National Consumer Disputes Redressal
Regional Commissioner, Cmpf, Dhanbad vs Anant Sethi on 13 March, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3036 OF 2012 (From the order dated 18.05.2012 in First Appeal No. 404/2009 of Jharkhand State Consumer Disputes Redressal Commission) The Regional Commissioner, CMPF, D-III Dhanbad, P.O. CMPF Office, Distt. Dhanbad, Jharkhand ... Petitioner Versus Anant Sethi, s/o Late Basudeo Tewari r/o at Sudamdih, P.O. & P.S. Sudamdih Distt. Dhanbad, Jharkhand Respondent
REVISION PETITION NO. 4370 OF 2012 (From the order dated 18.05.2012 in First Appeal No. 404/2009 of Jharkhand State Consumer Disputes Redressal Commission) The Project Officer, Bhowra (N) Colliery under E.J. Area of M/s BCCL P.O. Bhowra, District Dhanbad Jharkhand ... Petitioner Versus
1. Anant Sethi, s/o Late Basudeo Tewari r/o at Sudamdih Main Colony, P.O. Sudamdih Distt. Dhanbad, Jharkhand
2. The Regional Commissioner CMPF, Dhanbad, D.III having office at Jagjiwan Nagar, Dhanbad.
Respondent BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS In RP-3036/2012 For the Petitioner :
Mr. Mohit Kumar Shah, Advocate Ms. Shilpi Shah, Advocate For the Respondent :
Mr. Babban Lal, Senior Advocate with Mr. Apurb Lal, Advocate Ms. Susmita, Advocate In RP-4370/2012 For the Petitioner :
Mr. Vivek Narayan Sharma, Advocate For the Respondent No. 1 : Mr. Babban Lal, Senior Advocate with Mr. Apurb Lal, Advocate Ms. Susmita, Advocate For the Respondent No. 2 : Mr. Mohit Kumar Shah, Advocate Ms. Shilpi Shah, Advocate PRONOUNCED ON : 13th MARCH 2014 O R D E R PER DR. B.C. GUPTA, MEMBER These two revision petitions, i.e., RP No. 3036/2012, Regional Commissioner, CMPF Dhanbad versus Anant Sethi, and RP No. 4370/2012, The Project Officer versus Anant Sethi & Anr. have been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 18.05.2012, passed by the Jharkhand State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. 404/2009 Anant Sethi versus The Regional Commissioner CMPF Dhanbad & Ors. vide which while allowing the appeal, the order dated 30.11.2009, passed by District Consumer Disputes Redressal Forum, Dhanbad in consumer complaint no. 48/2009, dismissing the complaint in question was set aside. This single order shall dispose off the two revision petitions and a copy of the same may be placed on each file.
2. Brief facts of the case are that complainant/respondent Anant Sethi is a retired employee of M/s Bharat Cooking Coal Limited (BCCL), Bhowra (North) Colliery of E.J. area, Bhowra. He was a member of Coal Mines Provident Fund (CMPF) having CMPF account no. C/382840 and was also a member of Coal Mines Pension Scheme. The complainant was initially appointed in National Coal Development Corporation (NCDC) on 2.03.1962. Later on, various coal companies including the NCDC, merged into Coal India Limited, whereas various subsidiary companies were also formed, one of which is BCCL. The complainant joined BCCL on 11.09.69. According to the complainant, the employees of NCDC were asked to opt as to whether they wanted to remain governed by the NCDC terms and conditions, or they accepted the service conditions of the BCCL. The complainant submitted his option on 2.03.1970, saying that he wanted to remain governed by the service conditions of the NCDC. Upon retirement, the complainant was sanctioned pension @25% of last drawn wages. However, the complainant has stated in his complaint that in pursuance of some decision of the Supreme Court, a circular dated 17.04.2008 vide OM No. CIL/C54/(I)/Ex/NCDC PAN 840 dated 17.04.2008 of Coal India Limited and then a circular No. BCCL/Pension/2008/341 dated 18.04.2008 was issued by the BCCL, advising the concerned collieries / units to pay pension as per the decision of the Supreme Court. According to the complainant, he is entitled for payment of pension @50% of his basic pay.
However, despite making a number of representations to the OPs, his pension was not revised. OP No. 2, General Manager, E.J. Area, Bhowra, Dhanabad had sent a letter to OP No. 1, i.e., Regional Commissioner, CMPF requesting him to revise the pension, but no action was taken by respondent no. 1.
The complainant filed the consumer complaint in question which was decided by the District Forum vide their order dated 30.11.2009, saying that there was no deficiency in service on the part of the OPs and the complaint was ordered to be dismissed. However, the complainant challenged this order by way of appeal before the State Commission, which was allowed and the OPs were directed to refix his pension and pay the dues. It is against this order that the present revision petitions have been made.
