of service. Thus, the petitioner became an employee of
the BCCL w.e.f 01.10.1986 and was granted pay scale as per the
terms and conditions of service of respondent-BCCL. By virtue of the
Act, 1986 and upon exercise of Option No. (ii), the employment of
the petitioner under the Central Government was terminated.
However, the Central Government paid all the retiral benefits
admissible to the petitioner including Provident Fund amount and
Death-cum-Retirement Gratuity (DCRG) considering his date of
termination as 30.09.1986.
9. It is also submitted that the pension of the petitioner for
the period of service rendered in the central government was also
fixed and he has been receiving pension from the central
government as per the applicable Central Civil Services (Pension)
Rules, 1972. The petitioner became an employee of respondent-
BCCL w.e.f. 01.10.1986 i.e. after termination of his employment by
the central government on 30.09.1986 and then he became a
member of the Coal Mines Provident Fund (CMPF) under
contributory provident fund scheme. The petitioner opted for
pension under the Coal Mines Pension Scheme (CMPS), 1998 and
after his retirement from BCCL, he has been drawing pension under
the aforesaid scheme. Moreover, he has been paid gratuity under
the provisions of the Act, 1972 for the period of service rendered by
him in BCCL commencing from 01.10.1986 till the date of his
retirement on 31.01.1998.
10. It is further submitted that the petitioner had filed a writ
petition being C.W.J.C No. 1844 of 2000 with respect to non-
payment of pension and gratuity which was disposed of on
01.03.2001 directing the petitioner to vacate the quarter allotted to
him by the B.C.C.L. by 15.04.2001 and the respondents were also
directed not to charge penal rent till 15.04.2001 but were allowed to
charge normal rent as was being charged from other employees for
such type of Quarter along with other charges like electricity, water
charges etc. The respondent-BCCL was further directed to release
Gratuity and to pay the same to the petitioner by 31.03.2001. The
Court also held that since the respondents were directed not to
charge penal rent, petitioner would also not ask for interest on
gratuity amount. The Court further observed that it would be open
to the respondent-BCCL to adjust normal rent of quarter and other
ancillary charges till 15th April 2001 from gratuity to which the
petitioner was entitled.
11. It is also submitted that the petitioner has concealed
the fact of filing of earlier writ petition and the present writ petition
has been filed after more than 15 years from the date of filing of the
previous writ petition and hence, the same is barred by the
principles of constructive res judicata. The order dated 01.03.2001
passed in C.W.J.C No. 1844 of 2000 has attained finality in the
matter relating to payment of Gratuity under the Act, 1972 as the
petitioner has already been paid the admissible amount of Gratuity.
Moreover, no contempt case was filed by the petitioner for alleged
non-payment/less payment/delayed payment of gratuity.
12. Learned counsel for the respondent no. 10 submits that
the petitioner had opted for Coal Mines Pension Scheme, 1998 by
exercising option in Form PS-2 and accordingly his pension was
fixed @ Rs. 809/- per month which was again revised @ Rs. 1244/-
per month. As per the Scheme, 1998, monthly pension of the
petitioner has been fixed keeping in view the reckonable period i.e.,
from 01.10.1986 to 31.01.1998 and average of last 10 months
notional salary. It is further submitted that the petitioner's claim for
revision of pension is not related to the Coal Mines Provident Fund
Organization, rather it is related to Central Pension Accounting
Office (CPAO), Ministry of Finance, Department of Expenditure.
13. Learned counsel for the respondent no. 8 submits that
since the petitioner had opted Option No. (ii) i.e., absorption in the
subsidiary of CIL in Company's pay scale on its terms and conditions
of service, he was paid DCR Gratuity and pension as per applicable
CCS Pension Rules for the services rendered by him in the central
government up to 30.09.1986. It is further submitted that for the
subsequent period of service rendered under the respondent- BCCL
w.e.f. 01.10.1986 till 31.01.1998, the petitioner has been paid
gratuity and is also being paid pension under CMPS, 1998. The
petitioner ought to have moved before the Controlling Authority
under the Act, 1972 i.e., the Assistant Labour Commissioner
(Central), Dhanbad before invoking the extra-ordinary writ
jurisdiction under Article 226 of the Constitution of India and as
such he may be directed to exhaust the alternative remedy available
under the said Act.
