Jharkhand High Court
M/S. Bharat Coking Coal Ltd vs Kailash Chandra Mukherjee on 29 April, 2025
Author: Rajesh Shankar
Bench: Rajesh Shankar
2025:JHHC:12675-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.362 of 2024
With
I.A No. 5827 of 2024
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1. M/s. Bharat Coking Coal Ltd., through its Chairman-cum-
Managing Director, having its office at Koyla Nagar, P.O.
Koyla Nagar, P.S. Saraidhela, District Dhanbad.
2. Chief Manager (P) MP R, M/s. Bharat Coking Coal Limited,
Koyla Nagar, P.O. Koyla Nagar, P.S. Saraidhela, District
Dhanbad.
3. The General Manager (PF/Pension), M/s. Bharat Coking Coal
Limited, Koyla Nagar, P.O. Koyla Nagar, P.S. Saraidhela,
District Dhanbad.
4. The General Manager, M/s. Bharat Coking Coal Limited, Koyla
Nagar, P.O. Koyla Nagar, P.S. Saraidhela, District Dhanbad.
5. The Area Personnel Manager, Govindpur Area-III, M/s. Bharat
Coking Coal Limited, P.O. & P.S. Govindpur, District Dhanbad.
.......... Appellants.
-Versus-
1. Kailash Chandra Mukherjee, S/o Late Lakhan Chandra
Mukherjee, village Nabagram, P.O. Nildih, P.S. Raghunathpur,
District Purulia (West Bengal).
2. Coal Mines Provident Fund, through its Regional Director,
Regional Office D-II, office at Hirapur, P.O. & P.S. Dhanbad,
District Dhanbad.
.......... Respondents.
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Appellants : Mr. Anoop Kumar Mehta, Advocate
For Res. No.1 : Mr. Saibal Mitra, Advocate
For Res. No.2 : Mr. Prashant Kumar Singh, Advocate
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Reserved on 17.04.2025 Pronounced on 29.04.2025
Per: Rajesh Shankar, J.
1. The present appeal is directed against the judgment dated
15.03.2024 passed in W.P.(S) No. 31 of 2021 whereby the
learned Single Judge of this court has allowed the writ petition
filed by the petitioner/respondent no.1 and has directed the
respondents/appellants to fix the pension of the respondent no.
1 after fulfilment of the formalities as per requirements of law.
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2. The factual background of the case is that the respondent no. 1
was appointed in Barora Area of M/s BCCL, however, he along
with other workmen were retrenched with effect from 19.12.1983
which led to raising of an industrial dispute by the sponsoring
Union. Subsequently, the said dispute was referred to the Central
Government Industrial Tribunal No.1, Dhanbad (in short CGIT-1)
which was registered as Ref No. 151 of 1989. The Reference was
answered by the Tribunal vide its Award dated 21.02.1992
directing the management of BCCL to reinstate the respondent
no. 1 and other workmen in service with effect from 22.12.1983
and pay them back wages.
3. The award of reinstatement passed by the learned CGIT was
upheld up to the Hon'ble Supreme Court of India. The
management of BCCL entered into a settlement with the
concerned Union representing the respondent no.1 and other
workmen on 27.06.2014 to comply the award of
reinstatement dated 21.02.1992 passed by the CGIT
No.1, Dhanbad in Ref. No. 151 of 1989 and thereafter M/s BCCL
reinstated the respondent no. 1 with effect from the date of
award dated 21.02.1992. The service of respondent no. 1 was
confirmed with effect from 01.02.2015 on the post of General
Mazdoor (Surface) Category-1 and as per the pension
scheme, the appellants deducted some amount from the monthly
salary of the respondent no.1 towards contribution of pension.
4. The respondent no. 1 retired from service on 30.06.2016 and he
was paid Gratuity and Provident Fund amount, however Pension
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was not paid to him. The respondent no. 1 filed writ petition being
W.P.(S) No. 31 of 2021 with a prayer to release his pension from
the date of retirement from service as well as for payment of
arrear of pension with interest @ 10% per annum. The said writ
petition has been allowed by the learned Single Judge vide
impugned order dated 15.03.2024 observing that the petitioner
had completed ten years of service which was the requirement of
pensionable service and as such he is entitled to pension
calculating the period of service rendered by him with effect from
21.02.1992 as per Clause 4 of the Settlement dated 27.06.2014.
