Delay In Reinstatement After Tribunal Award, Employer Can't Deny Pension For The Delayed Period : Jharkhand Hc

The Jharkhand High Court bench comprising of Justice Rajesh Shankar, while deciding an appeal held that an employer cannot deny pension benefits on the ground of insufficient service period or contribution if the delay in reinstatement following a tribunal award was due to the employer's own fault. Background Facts The respondent was appointed in Barora Area of M/s BCCL (Appellant). 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 dispute was referred to the Central Government Industrial Tribunal (CGIT). The Tribunal directed the management of BCCL to reinstate the respondent and other workmen in service with effect from 22.12.1983 and pay them back wages. The management of BCCL entered into a settlement with the Union representing the respondent and other workmen to comply the award of reinstatement passed by the CGIT. Thereafter M/s BCCL agreed to reinstate the respondent with effect from the date of award dated 21.02.1992. However, the service of respondent 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 towards contribution of pension. The respondent retired from service on 30.06.2016 and he was paid Gratuity and Provident Fund amount, however Pension was not paid to him. The respondent filed writ petition to release his pension from the date of retirement from service as well as for payment of arrear of pension. The writ petition was allowed by the Single Judge observing that the petitioner had completed ten years of service which was the requirement of pensionable service. Therefore, he was 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. Aggrieved by the same, the appellants filed an appeal against the single judge order. It was contended by the appellants 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 CMPS, 1998. However, the respondent had neither rendered actual service of 10 years nor the contribution towards pension had been deducted from his monthly pay slip for a period of 120 months. Therefore, he was not entitled to pension under CMPS, 1998. It was further submitted that one time pension was computed under para 10(4) of the CMPS 1998 and the amount of contribution payable to the respondent was paid to him. On the other hand it was contended by the respondent that as per Para 4 of the settlement arrived at between the Management of BCCL and the concerned Union on 27.06.2014, the workmen were notionally reinstated w.e.f. 21.02.1992 and therefore his pensionable service should be counted from this date itself. It was further submitted that certain amount had also been deducted from the salary of the respondent for contribution towards pension. Findings of the Court It was observed by the court that if the appointment of the petitioner is treated from 12.07.2014, it would be gross violation of the award passed by the CGIT as it was not for fresh appointment, rather was for reinstatement i.e. the respondent was to be treated in service since the date of his initial appointment. It was further observed that as per the award of reinstatement passed by the CGIT, the respondent 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, the respondent completed ten years of pensionable service, for entitlement of pension. It was further observed by the court that the award was passed on 21.02.1992 directing the management to reinstate the respondent in service w.e.f. 22.12.1983, however the management complied the said award only on 12.07.2014 by permitting the respondent to join the post of General Mazdoor (Surface) Category-I. Thus, due to the own fault of the appellants, the respondent could not complete ten years of pensionable service. It was held by the court that since the appellants themselves were at fault in not permitting the respondent 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 could not work for the qualifying period because he was not allowed to work by the appellants. It was further held that if respondent had been allowed to work, the requirement of 120 months of contribution towards pension would have also been fulfilled. The court did not find any error in the order passed by the Single Judge in directing the appellants to fix pension of the...

Delay In Reinstatement After Tribunal Award, Employer Can't Deny Pension For The Delayed Period : Jharkhand Hc

Namdev Singh

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