Madras High Court
P.Krishnasamy vs The Deputy Secretary To Government on 30 August, 2013
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.08.2013 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.P.No.21085 of 2010 P.Krishnasamy .. Petitioner Vs 1.The Deputy Secretary to Government, Transport Department, Fort St.Geroge, Chennai-600 009. 2.The Tamil Nadu State Transport Corporation (Coimbatore) Ltd., rep.by its Managing Director, 37,Mettupalayam Road, Coimbatore-43. 3.The General Manager, Tamil Nadu State Transport Corporation (Coimbatore) Ltd., Formerly Tamil Nadu State Transport Corporation (Coimbatore Div-II) Ltd, Erode Region, Chennimalai Road, Erode-2. 4.The Administrator, Tamil Nadu State Transport Corporations Employees Pension Trust, Pallavan Salai, Chennai-2. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Declaration to declare that the clarification issued by the first respondent in Letter No.11785/D/2003 dated 08.09.2003 directing all the Transport Corporations to count the qualifying service only from the date of regularisation and not to count the qualifying service from the date of enrollment to PF, the action of the respondents 2 to 4 in stopping the payment of pension to the petitioner from 01.12.2003 and the order dated 19.08.2010 of the third respondent justifying the stoppage of pension to the petitioner as illegal, unconstitutional, unjust and unreasonable and consequently direct the respondents to pay the petitioner pension every month and also the arrears of pension payable to the petitioner from 01.12.2003 together with interest at the rate of 12% per annum. For Petitioner : Mr.V.Ajoy Khose For Respondents : Mr.R.Ravichandran AGP for R1 Mr.T.Chandrasekaran for R2 and R3 Mr.P.Paramasivadoss for R4 O R D E R
Heard the learned counsel appearing on behalf of the petitioner, as well as the learned counsels appearing on behalf of the respondents.
2. It has been stated that the petitioner had joined as a driver in the Cheran Transport Corporation, on 24.04.1981, on daily wages. He was made permanent and granted the time scale of pay, from 01.11.1982. He was enrolled as a member of the provident fund, with effect from 01.11.1981. The provident fund contributions were also deducted from the salary of the petitioner, from the date of his enrollment as a member of the provident fund. On bifurcation of the Cheran Transport Corporation, he had become an employee of the Jeeva Transport Corporation. Finally, he was working at the Erode Town Branch-III of the Tamil Nadu State Transport Corporation (Coimbatore) Ltd., Erode Region, Erode, the second respondent herein.
3. It has been further stated that, as per the Voluntary Retirement Scheme formulated and agreed to by the parties concerned, under Section 12(3) of the Industrial Disputes Act,1947, and as per the circular issued by the second respondent, a workman, who had completed 15 years of qualifying service and completed 50 years of age, or a workman, who had completed 20 years of qualifying service, without reference to age, is eligible to go on voluntary retirement from service. The petitioner had completed more than 20 years of qualifying service. Therefore, he had made an application, dated 01.05.2012 requesting the third respondent to allow him to go on Voluntary Retirement. In response to the request made by the petitioner, the third respondent had accepted the application made by the petitioner, by an order, dated 25.07.2002, and he had been allowed to retire from service, with effect from 31.07.2002.
4. It has been further stated that as per the concluded settlement, dated 13.02.1999, all the State Owned Transport Corporations, including the second and the third respondents herein, had agreed to introduce and implement a pension scheme, to all the employees, who were in service, as on 31.08.1998, with effect from 01.09.1998. Pursuant to the said settlement, the Tamil Nadu State Transport Corporation Employees' Pension Fund Rules had been framed and it had been notified by the Government, on 15.12.2000. However, as per the settlement, the workman, who were on the rolls of the Corporation, as on 31.03.1998, had been paid the pension as per the pension rules, retrospectively, with effect from 01.09.1998, or from the date of their retirement.
5. It has been further stated that the petitioner had gone on voluntary retirement, from 31.07.2002, as he had been told that he would be entitled to the pensionary benefits. It has also been stated that the petitioner possessed 20 years of actual service, qualified service, as well as pensionable service, as per the Rule 16(a)(2) of the Tamil Nadu State Transport Corporation Employees' Pension Fund Rules. Therefore, payment of pension had been sanctioned, in favour of the petitioner, by an order, dated 06.03.2003. Accordingly, the petitioner had been paid the pension, from 01.08.2002 to 30.11.2003. The second respondent had stopped the payment of pension, to the petitioner, from 01.12.2003, without issuing any prior notice. As the petitioner did not get any reply, from the third respondent, inspite of his request, he had obtained the necessary information by invoking the provisions of the Right to Information Act. The third respondent, by a letter, dated 09.08.2000, had informed the petitioner that, as per the clarification letter No.11785/D/2003-2, dated 08.09.2003, issued by the Government, clarifying the Tamil Nadu State Transport Corporation Employees' Pension Fund Rules, the petitioner was not entitled to the payment of pension. In the said letter, it is stated that the qualifying service would have to be counted from the date of regular appointment of the employee and not from the date of his enrollment to the provident fund scheme. If the period of service of the petitioner is to be counted from the date of his regulrisation in service, it would be clear that he did not possess 20 years of qualifying service and therefore, he would not be entitled to the payment of pension, under Rule 16(a)(ii) of the said Rules. In such circumstances, the petitioner has preferred the present Writ Petition, before this Court, under Article 226 of the Constitution of India.
