Employee must exercise option to join pension scheme; failure disqualifies entitlement to benefits.

JUDGMENT :

SMITA DAS DE, J.

1. The intra-court appeal assails the Order dated June 16, 2022 passed by the Learned Single Judge in WPA No. 23725 of 2012 whereby the writ petition filed under Article 226 of the Constitution of India was dismissed.

2. Draped in brevity, the necessary facts for adjudication of this matter are that the petitioner qua ‘Mining Sardar’ being the appellant was appointed in Amritnagar Colliery under Eastern Coalfields Ltd. (hereinafter referred to as the said colliery) on September 19, 1967 during the operation of Coalmines Provident Fund Schemes Act, 1948 (hereinafter referred to as the Scheme of 1948). The appellant herein served a long uninterrupted period of 38 years and was subsequently superannuated on January 1, 2007. On March 1, 1971, the Ministry of Labour Employment and Rehabilitation introduced a Notification introducing a scheme named as “Coalmines Pension Scheme.” Thereafter on September 22, 2006 a Memorandum was issued by the Personnel Officer of the said colliery intimating thereby to the appellant that the appellants pension and provident fund shall be settled as per 1971 Circular as the appellant was on the verge of retirement i.e. with effect from January 1,2007. The notice of superannuation was accordingly issued by the respondent authorities on November 13, 2006. The appellant’s grievance is that despite being superannuated in terms of the notice issued by the respondent authorities he was never paid his legitimate claim of pension inspite of submitting all the relevant papers to the authorities concerned. The payment of the pension was accordingly refused without assigning any reason by the respondent authorities which was the subject matter of challenge before the Learned Trial Judge.

3. It is apposite to mention that the appellant as per the Memo dated November 13, 2006 made an application for payment of gratuity in Form-I along with filled up form for withdrawing the ‘CMPF’ and ‘pension’ as per Rules. After retirement the appellant duly received his provident fund dues and all other retirement dues except pension.

4. The Learned Judge was pleased to dismiss the Writ Petition holding inter alia, that since the appellant did not exercise the option for the pension thus the appellant is not entitled to have the pension, rather, whatever amount has been contributed was returned to the appellant and which became the subject matter of challenge in the instant appeal.

Appellant’s contention

5. The Learned counsel appearing for the appellant submits that there was an admission on the part of the employer Coal India Ltd., being the respondent no 2 herein that the contribution of the appellant as an employee by way of pension was deducted entitling the appellant to be eligible for receiving the family pension for his service tenure i.e. from 1967 to 2007. The contribution deducted from the appellant by way of pension fund was also not refunded or returned to the appellant and the same is still lying with the employer. Therefore it amply shows that the appellant is eligible to claim the family pension. By placing reliance upon Clauses 3 and 4 of the Notification issued by the Ministry of Labour, Employment and Rehabilitation dated 1st March, 1971 in exercise of the power conferred by Section 3(E) of the Coal Mines Provident Fund family Pension and Bonus Scheme Act , 1948 (hereinafter referred to as the 1948 scheme), the appellant submitted that the class of