SPECIAL OFFICER Vs. DINBANDHU MISHRA

JUDGEMENT

(1.) THIS appeal is directed against the order dated 21st January, 2003 passed in C.W.J.C. No. 1637 of 2000. Vide the impugned order a direction has been issued to the appellant to clear all the pay, retiral benefits to the petitioner within three months and the direction for recovery of the salary during the period of over stay has also been quashed.

(2.) IT has been argued on behalf of the appellant -Municipality that exercise of option for pensionary benefits in terms of Rule 4(i)(ii) of the Bihar Municipal Officers and Servants pension Rules, 1987 within ninety days was a condition precedent for payment of pension and since the respondent -employee did not exercise the option within the statutory period, he is not entitled to pension, though his other retiral benefits have been paid.

(3.) WE have gone through the records of the writ application. The appellant -Municipality has nowhere stated non -exercise of option as a ground for non -payment of pension. The only ground raised before the writ court is that respondent No. l herein is not entitled to pension in view of the fact that no separate fund was allocated for the same. Rule 13 enjoins a duty upon the employer to create a fund by contributions from the employees and the employer at the rate of 12% of the salary. It is admitted case of the parties that the deduction has been made from the salary of respondent No. l at the rate of 12% but the amount was deposited in the provident fund of the employee rather than in the pension fund, since no pension kind was created by the employer. If the employer has failed to discharge his statutory obligation, an employee cannot be made to suffer. Under the circumstances we do no find any merit in this appeal, which is, accordingly, dismissed.