14. To counter the argument made on behalf of learned
counsel for the respondent-BCCL, learned counsel for the petitioner
submits that after passing of the order dated 01.03.2001 in C.W.J.C.
No. 1844 of 2000, the gratuity of the petitioner was assessed only
for 11 years on the basis of continuous service rendered in BCCL
after transfer (merger) from CMLWO whereas some of the similarly
situated co-employees were paid gratuity by calculating their entire
length of service when they moved the appropriate authority under
the Act, 1972. The petitioner was thus discriminated by assessing
the gratuity amount only for 11 years and the prior period of service
rendered in CMLWO was not considered as continuous service for
calculating the gratuity.
15. Heard learned counsel for the parties and perused the
materials available on record.
16. The petitioner has claimed pension w.e.f. 01.02.1998 by
assessing the same @ 50% of his last drawn basic pay with
applicable dearness allowance as well as the gratuity amount
assessed on full length of service.
17. It is evident that the petitioner had earlier filed a writ
petition being C.W.J.C No. 1844 of 2000 for payment of pension and
gratuity. The said writ petition was disposed of vide order dated
01.03.2001 with following observation: -
"The petitioner will vacate the quarter by 15th
April, 2001. The respondents in their turn will not
charge penal rent for the period upto 15th April,
2001 but will charge the normal rate as is being
charged from the other employees for such type of
quarter along with other charges, if any, like
electricity, water charges etc. The respondent
B.C.C.L. will release the gratuity and pay the same
to the petitioner by 31st March, 2001, As the
respondents have been directed not to charge the
penal rent, the petitioner will not ask for interest
on such gratuity amount.
It will be open to the respondents to adjust the
normal rent of quarter and other ancillary charge,
if any, for the period upto 15th April, 2001 from
gratuity to which the petitioner is entitled.
If the petitioner wants to claim interest on
gratuity amount, he will apply by 31st March,
2001. In such case, the respondents will pay
interest @ 10% to be calculated from the date of
retirement till the date of payment. However,
claim, in case of such claim, it will be open to the
respondents to charge penal rent for the quarter
in question for the period
the petitioner remained beyond his age of
superannuation, which they may adjust from the
gratuity. In such case, on such adjustment, if any
amount is found payable, to be paid by 15th April,
2001.
In case, the petitioner does not vacate the
quarter by 15th April, 2001, the respondents may
bring the matter to the notice of this Court for
initiating a proceeding for contempt against the
petitioner.
So far as pension is concerned, the petitioner
will produce a copy of this order before the
Commissioner, C.M.P.F., Dhanbad, who in his turn
will release the admitted pension, including
arrears within one month from the date of
receipt/production of a copy of this order.
The writ petition stands disposed of, with the
aforesaid observations/directions."
18. Pursuant to passing of the said order, the respondent-
BCCL made calculation of the amount payable towards gratuity
treating the period of service rendered by the petitioner from
01.10.1986 to 31.01.1998 and out of the total payable amount of
gratuity of Rs.64,146/-, an amount of Rs. 47,931/- was paid to the
petitioner after deducting the normal house rent of Rs.13,513/- and
electricity charges of Rs.2,702/- by way of an account payee cheque
dated 23.06.2001 which was received by him on 31.03.2001. The
petitioner has also been receiving pension from the respondent-
BCCL for the period he served under it. In addition, the petitioner
has been paid DCRG of Rs.23,100/- by the Central Government for
his services rendered for the period from 18.08.1964 to 30.09.1986
and he has also been receiving pension from the central
government under the CCS (Penson) Rules, 1972. The petitioner
after accepting the said gratuity amount as well as the pension,
remained silent for about 15 years and thereafter filed the present
writ petition claiming that he was entitled to pension and gratuity on
full length of service. He has however failed to sufficiently explain
such a huge delay in filing the present writ petition. Learned counsel
for the petitioner has given much stress on his argument that
similarly situated persons have been paid gratuity treating full length
of service and their pension have been fixed on 50% of last drawn
basic pay with appliable D.A., however the petitioner has been
denied the said benefit.
