Judgment:
Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified Mandamus by calling for the records pertaining to the order of the 1st respondent in his TNSTC/Madurai/P.F8/C.R.11179 Dated 27.02.2012 quash the same as illegal and consequence thereof directing the 2nd respondent to pay pension benefit to the petitioner.)
1. The prayer in the writ petition is for a Writ of Certiorarified Mandamus by calling for the records pertaining to the order of the 1st respondent in his TNSTC/Madurai/P.F8/C.R.11179 Dated 27.02.2012 quash the same as illegal and consequence thereof directing the 2nd respondent to pay pension benefit to the petitioner.
2. The case of the petitioner is that he joined in service as Conductor at the respondent Corporation on 27.11.1983. He was removed from service within the probation period and has been reinstated on 26.07.1985, pursuant to the settlement arrived under Section 18(1) of Industrial Disputes Act. Thereafter, based on a charge and enquiry, again the petitioner was removed from the service on 02.08.1991 as against which, he raised Industrial Dispute in IDOP No.250/1993. Thereafter, the labour Court passed an award by directing the respondent Management to pay compensation of Rs.50,000/- to the petitioner. Thereafter, a settlement arrived at between the petitioner and the respondent Corporation again under Section 18(1) of the Industrial Disputes Act on 20.05.1998, by which, the first respondent Management has agreed to re-employ the petitioner as a fresh employee on daily wages basis without continuance of service subject to medical fitness. The petitioner also agreed to the said terms of the settlement and thereafter joined duty as daily wages employee on 12.06.1998. Thereafter, the petitioner's service was regularised only from 04.08.1999.
3. After regularisation, he continued his service and retired on superannuation on 31.01.2011. After retirement, no pensionary benefits was given to the petitioner. Therefore, when he had requested the respondents, the respondents passed the impugned order dated 27.02.2012, wherein, the request of the petitioner was rejected on the ground that the petitioner has not completed minimum required years ie., 10 years period of minimum service for the purpose of pension. Challenging the same, the petitioner has come out with the present writ petition.
4. Heard both sides.
5. The learned counsel for the petitioner would contend that no doubt, after 18(1) settlement, second time, he was appointed as afresh employee on 12.06.1988 on daily wages basis. Subsequently, his service was regularised only from 04.08.1999 and he retired from service on superannuation on 31.01.2011. Within this period, though the petitioner has put in more than 10 years of service, the net qualifying period, where the petitioner has not contributed towards Provident Fund for three years 7 months 2 days, had been reduced by the respondents and thereafter, only the remaining period of 7 years 7 months and 12 days had been taken into account and on the basis of that they refused sanction of pension to the petitioner. The learned counsel for the petitioner would further submit that the petitioner had become a member of Pension Fund of the respondent Corporation from 23.11.1998. Once an employee become member of the Employees Pension Fund Rules, even though he was a daily waged employee at that time and only subsequently he had been regularised, the date on which, he become member of the Fund under the Tamil Nadu State Transport Corporation Employee Pension Fund Rules alone has to be taken into account for the purpose of calculating the pensionary service of an employee.
6. In this regard, the learned counsel for the petitioner has heavily relied upon the decision of this Court reported in 2013(4) LLJ 139 (Madras) in the matter of P.Krishnasamy v. the Deputy Secretary to Government, Transport Corporation and others. Wherein, by orders of this Court dated 30.08.2013, the learned judge, after having considered a number of decisions of the Hon'ble Apex Court as well as this Court on the issue and ultimately concluded that from the date of an employee becoming member of the respondent Corporation Pension Scheme, would be the date to be reckoned with for the purpose of calculating the pensionary service. In this regard, the following findings of the learned Judge in the judgment cited supra can be usefully referred to:
30. The third respondent had accepted the application made by the petitioner and had passed an order, dated 25.07.2002. While so, the first respondent had issued a letter, dated 08.9.2003, directing the Transport Corporation to count the qualifying service of its employees, only from the date of their regularisation in service. It had also instructed the Transport Corporations not to count the qualifying service of its employees from the date of their enrollment to the Provident Fund Scheme. Based on the letter issued by the first respondent, dated 08.09.2003, the respondents 2 to 4 had stopped the payment of pension to the petitioner, from 01.12.2003. The third respondent had issued a letter, dated 19.08.2010, justifying the stoppage of pension, which was being paid to the petitioner.
