IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.02.2011 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI W.P.No.25151 of 2004 R.Deivasigamani ..Petitioner Vs. 1.The Administrator, Tamil Nadu State Transport Corporation Employees' Pension Fund, Pallavan Salai, Chennai-2. 2.The Management of Tamil Nadu State Transport Corporation (Vellore) Limited, Rangapuram, Vellore-9. ..Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus to call for the records from the 2nd Respondent relating to the order in Letter No.2208548/PF.4/TNSTC (V.D-2)/03 dated 22.09.2003 and quash the same and direct the 1st Respondent to pay pension to the Petitioner from the date of retirement. For Petitioner : Mr.S.T.Varadarajulu For Respondents : Mr.R.Singaravelan for 1st Respondent Mr.G.Muniratnam for R2 O R D E R
Petitioner seeks Writ of Certiorarified Mandamus to quash the impugned order of 2nd Respondent in Letter No.220/8548/PF.4/TNSTC (V.D-2) dated 22.9.2003 and direct the 1st Respondent to pay pension to the Petitioner.
2. Brief facts are that Petitioner joined the service of the 2nd Respondent-Tamil Nadu State Transport Corporation (Vellore) Limited [TNSTC] as Conductor in 1977 and his service was confirmed in 1979. Case of Petitioner is that since he met with an accident in 1989 and lost his left leg, he was referred to the Medical Board and invalidated from service. According to Petitioner, he made a representation to the Management for alternate employment. By the order of 2nd Respondent dated 05.10.1991, Petitioner was appointed as Helper as a fresh entrant and accordingly, he joined the service on 23.10.1991. Further case of Petitioner is that various pension schemes have been introduced in the Respondents’ Corporation and in 1995, Employees Pension Scheme was introduced and the employees of the 2nd Respondent became members of Employees’ Pension Scheme. Petitioner attained the age of superannuation on 30.6.2002 and he was settled gratuity and provident fund amounts. However, 2nd Respondent has failed to pay pension to the Petitioner. Thereafter, Petitioner has made a representation on 06.8.2003 to the Chief Minister by marking copy to the 2nd Respondent. Stating that Petitioner had served less than 10 years i.e. 9 years 11 months and 7 days and as such he is not eligible to get pension, the 2nd Respondent passed the impugned order dated 22.9.2003 which is challenged in this Writ Petition. Petitioner has also issued lawyer notice on 03.03.2004 which was replied by the 2nd Respondent on 16.4.2004.
3. Resisting the Writ Petition, 1st Respondent has filed counter contending that Petitioner was on leave on loss of pay for 9 months during the service period from 23.10.1991 to 30.6.2002 and the same has been treated as non-contributory service as per Rule 2 (v) of TNSTC Employees’ Pension Fund Rules. According to 1st Respondent, after deducting the said leave period, the net qualifying service would come to 9 years 11 months and 7 days. Case of Respondents is that as per Rule 16(a)(i), retired employee should have put in minimum qualifying service of 10 years. Since Petitioner has not rendered the required qualifying service is not entitled for payment of pension.
4. Heard Mr.S.T.Varadarajulu, learned counsel appearing for Petitioner, Mr.R.Singaravelan, learned counsel for 1st Respondent and also Mr.G.Muniratnam, learned counsel appearing for 2nd Respondent.
5. Petitioner was appointed as “Helper” as fresh entrant from 23.10.1991 and he retired from service on 30.06.2002 on superannuation. During the said period, Petitioner was on leave on loss of pay for nine months which according to Respondents, has to be treated as “non-contributory” service. According to Respondents, as per Rule 2 (v) of TNSTC Employees’ Pension Fund Rules, after deducting non-contributory period of nine months, the net qualifying service of the Petitioner comes to 9 years 11 months and 7 days.
6. As per Rule 16 (a) (i) of TNSTC Employees’ Pension Fund Rules, one should have put in minimum ten years of qualifying service to become eligible for pensionary benefits. According to Respondents, Petitioner’s net pensionable service is 9 years 11 months and 7 days and therefore, he is not eligible for pensionary benefits. According to Respondents, the rounding off provision in Rule 13 (a) of TNSTC Employees’ Pension Fund Rules is applicable only for calculating pensionary benefits after putting in minimum required qualifying service of ten years as per Rule 16 (a) (i). Case of Respondents is that since Petitioner has not completed qualifying 10 years of actual service, he is not eligible for pension.
7. Contention of Petitioner is that as per Rule 13(a) of TNSTC Employees” Pension Fund the broken period of service which is more than six months has to be treated as one year and therefore, 11 months 7 days has to be rounded off to one year and Petitioner is eligible for pension.