19. The Hon'ble Supreme Court in the case of PEPSU
Road Transport Corporation through its Managing Director
& Another Vs. S.K. Sharma & Others, reported in (2016) 9
SCC 206, has held as under: -
"13. In the present case admission or declaration
made by the Corporation on 30-11-1956 through
Order No. 61 that services of the respondents i.e.
of all temporary employees stood transferred to
the Corporation with effect from 16-10-1956 and
shall be governed by the new terms and
conditions as and when approved by the
Corporation was within the knowledge of the
respondents and they accepted such orders of the
Government and the Corporation from 1956 till
their retirement and even thereafter till the
enforcement of the 1992 Regulations which led to
filing of writ petition by them in 1992. Clearly the
respondents acquiesced to the entire situation and
accepted their status as employees of the
Corporation leading to admissible retiral benefits.
In such circumstances, the aforesaid judgment
cannot help the respondents. The appellant
Corporation was fully justified in raising the plea
of delay and laches. The High Court erred in
ignoring such plea when the delay was quite
unusual. We find no material to satisfactorily
explain such delay."
20. In the case of Chennai Metropolitan Water Supply &
Sewerage Board & Others Vs. T.T. Murali Babu, reported in
(2014) 4 SCC 108, the Hon'ble Supreme Court has held as under:-
"16. Thus, the doctrine of delay and laches should
not be lightly brushed aside. A writ court is
required to weigh the explanation offered and the
acceptability of the same. The court should bear in
mind that it is exercising an extraordinary and
equitable jurisdiction. As a constitutional court it
has a duty to protect the rights of the citizens but
simultaneously it is to keep itself alive to the
primary principle that when an aggrieved person,
without adequate reason, approaches the court at
his own leisure or pleasure, the court would be
under legal obligation to scrutinise whether the lis
at a belated stage should be entertained or not. Be
it noted, delay comes in the way of equity. In
certain circumstances delay and laches may not
be fatal but in most circumstances inordinate
delay would only invite disaster for the litigant
who knocks at the doors of the court. Delay
reflects inactivity and inaction on the part of a
litigant -- a litigant who has forgotten the basic
norms, namely, "procrastination is the greatest
thief of time" and second, law does not permit one
to sleep and rise like a phoenix. Delay does bring
in hazard and causes injury to the lis.
21. In the judgment rendered by the Hon'ble Supreme Court
in the case of State of Orissa & Another Vs. Mamata Mohanty
reported in (2011) 3 SCC 436, it has been held thus:-
"53. Needless to say that the Limitation Act, 1963
does not apply in writ jurisdiction. However, the
doctrine of limitation being based on public policy,
the principles enshrined therein are applicable and
writ petitions are dismissed at initial stage on the
ground of delay and laches. In a case like at hand,
getting a particular pay scale may give rise to a
recurring cause of action. In such an eventuality,
the petition may be dismissed on the ground of
delay and laches and the court may refuse to
grant relief for the initial period in case of an
unexplained and inordinate delay. In the instant
case, the respondent claimed the relief from 1-1-
1986 by filing a petition on 11-11-2005 but the
High Court for some unexplained reason granted
the relief w.e.f. 1-6-1984, though even the
Notification dated 6-10-1989 makes it applicable
w.e.f. 1-1-1986.
54. This Court has consistently rejected the
contention that a petition should be considered
ignoring the delay and laches in case the
petitioner approaches the Court after coming to
know of the relief granted by the Court in a similar
case as the same cannot furnish a proper
explanation for delay and laches. A litigant cannot
wake up from deep slumber and claim impetus
from the judgment in cases where some diligent
person had approached the Court within a
reasonable time. (See Rup Diamonds v. Union of
India [(1989) 2 SCC 356], State of
Karnataka v. S.M. Kotrayya [(1996) 6 SCC 267]
and Jagdish Lal v. State of Haryana [(1997) 6 SCC
538] .)"
22. In the case of Chairman/Managing Director Uttar
Pradesh Power Corporation Limited & Others Vs. Ram
Gopal, reported in (2021) 13 SCC 225, the Hon'ble Supreme
Court has held as under:-
"11. Whilst it is true that limitation does not
strictly apply to proceedings under Articles 32 or
226 of the Constitution, nevertheless, such rights
cannot be enforced after an unreasonable lapse of
time. Consideration of unexplained delays and
inordinate laches would always be relevant in writ
actions, and the writ courts naturally ought to be
reluctant in exercising their discretionary
jurisdiction to protect those who have slept over
wrongs and allowed illegalities to fester. Fence-
sitters cannot be allowed to barge into courts and
cry for their rights at their convenience, and
vigilant citizens ought not to be treated alike with
mere opportunists. On multiple occasions, it has
been restated that there are implicit limitations of
time within which writ remedies can be enforced.