31. It is noted, from a reading of Rules relating to the Tamil Nadu Transport Corporation Employees' Pension Fund, Especially, Rule 2(p)(iii), which states that the date of regular employment or the date on which the employee concerned had become a member of the Employee's Provident Fund, in the State Transport Undertaking, would be reckoned for the calculation of the pensionable service of the employee. According to the said Rule, the petitioner had completed more than 20 years of pensionable service, as he had become a member of the Provident Fund Scheme, with effect from 01.11.1981.
32. Even otherwise, the petitioner ought to have been informed, while he had been allowed to go on voluntary retirement from service, by a letter of the third respondent, dated 25.07.2002, that he had not completed 20 years of pensionable service, as alleged by the respondents. Having allowed the petitioner to go on voluntary retirement from service, with effect from 31.07.2002, the respondents would be estopped from claiming that the petitioner had not rendered the minimum number of years of service for getting pension.
33. As such, this Court is of the considered view that the petitioner ought to be paid the pension due to hi, as per the Rules of the Tamil Nadu Transport Corporation Employee's Pension Fund, without reference to the impugned letter of the first respondent, dated 08.09.2003, along with the interest accrued thereon, at 9% per annum, from the date when the said amount became due, till the date of its payment, within a period of twelve weeks from the date of receipt of a copy of this order. The writ petition is ordered accordingly. No costs.
7. The learned counsel for the petitioner would also contend that insofar as the period of three years 7 months and 2 days, which was treated as unqualified service for the purpose of calculating the pensionary service is concerned, he has relied upon a decision of this Court in the matter of R.Deivasigamani v. The Administrator, Tamilnadu State Transport Corporation Employees' Pension Fund, and others in W.P.No.25151 of 2004, dated 01.02.2011, where, this Court had an occasion to consider a similar situation, where also, the period, where an employee has not contributed to the pension fund was directed to be treated as a qualified service for the purpose of calculating the minimum service for pension, provided, the respondent Transport Corporation would recover the contribution from the employee for the said period and accordingly, the period can be calculated to arrive at a minimum required period for the purpose of pension. In this regard, the following findings of the learned Judge in the said judgment cited supra can be usefully referred to hereunder:
14. In the instant case also as contemplated under Rule 10(e) of TNSTC Employees' Pension Fund Rules, Petitioner was not informed that leave on loss of pay would be treated as and quat; non-contributory and quot; service. Respondents have passed the impugned order only after the retirement of the Petitioner. Applying the ratio of the above decision (CDJ 2005 MHC 1551), the impugned order passed by the Respondents cannot be sustained. Leave on loss of pay for 9 months during the period from 23.10.1991 to 30.06.1992 shall be treated as qualifying service. Contribution payable during the said period shall be recovered from the Petitioner and that the said period is ordered to be treated as and quot; contributory service and quot;
15. In the result, the Writ Petition is allowed to the extent ordered above. Respondents are directed to settle the pensionary benefits to the Petitioner after deducting the contribution payable during the period of leave on loss of pay i.e., from 23.10.1991 to 30.06.1992 within a period o three months from the date of receipt of copy of this order. No costs.
8. By quoting the above said judgment, the learned counsel for the petitioner would contend that since the petitioner also become member of the Fund from 23.11.1998, if from that date the service is calculated, it would certainly surpass the minimum required period of 10 years for the purpose of pension and therefore, he would be entitled for pension and other benefits. Therefore, the rejection of such a plea raised by the petitioner through the impugned order is totally unsustainable and therefore, it is liable to be interfered with.