6. A counter affidavit has been filed on behalf of the third respondent stating that the petitioner had been appointed, initially, as a driver, on 25.07.1981 and his service had been regularised, on 01.11.1982. He had retired from service, on 31.07.2002, voluntarily. It had been further stated that the voluntary retirement scheme is applicable to the persons, who had completed 50 years of age and put in a minimum qualifying service of 15 years, or to those who put in a qualifying service of 20 years. The petitioner had voluntarily retired under the voluntary retirement scheme, on completion of 20 years of service, on 31.07.2002.
7. It has been further stated that, as per the Wage Settlement of the year, 1998, the Pension Scheme, called the Tamil Nadu State Transport Corporation Employees' Pension Fund, had been formulated for the benefit of the Employees' of the State Transport undertaking, with effect from 01.09.1998. As per Rule 16(a)(ii), a member shall be entitled to voluntarily retirement pension, if he had rendered a qualifying service of 20 years or more and had attained the age of 50 years.
8. Initially, pensionable service had been granted from the date of the membership of the person in the provident fund. Later on, it had been refused and the pensionable service was being counted from the date of regularization of the person in service. As per the Government letter, in letter No.11785/D/2003-2, dated 08.09.2003, the petitioner had not completed the qualifying service of 20 years. Therefore, the pension which was being paid to him had been stopped, from the month of November,2003. The petitioner had completed only 19 years and 17 days of qualifying service, and rounding off service would be made applicable only after the completion of the minimum eligible service, for the payment of the pensionary benefit and not for the minimum requirement of period of service and such rounding off cannot be made applicable to ascertain eligibility. Hence, the petitioner was found to be ineligible for the payment of pension.
9. In the counter affidavit filed on behalf of the fourth respondent, it has been stated that the voluntary retirement scheme is applicable to a person, who had completed 50 years of age and had put in a minimum qualifying service of 20 years. The petitioner had voluntarily retired from service, under the said scheme, on completion of 20 years of service, on 31.07.2002. As per the Wage Settlement of the year, 1998, the Pension Scheme, called the Tamil Nadu State Transport Corporation Employees' Pension Fund, had been formulated for the benefit of the employees of the State Transport undertakings, with effect from 01.09.1998. As per Rule 16(a)(ii) of the Tamil Nadu State Transport Corporation Employees' Pension Fund Rules, a member shall be entitled to voluntary retirement from service, if he had rendered the qualifying service of 20 years or more and had attained the age of 15 years. It has been further stated that the petitioner, who had been appointed, on 25.07.1981, had been regularised in service, on 01.11.1982. He had joined as a member of the provident fund, on 01.11.1981. Under the Voluntary Retirement Scheme, the person is eligible for payment of pension only if he had completed 50 years of age and 20 years of service, from the date of his regularization in service. As the petitioner had completed only 19 years of service, at the time of his exit, he was not eligible for the payment of pension, as per the Government Letter, in Government letter No.11785/D/2003-2, dated 08.09.2003.
10. The learned counsel appearing on behalf of the petitioner had submitted that the petitioner had been allowed to retire from service, under the Voluntary Retirement Scheme, only after the authorities concerned had been satisfied that he had completed 20 years of service and 50 years of age, as per the Pension Rules applicable to him. After allowing the petitioner to retire from service, under the Voluntary Retirement Scheme, it would not be open to the respondents to claim that the petitioner was ineligible for the payment of pension. In fact, the respondents would be estopped from claiming that the petitioner had not completed 20 years of pensionable service. The petitioner had agreed to go on voluntary retirement, only on the hope and assurance that he would be paid pensionary benefits.
11. The learned counsel appearing for the petitioner had further submitted that, if the respondents had put the petitioner on notice about the letter No.11785/D/2003-2, he would not have opted for voluntary retirement from service and he would have continued and completed 20 years of minimum qualifying service. Therefore, the rejection of the claim of the petitioner is contrary to the doctrine of legitimate expectation and the respondents are estopped from taking a contrary stand, with regard to his qualifying service, after he had been allowed to go on Voluntary Retirement from service. He had further stated that the petitioner had been assured of the payment of pension, by way of settlement entered into under Section 12(3) of the Industrial Disputes Act,1947, dated 30.02.1999, with effect from 01.09.1998. While so, it would not be open to the respondents to deny the payment of pension to the petitioner.
12. The learned counsel appearing for the petitioner had further submitted that there was no ambiguity or vagueness in rule 2(p)(iii) of the Tamil Nadu State Transport Corporation Employees' Pension Fund Rules, which states that, in respect of the other employees, the date of regular employment or the date on which the employee concerned had become a member of the employees' Provident Fund in the State Transport Undertaking, would be reckoned for the calculation of pensionable service. Therefore, there was no necessity for the Government to issue a clarification, by way of a letter No.11785/D/2003-2, dated 08.09.2013. Further, Rule 2(o) defines contributory service as the period of 'actual service' rendered by the member from whom contributions for the fund have been received. Rule 2(b) states that 'actual service' shall be reckoned for calculating pensionable service.