In [S.S. Balu v. State of Kerala, (2009) 2 SCC 479],
this Court observed thus : (SCC p. 485, para 17)
"17. It is also well-settled principle of law
that "delay defeats equity". ... It is now a
trite law that where the writ petitioner
approaches the High Court after a long
delay, reliefs prayed for may be denied to
them on the ground of delay and laches
irrespective of the fact that they are
similarly situated to the other candidates
who obtain the benefit of the judgment."
(emphasis supplied)
12. Similarly, in [Vijay Kumar Kaul v. Union of
India, (2012) 7 SCC 610] this Court while
considering the claim of candidates who, despite
being higher in merit, exercised their right to
parity much after those who were though lower in
merit but were diligently agitating their rights,
this Court observed that : (SCC pp. 617-18, para
27)
"27. ... It becomes an obligation to take
into consideration the balance of justice
or injustice in entertaining the petition or
declining it on the ground of delay and
laches. It is a matter of great significance
that at one point of time equity that
existed in favour of one melts into total
insignificance and paves the path of
extinction with the passage of time."
23. The law laid down in the aforesaid cases is summarized as
under:-
(i) When an aggrieved person without any
adequate and sufficient reason moves before the
High court exercising an extraordinary and
equitable jurisdiction such court would be under
legal obligation to scrutinise whether the lis at a
belated stage should be entertained or not.
(ii) A writ petitions may be dismissed on the
ground of delay and laches. A litigant cannot wake
up from deep slumber and claim impetus from the
judgment in cases where some diligent person
had approached the Court within a reasonable
time.
(iii) Consideration of unexplained delays and
inordinate laches would always be relevant in writ
actions, and the writ courts naturally ought to be
reluctant in exercising their discretionary
jurisdiction to protect those who have slept over
wrongs and allowed illegalities to fester. Fence-
sitters cannot be allowed to barge into courts and
cry for their rights at their convenience, and
vigilant citizens ought not to be treated alike with
mere opportunists.
(iv) Where writ petitioner approaches the High
Court after a long delay, reliefs prayed for may be
denied to them on the ground of delay and laches
irrespective of the fact that they are similarly
situated to the other candidates who obtain the
benefit of the judgment.
24. In the present case, though the claim of the petitioner is
that the gratuity amount of Rs. 23,100/- paid by the central
government for rendering the service from 18.08.1964 to
30.09.1986 and the gratuity amount of Rs. 64,147/-paid by the
respondent BCCL for rendering the service from 01.10.1986 to
31.10.1998 were received by him under protest, he however failed
to challenge the payment of the said gratuity amount within a
reasonable period before the Assistant Labour Commissioner
(Central), Dhanbad i.e., the competent authority under the Act,
1972.
25. Learned counsel for the petitioner has relied upon the
order dated 26.05.1997 passed by the Assistant Labour
Commissioner (Central) Dhanbad-IV as well as the order dated
25.02.2000 passed by the Assistant Labour Commissioner (Central),
Dhanbad-II acting as Controlling Authority under the Act, 1972
whereby the gratuity of the concerned employees was directed to
be paid considering their entire length of service. Even if it is
assumed that the petitioner is a similarly situated person, no relief
can be granted to him by this Court in view of the fact that even
after passing of the said orders, the petitioner was in deep slumber
for about 15 years and has filed the present writ petition claiming
that he was entitled to gratuity amount of Rs.2,50,000/-. So far as
his claim for fixation of pension @ 50% of last drawn basic pay with
applicable D.A. is concerned, the said claim also cannot be
entertained by this Court on the ground of inordinate delay and
latches.
26. In view of the aforesaid discussion, the petitioner is not
entitled to any relief from this court under the extraordinary
equitable writ jurisdiction.
27. The writ petition is, accordingly, dismissed.
(Rajesh Shankar, J.)
Ritesh/AFR