3. In reply to the consumer complaint before the District Forum, the Regional Commissioner, CMPF, OP No. 1 stated that pension under NCWA VII had been settled and the revised pension came to `_6,269/- per month and the arrears amounting to `_20,417/- were sent to the complainant vide cheque dated 06.03.2009. Regarding the settlement of pension as per NCDC rules OP No. 1 stated that the pensioner was qualified for CMPF membership and he made contribution since March 1970 to 2.03.2003 as per CMPF Scheme 1948 and the BCCL had also deposited their share. The complainant applied for revision of CMPF accumulation and the same had been refunded to him. Further, the complainant was governed as per provisions of Coal Mines Pension Scheme 1998 and entitled for pension as per Para 10(2) of the Scheme. He had also given a declaration that he was covered under the said Scheme and also given option to that effect.
4. In their reply to the complaint, OP No. 2, BCCL stated that the complainant had been paid the right amount of pension and the facts as stated in response given by OP No. 1, were correct.
5. At the time of hearing before us, the learned counsel for the petitioner in RP No. 3036/2012, Regional Commissioner, CMPF versus Anant Sethi, has drawn our attention to a copy of Coal Mines Pension Scheme 1998, as notified vide GSR No. 123(E) dated 05.03.1998 under the Coal Mines Provident Fund and Miscellaneous Provisions (Amendment) Act, 1996, notified under S.O. No. 232(E) dated 20.03.1998. The complainant was covered under clause X, Monthly Pension and he was eligible to receive monthly pension @25% of the average emoluments.
The learned counsel has also drawn our attention to the undertaking given by the complainant to the Regional Commissioner, CMPF, Dhanbad that he undertakes to refund or make good the amount to which he was not entitled. The complainant had also given his option at the time of submission of claim of pension under Coal Mines Pension Scheme 1998, saying that he had opted to draw full admissible amount of pension under paragraph 15(1)(A) of the Scheme. The learned Counsel stated that the petitioner was a statutory authority created by an Act of Parliament and hence, they were not bound to act in accordance with the circular issued by a Coal Company.
The learned counsel also stated that as per the said judgement of the High Court dated 19.08.2005, duly affirmed by the Honble Supreme Court in their order dated 13.03.2007, the direction was to revise the Dearness Allowance only and the same had already been done. The petitioner could, therefore, not deviate from the provisions of the Scheme and the said circular of the Coal India or the BCCL were not applicable to them.
6. In reply, the learned counsel for complainant/respondent admitted that the petitioner was supposed to make payment of pension @25% of the pay drawn by the employee, but he stated that the balance 25% amount was to be paid by the Coal India, either directly or through the petitioner.
7. In the second revision petition, RP No. 4370/2012, learned counsel for the petitioner stated that there had been a delay of 64 days in filing the revision petition, but the same had occurred as they became aware of the impugned order dated 18.05.2012 on 26/27.07.2012, upon receipt of claim from the respondent. An application for obtaining the certified copy of the order was made on 2.08.2012 and the same was issued on 1.10.2012. The revision petition was filed after getting the approval of the competent authority, engaging the counsel and then preparing the revision petition. The delay, being unintentional, should be condoned.
8. The learned counsel further argued that the erstwhile employees of Coal Production and Development Collieries (CPDC) Organisation, Coal Controller Organisation (CCO) and State Railway Collieries were absorbed in the service of the NCDC in the year 1956. However, the employees, who joined post-1956 were appointed and not absorbed in the service of NCDC. In the instant case, the complainant was appointed with NCDC on 2.03.62 and hence, he was governed by the Corporation Rules only, which did not contain any provision relating to pension. An office memorandum dated 17.08.1968 for implementation of wage board recommendations in respect of monthly paid staff was issued with effect from 16.08.67. The employees who had been appointed before 16.08.67 were given the option to retain the conditions of service enjoyed by them. The complainant, vide option form dated 02.03.70, opted for retaining the existing service conditions and still, he was not entitled to receive pension as per these service conditions. However, after having opted for wage board recommendations, the complainant became member of CMPF Scheme in 1970 and was given CMPF account number C/382840. By virtue of that, the complainant became member of Coal Mines Family Pension Scheme, 1971 and 1998 floated under CMPF, which was contributory in nature. The pension of the complainant had already been settled, revised and fully paid till date.
