Pension Not Payable If Employee Fails To Exercise Mandatory Option Under 1984 Model Pension Rules Adopted By Municipality: Calcutta HC

Background Facts

The appellant was employed as a Burial Ground Watchman at Budge Budge Municipality. He joined service in 1971 and retired on February 29, 2012. The Municipality passed a resolution in 1989 to redesignate four posts of Watchman (burial ground) as Burial Ground Recorder. It was done with retrospective effect from April 1, 1981. The matter was stayed for years due to pending government approval.

The appellant approached the High Court seeking benefits attached to the redesignated post. It was directed by the Court to the Municipality to send the resolution to the government. Further it was also directed to release all retiral benefits in favour of the appellant.

Subsequently, the government issued an order redesignating the appellant as Burial Ground Recorder with notional effect from November 24, 2000. The actual financial benefits were to be given from January 1, 2013. However, the Municipality denied him pensionary benefits.

Aggrieved by this denial, the appellant filed a writ petition which was rejected by a Single Judge. Hence, he filed the appeal before the Division Bench of the Calcutta High Court.

It was argued by the employee that the municipality had not adopted the Model Pension Rules. Further the minicipality had recklessly annexed the rules followed by the Chandannagar Municipal Corporation.

It was further submitted that upon his redesignation as Burial Ground Recorder, the West Bengal Municipal (Employees' Death cum Retirement Benefits) Rules, 2003 would become applicable to him. The employee placed reliance on a decision of the Chairman of the Budge Budge Municipality to claim that he was entitled to pension. It was also contended that in the municipality never stated that the Model Rules had been formally adopted, they were only followed. It was further submitted that no rules had been framed by the municipality.

On the other hand, it was argued by the Municipality that the 2003 Rules had not been adopted. The Model Pension Rules framed under the Bengal Municipal Act, 1932, were made applicable to their employees. It was confirmed by a government notification dated August 2, 1984. The municipality contended that under Rule 8 of the 1984 Rules, every employee willing to come under the pension scheme had to exercise an option within 90 days of notice. A notice was issued by the Chairman calling upon employees to exercise their option. The appellant never filed any such option form.

Findings and observations of the Court

It was noted by the Division Bench that all retirement benefits available under the 1984 notification were paid to the employee. It was further observed that the employee never exercised the mandatory option for pension under Rule 8 of the 1984 Rules despite a notice.

It was further observed that the employee had taken a contradictory stand i.e. at one place he claimed the option was not necessary, but at another he stated that he had exercised the option and the form was lost. It was noted that an employee who opted to come under the 1984 Rules would have to surrender the share of the employer's contribution to the CPF This exercise was not undertaken by the employee.

It was also noted that the redesignation was made effective notionally from November 24, 2000 and actually from January 1, 2013, after the employee's retirement. The Rule 1(3) of the 2003 Rules stated that municipalities which had already adopted death-cum-retirement benefit rules under the 1932 Act would not be covered by the 2003 Rules.

It was held by the Division Bench that the employee had been asking for pay fixation and retirement benefits based on the redesignated post, which were granted.

It was held by the Division Bench that the employee was not deprived of the retirement benefits. He was given the retirement benefits under the Notification of 1984 which were the applicable under Deathcum-Retirement Benefit Rules 1984. However, the option for pension was never exercised till the date of retirement.

With the aforesaid observations, the order of the Single Judge was upheld by the Division Bench. Consequently, the appeal filed by the employee was dismissed by the Division Bench.

Case Name : Sk. Golam Kibria Vs. The State of West Bengal & Ors.

Case No. : FMA 1012 of 2021

Counsel for the Appellant : Nitai Chandra Saha, Nisha Agarwal, Abhijit Majumdar

Counsel for the Respondents : Pijush Kumar Chaturvedi, Sr. Adv., Md. Hafiz Ali