5. The learned counsel for the appellants has assailed the impugned
order primarily on the ground that on combined reading of Para
2(o) and Para 2(q) of the Coal Mines Pension Scheme, 1998 it
would be evident that for entitlement of pension, an employee
has to render actual service for 10 years as well as he is required
to pay at least 120 months of contribution towards pension under
the Scheme 1998, however, admittedly the respondent no. 1 has
neither rendered actual service of 10 years nor the contribution
towards pension has been deducted from his monthly pay slip for
a period of 120 months. As such, he is not entitled to pension
under CMPS, 1998. It is further submitted that one time pension
has been computed under para 10(4) of the CMPS 1998 and the
amount of contribution payable to the respondent no.1 by way of
return was determined as Rs. 44,350/- and was paid to him in
the month of December, 2016 itself.
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6. The learned counsel for the CMPFO submits that CMPFO acts
upon the recommendation of the BCCL and will take steps as soon
as the recommendation is made.
7. The learned counsel for the respondent no. 1 submits that as per
Para 4 of the settlement arrived at between the Management of
BCCL and the concerned Union on 27.06.2014, the concerned
workmen were notionally reinstated w.e.f. 21.02.1992 and
therefore his pensionable service should be counted from the said
date itself. It is further submitted that certain amount has also
been deducted from the salary of the respondent no. 1 for
contribution towards pension.
8. Heard the learned counsel for the parties and perused the
materials placed on record.
9. Thrust of the argument of the learned counsel for the appellants
is that the respondent no. 1 was given appointment on
12.07.2014 in compliance of the award passed by the learned
CGIT-1 which was affirmed up to the Hon'ble Supreme Court and
he retired from service on 30.06.2016 without completing 10
years of pensionable service and as such the claim of the
respondent no. 1 for payment of pension is not tenable.
10. We do not find any substance in the contention of the learned
counsel for the appellants. If the appointment of the petitioner is
treated from 12.07.2014, the same would be gross violation of
the award passed by the CGIT-1 as it was not for fresh
appointment, rather was for reinstatement which would mean
that the respondent no. 1 was to be treated in service since the
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date of his initial appointment. Thus, if the fiction created by the
award of reinstatement passed by the learned CGIT-1 is taken to
its logical conclusion, the respondent no.1 would be treated to
have been in service since the date of his initial appointment
irrespective of the fact that he did not work from the date of
retrenchment till 11.07.2014. Thus, completion of ten years of
pensionable service, which is a condition precedent under the
CMPS, 1998 for entitlement of pension, does not come in the way
of the claim of the respondent no. 1.
11. So far as non-deposit of the contribution towards pension is
concerned, the award was passed on 21.02.1992 directing the
management to reinstate the respondent no. 1 and other
retrenched workmen in service w.e.f. 22.12.1983, however the
management complied the said award only on 12.07.2014 by
permitting the respondent no.1 to join the post of General
Mazdoor (Surface) Category-I. Thus, due to the own fault of the
appellants, the respondent no.1 could not complete ten years of
pensionable service. There is a well-known maxim "commodum
ex injuria sua nemo habere debet" which means that no one
should get benefit of its own wrongdoing.
12. In the present case, since the appellants themselves were at fault
in not permitting the respondent no. 1 to join within a reasonable
period after passing of the award dated 21.2.1992, they cannot
be allowed to take benefit of their own fault. The respondent no.
1 could not work for the qualifying period only because he was
not allowed to work by the appellants. If he had been allowed to
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work, the requirement of 120 months of contribution towards
pension would have also been fulfilled. Moreover, on perusal of
the impugned order passed in W.P.(S) No. 31 of 2021, it would
be evident that the respondent no. 1 is ready to deposit his
contribution as well as the amount paid to him as one time
pension. As such, the said contention of the appellants also does
not survive.
13. In view of the discussions made hereinabove, we do not find any
infirmity in the order passed by the learned Single Judge in
directing the appellants to fix pension of the respondent no. 1,
however, the direction issued to the management of BCCL to
consider the claim of the respondent no. 1 regarding refund of
the received amount by him as per requirement so as to extend
the pensionary benefits appears to be needless. Once it was held
that the respondent no.1 was entitled to be paid the pension,
there was no need to direct the appellants to consider the claim
of the petitioner which otherwise will be an empty formality as
the respondent no.1 will merely knock his head against the
impenetrable wall of prejudged opinion of the appellants.
14. Hence, the respondent no.1 is directed to deposit his contribution
towards pension for qualifying period along with the amount of
Rs. 44,350/- paid to him under para 10(4) of the CMPS 1998 with
the appellants within four weeks from the date of passing of this
order and on receipt of the same the appellants shall forward it
along with their contribution to CMPFO. The CMPFO shall
thereafter fix and pay pension along with the arrears to the
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respondent no.1 within one month from the date of receipt of the
said contribution.
15. The present appeal is dismissed with the aforesaid directions and
observations.
16. I.A No. 5827 of 2024 is also dismissed accordingly.
(M.S. Ramachandra Rao, C.J.)
(Rajesh Shankar, J.)
A.F.R.
Sanjay/