9. The complainant does not fall under the category of employee to whom Office Memorandum dated 2.05.2001 was applicable, because the said memorandum was applicable to employees absorbed from Central / Railway services, i.e., Pre-1956 set of employees. The said memorandum dated 2.05.2001 was, later on modified vide memorandum dated 21.08.2007 in compliance of order passed by the Honble Supreme Court on 13.03.2007 in SLP (C) No. 3617/2007 and SLP (C) No. 5117/2006. However, the category of employees covered remained the same, meaning thereby that the complainant cannot get benefit of the said memorandum. The complainant requested first time for payment of pension @50% of the salary vide his letter dated 4.10.2008, i.e., after 6 years of his retirement. The District Forum had, therefore, rightly dismissed the consumer complaint in question, based on the facts on record. However, the order passed by the State Commission was not in accordance with law and deserved to be set aside. The learned counsel further stated that the entire situation had been clarified in their rejoinder filed before this Commission on 23.09.2013.
10. In reply, the learned counsel for the complainant admitted that he was not in the category of absorbed employees, since he was appointed to the service of NCDC from 2.03.1962. He, however, stated that he was entitled to get pension @50% of his salary. The order passed by the State Commission was in accordance with law and the same should be upheld.
11. On behalf of respondent Anant Sethi, written notes of arguments have also been filed on 23.12.2013, which are on record.
It has been stated therein that the respondent have opted for the pay-scales, coal mines attendance bonus and DA recommended by Coal Wage Board and accepted by Government of India and for retaining the existing conditions of service (as on 14.08.67) by which he was governed at that time. The respondent had exercised this option after going through the OM No. RD/WB/IMP/Monthly Staff/68/17/08/1968. It has further been stated that the Coal India Limited issued OM dated 17.04.2008 in respect of exNCDC employees who retired under Wage Board recommendations or Industrial scale of pay. Both executive and non-executive pensioners were entitled to DA with effect from 1.1.92 and 1.7.96 respectively. Further, the executive and non-executive cadre employees were entitled to 50% basic pay as pension with effect from 1.1.92 and 1.7.96 respectively. The OM dated 17.04.2008 was explicitly for direct employees of NCDC like the present respondent and being ex-NCDC employee, he was entitled to get benefit of OM dated 17.04.2008.
12. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. In so far as RP No. 3036/2012, Regional Commissioner, CMPF, Dhanbad versus Anant Sethi is concerned, it has been categorically stated by the petitioner that they are a statutory authority created by an Act of Parliament, and they are supposed to give pension @25% of the salary as per the provisions of the Coal Mines Pension Scheme 1998. They have also stated that even if Coal India or BCCL have issued any further circular on the subject, they are not bound by it, as they have to proceed in accordance with the provisions of the Scheme / Act. This position has been admitted by the respondent during the course of arguments. It is clear, therefore, that no relief is required against the petitioner in RP No. 3036/2012 by the complainant/respondent. This revision petition is, therefore, liable to be allowed and the order passed by the State Commission, qua the petitioner, Regional Commissioner, CMPF, Dhanbad set aside.
13. Now, coming to RP No. 4370/2012, it is an admitted position that the respondent Anant Sethi was appointed to the service on 2.03.1962 and he is not one of the absorbed pre-1956 employees. The petitioners have clarified that the Office Memorandum dated 2.05.2001 was issued by Coal India Limited to regulate the pension in respect of such pensioners, who on absorption from the Central/Railway services, rendering pensionable service, had retired under available scale of pay.
This OM, therefore, does not apply to the present respondent. In accordance with the orders passed by the Honble Supreme Court on 13.03.2007 in SLP (C) 3617/2007 and SLP (C) 5117/2006, a modified OM was issued on 21.08.2007.
It is the case of the petitioner that the category of employees covered under the Memo dated 21.08.2007 remained the same as was under the OM dated 2.05.2001. Further modification in the OM dated 21.08.2007 vide OM dated 17.04.2008, was made in compliance of order dated 13.03.2007 of the Honble Supreme Court, but the category of employees covered, remained the same. The complainant has requested that he should be given pension @50% of basic salary in accordance with the OM dated 17.04.2008. However, since the petitioners have been able to show that such memorandum was applicable only to the absorbed employees and hence not applicable to the respondent, we do not find any justification to differ with this view, in view of the facts and circumstances of the case. It is clear, therefore, that the State Commission have taken an erroneous view in holding that the Memorandum dated 17.04.2008 was applicable to the respondent. The order passed by the State Commission is, therefore, liable to be set aside on this ground also.
14. Based on the above discussion, both these revision petitions are ordered to be accepted and the order passed by the State Commission is set aside and that of the District Forum is upheld. The consumer complaint, in question, is ordered to be dismissed with no order as to costs.
Sd/-
(K.S. CHAUDHARI J.) PRESIDING MEMBER Sd/-
(DR. B.C. GUPTA) MEMBER RS/