8. According to Respondents, Rule 13(a) says about calculation with regard to rounding off the actual service rendered by the member, who put in more than the minimum required qualifying service. As per Rule 16(a)(i) when the Petitioner had not put in the minimum required qualifying service, he cannot invoke Rule 13(a) of TNSTC Employees’ Pension Fund Rules to round off the fraction of service. It is relevant to refer to Rule 13(a) and Rule 16(a)(i) of TNSTC Employees’ Pension Fund Rules which read as under:-
“13. DETERMINATION OF ELIGIBLE SERVICE
(a) The eligible service shall be determined as follows:
In the case of a “New Entrant” entering into service on or after 1.9.1998, the “actual service” shall be treated as eligible service. The total actual service shall be rounded off to the nearest year. The fraction of service for six months or more shall be treated as one year and the service less than six months shall be ignored.”
“16. MONTHLY MEMBER’S PENSION
(a) A member shall be entitled to-
(i) Superannuation Pension, if he has rendered a qualifying service of 10 years or more and retires on attaining the age of 58 years or the retirement age that may be fixed by the employer.”
9. As rightly contended by the learned counsel for Respondents, as per Rule 16(a)(i) of TNSTC Employees’ Pension Fund Rules one should have put in minimum 10 years of qualifying service to became eligible for pensionary benefits. The rounding off provision in Rule 13(a) is applicable only for calculating the pensionary benefits after put in the minimum required qualifying service of 10 years as per Rule 16 (a) (i) and therefore, Rule 13(a) may not be applicable.
10. As per Rule 2(o) “contributory service” means the period of “actual service” rendered by the member for which the contributions to the fund have been received. The actual service is defined in Rule 2 (p) which reads as under:-
“2 (p) The “Actual Service” as defined below shall be reckoned for calculating pensionable service:
(i) …..
(ii) …..
(iii) In respect of all other employees, the date of regular employment or becoming the member of the Employee’s Provident Fund in the STU will be reckoned for the calculation of pensionable service.”
11. Part IV deals with contributions towards Pension Fund Trust. As per Rule 2 (v) of TNSTC Employees Pension Fund Rules, “pensionable service” means the service rendered by the member for which the contributions have been received. Case of Corporation is that during his service, Petitioner was on leave on loss of pay for 9 months and the same is to be treated as “non-contributory” service as per Rule 2 (v) of TNSTC Employees’ Pension Fund Rules and after deducting the said “non-contributory” period of 9 months, the net qualifying service of the Petitioner comes to 9 years 11 months 7 days and Petitioner has not put in the minimum qualifying service of 10 years for entitlement of pension. According to Corporation the pensionable service will be recknoned from the date when employee becomes the member of the Employee’s Provident Fund. According to Corporation, the leave on loss of pay of 9 months is to be treated as “non-contributory” service for which no contribution to the Pension Fund was received.
12. Ofcourse during the period of leave on loss of pay, there was no contribution by the Petitioner towards Pension Fund. As per Rule 10 (e) of TNSTC Employees’ Pension Fund Rules, if for a member there is a non-contribution service, the State Transport Undertakings shall keep a record of such non-contributory service and shall advise the member of the non-contributory service from time to time that such non-contributory service shall not be counted for arriving the pensionable service. Absolutely, there is no material to show Petitioner was informed that the said period of 9 months shall not be counted for arriving at the pensionable service.
13. At this juncture, it is relevant to refer to the decision of the First Bench of this Court reported in CDJ 2005 MHC 1551 [N.S.Rajan and others v. The Management of Indian Bank and another] in which an identical situation arose in respect of the workmen of Indian Bank. In the said case, no entries were made in the Service Records of Petitioners thereon to the effect that leave on loss of pay is treated as unqualifying period and that the order treating the leave period as unqualifying service came to be passed only after the retirement of Petitioners which was quashed by the First Bench of this Court. In paragraph (21) of the said Judgment, the First Bench has held as under:-
“21. In these cases, no definite entries are made in the service records of the petitioners to the effect the leave on loss of pay is treated as unqualifying period. Entries regarding service being qualifying or otherwise are required to be made simultaneously with the event, specific entries in the service records regarding non-qualifying periods will be only taken note of and such periods be excluded. All spells of extraordinary leave not covered by such entries simultaneously with the event will be deemed to be qualifying service. The respondents passed the impugned orders only after retirement of the petitioners, which are untenable and liable to be quashed and accordingly quashed. Hence, we hold that the leave on loss of pay of the petitioners shall count as qualifying period for pension, however, such period shall not exceed the maximum period of 720 days stipulated under Regulation 37 of Service Regulations. While calculating, the period for more than six months but less than one year, can be treated as one year. Followed the decision of the Division Bench in Venkataramani v. Indian Bank and another in W.P.No.14744 of 2003 dated 04.7.2005.”
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 “non-contributory” 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 30.6.1992 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 “contributory service”.
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 of three months from the date of receipt of copy of this Order. No costs.
bbr
To
1.The Administrator,
Tamil Nadu State Transport
Corporation Employees’ Pension Fund,
Pallavan Salai, Chennai-2.
2.The Management of
Tamil Nadu State Transport
Corporation (Vellore) Limited,
Rangapuram,
Vellore 9