9. Per contra, the learned counsel for the respondents by relying upon the averments made in the counter affidavit submitted that the petitioner's service can be calculated only from the date of regularisation and not from the date, he becoming the member of the Fund. Assuming that his service can be calculated from the date he becoming the member of the fund, ie., on 23.11.1998, even then he would not complete the minimum required service period of 10 years service on superannuation on 31.01.2011, because, during this period, there was about three 3 years 7 months and 2 days as unqualified service, for which, there was no contribution on the part of the petitioner. If the said service of three years 7 months two days has reduced or deducted from the total service rendered by the petitioner, even from the date, he becoming member of the Fund, certainly, it would be less than 10 years and therefore, he would not be entitled to get any benefit as claimed by him. Hence, the impugned order passed by the respondents is in consonance with the legal position based on the service conditions of the petitioner and therefore, there is no requirement of any interference by this Court.
10. This Court has considered the said submissions made by the learned counsel for both sides as well as the materials placed before this Court for perusal.
11. The admitted facts are that though the petitioner had been appointed at the respondent Corporation in the year 1983, he was removed twice from the service and ultimately, after having entered into a settlement under Section 18(1) of the Industrial Disputes Act, the petitioner had been appointed afresh on 12.06.1998 only, that too, by way of daily wages employee. No doubt, his service has subsequently been regularised from 04.08.1999. Atleast from that date, according to the Rules, he was entitled to calculate the service period for the purpose of pension. If it is calculated from 04.08.1999 till 31.01.2011, the date on which, he retired, it would come more than 10 years. However, in between this period, there was an unqualified period of three years 7 months two days. When the said period was treated as loss of pay, naturally during this period, there was no chance for the petitioner to make any contribution towards Provident Fund of the respondent Corporation.
12. In the circumstances by the principle enunciated by this Court in the two judgments referred to above, one is 2013(4) LLJ 139 (Madras) and another one is W.P.No.25151 of 2004 in the matter of R.Deivasigamani v. The Administrator, Tamilnadu State Transport Corporation Employees' Pension Fund, and others, the two hurdles now faced by the petitioner can easily be overcome. The first hurdle is that whether the services of the petitioner from the date of he becoming the member of the fund, can be taken into account for the purpose of pensionary service is concerned, the first judgment is the answer, under which, the law has been discussed and held that if an employee has become member of the scheme and contributed to the Transport Corporation Employees Pension Fund Scheme, then, he would be eligible to take the benefit from that date, when he becoming member and not from the date he subsequently regularised in his service.
13. Insofar as the 2nd hurdle is concerned, whether the three years 7 months and 2 days period, which was treated as unqualified period, for which, there was no contribution on the part of the petitioner towards the Fund is concerned, the 2nd judgment is the answer, by which, the analysis if there is any proof to show during the service record of the employee concerned that non contribution to the said Fund would disentitle the employee from becoming the qualified person for the purpose of pension by calculating the said period, where there was no contribution, then, such unqualified period also can be taken into account, of course, subject to the recovery of the contribution from the employee concerned for the said period. Therefore, by virtue of the two judgments cited supra, both the hurdles faced by the petitioner herein can be resolved. If these two hurdles are resolved, the reasoning cited by the respondents in the order impugned for rejection of the claim of the petitioner for giving pension and other retirement benefits is concerned, cannot be sustained. Therefore, this Court is of the view that by applying the ratio of the said two judgments, as the facts of those cases are also similar to that of the present case, the petitioner would become eligible to claim pensionary and other retirement benefits from the respondent Corporation, provided, if he is contributing the Fund for the period of unqualified service.
14. Resultantly, the following order is passed in the writ petition:
(I) the impugned order is quashed. The service of the petitioner from 23.11.1998, the date on which, he becoming the member of the Pension Fund Scheme shall be taken into account for the purpose of calculating his pensionary service till his attaining the superannuation and retirement.
(2) If within the period, the petitioner has undergone any unqualified service as claimed by the respondents to the extent of three years 7 months and two days, where there was no contribution on the part of the petitioner to the Fund, the said period also shall be taken into account as a qualified service, for which, the said contribution shall be recovered from the petitioner.
(3) On the basis of the above said directions, the total pensionary period shall be calculated for the purpose of pension and other benefits to the petitioner and accordingly, since obviously, it would surpass the minimum required period of 10 years service, the petitioner shall be paid all necessary pensionary and other benefits, for which, he is entitled and such payment shall be made within a period of three months from the date of receipt of a copy of this order.
15. With the above observations and directions, the writ petition is allowed. No costs.