Pensionable Service To Be Counted From Date Of Reinstatement Of Employee Irrespective Of Whether He Worked Or Not: Jharkhand High Court

The Jharkhand High Court has held that pensionable service will be counted from the date of reinstatement of the employee, irrespective of whether he started working from that day onwards or not.

The Court was considering an Appeal against the judgment whereby the Writ Petition filed by the Respondents was allowed and the Appellants were asked to fix the pension of the Respondent No.1.

The Division Bench of Chief Justice MS Ramachandra Rao and Justice Rajesh Shankar observed, "......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 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."

The Appellant was represented by Advocate Anoop Kumar Mehta, while the Respondent was represented by Advocate Saibal Mitra.

Facts of the Case

The Respondent No. 1 was appointed in Barora Area of M/s BCCL, however, he along with other workmen were retrenched with effect from December 19, 1983 which led to raising of an industrial dispute by the sponsoring Union. The Central Government Industrial Tribunal eventually directed the management of BCCL to reinstate the Respondent No. 1 and other workmen in service with effect from December 22, 1983 and pay them back wages. The award of reinstatement passed by the CGIT was upheld by the Supreme Court of India.

The management of BCCL entered into a settlement with the concerned Union and accordingly M/s BCCL reinstated the Respondent No. 1 with effect from the date ofaward dated February 21, 1992. The service of Respondent No. 1 was confirmed with effect from February 01, 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.

The Respondent No. 1 retired from service on June 30, 2016 and he was paid Gratuity and Provident Fund amount, however Pension was not paid to him. The Respondent No. 1 filed Writ Petition 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 which was allowed.

Counsel for the Appellants 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.

It was 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 ₹44,350/- and was paid to him in the month of December, 2016 itself.

Reasoning By Court

The Court, at the outset, rejected the contention of the Counsel for the Appellant and held that pensionable service will be counted from the date of reinstatement of the employee irrespective of the fact that he started working from that day onwards or not.

So far as non-deposit of the contribution towards pension was concerned, the Court observed that it was due to the own fault of the Appellants, the Respondent No.1 could not complete ten years of pensionable service.

"......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," the Court observed.

It thus stressed that 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, they cannot be allowed to take benefit of their own fault.

The Appeal was accordingly dismissed.

Cause Title: M/s. Bharat Coking Coal Ltd. vs. Kailash Chandra Mukherjee (2025:JHHC:12675-DB)

Appearances:

Appellant- Advocate Anoop Kumar Mehta

Respondent- Advocate Saibal Mitra, Advocate Prashant Kumar Singh

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