13. The learned counsel appearing for the petitioner had also pointed out that, as per the Rule(8) of the Tamil Nadu State Transport Corporation Employees' Pension Fund Rules, the pension scheme would be applicable to all the employees of the establishment, who are on the rolls, as on 01.09.1998 or employed after that date and are members of the employees provident fund scheme. Further, as per Rule 10(b), the State Transport Undertakings shall pay the contributions to the Trust, on a monthly basis of 12% of the actual basic plus dearness allowance paid to the employees or at the rates that may be revised by the Government, from time to time. As per Rule 10(e), the State Transport Undertakings shall keep a record of the periods of non-contributory service of its employees and advise them, from time to time, that such non-contributory service shall not be counted for arriving at the actual period of pensionable service. In the present case, the petitioner had not been informed about the non-contributory service.
14. It had been further stated that the petitioner would be entitled to the payment of pension, as per the Rule (2)(p)(iii), as it exits, until it is amended in accordance with the procedures prescribed for the said purpose. The Government cannot amend the said rule, by way of a letter of clarification. The impugned letter of clarification cannot override the rule to take away the benefits granted to the employees. Even otherwise, the rule could be amended only prospectively. Unless such amendment is beneficial to the employees concerned, the benefit which had already accrued to the petitioner cannot be taken away, by way of a letter of clarification. The letter of clarification cannot restrict the qualifying service by counting it only from the date of the regularization of the service of the employees, when contributions have been received from the employees concerned, from the date of their enrollment to the provident fund.
15. In such circumstances, this Court may be pleased to declare that the clarification issued by the first respondent, in his letter, dated 08.09.2003, is arbitrary, illegal and void and consequently, direct the respondents to grant pensionary benefits to the petitioner, from 01.12.2003, along with interest.
16. Per contra, the learned counsels appearing on behalf of the respondents had submitted that the petitioner is not eligible to receive the pension, as he has not completed the eligible qualifying service. As per the letter of clarification issued by the Government, in letter No.11785/D/2003-2, dated 08.09.2003, the petitioner has completed only 19 years 17 days of service, from the date of his regularization in service. Therefore, he would not be eligible for the payment of pension, as per the Pension Rules applicable to him. Even though the petitioner had been allowed to retire from service, under the Voluntary Retirement Scheme, his claim for payment of pension cannot be accepted, in view of the clarification letter issued by the Government, in letter No.11785/D/2003-2, dated 08.09.2003. Therefore, the present Writ Petition filed by the petitioner is devoid of merits and therefore, it is liable to be dismissed.
17. The learned counsel appearing on behalf of the petitioner had relied on the decision of the Supreme Court in M.D.TNSTC (Madurai) Ltd., Vs. M.Natarajan & another (SLP.NO.16446 of 2013, dated 08.05.2013), wherein, it has been held that, after the request of the employee for voluntary retirement had been accepted, the Officers of the Corporation concerned would be estopped from questioning the entitlement of the employee to receive pensionary benefits.
18. The learned counsel had relied on the decision, in Maharashtra University of Health Sciences, rep.by Deputy Registrar Vs. Paryani Mukesh Jawaharlal & Others, (CDJ 2007 SC 710), to show that, when the words of the rules are clear and unambiguous, there could be no reason for the Government to issue a clarification, by way of a clarification letter No.11785/D/2003-2, dated 08.09.2003.
19. The learned counsel appearing on behalf of the petitioner had relied on the decision of a learned Single Judge of this Court, in N.Krishnaswamy Vs The Administrator and another, (W.P.No.7118 of 2009, dated 30.4.2010) wherein it had been held as follows:
"3. When the matter is taken up for consideration, the learned counsel for the petitioner has relied upon the order passed in W.P.No.1949 of 2007 dated 19.02.2009 delivered in the case of (P.SRIDHARAN Vs. THE MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION EMPLOYEES PENSION FUND TRUST AND ANOTHER). In a similar situation, this Court in W.P.No.1949 of 2007 a direction has been given to the respondents to consider the request of the petitioner for grant of pension. The relevant portion of the said order reads as follows:
"Para.6. When the petitioner had applied for voluntary retirement, the Transport Corporation ought not to have accepted the said request, since the petitioner has not completed 20 years of qualifying service. Having accepted his voluntary retirement on the assumption that the employee had completed 20 years of service, now the transport corporation cannot turn back and contend that because of non-completion of 20 years of qualifying service, he is not eligible for pension. Such view has been taken by the Division Bench of this Court in W.A.(MD) No.585 of 2007 dated 20.03.2008. Paragraph Nos.7 and 8 of the said judgment is usefully extracted hereunder:
"Para 7. In the peculiar facts and circumstances of the present case, we do not feel that it is necessary to delve into this question, we, in our opinion, if the present first respondent had not completed 20 years of service, he was not eligible for seeking voluntary retirement under the scheme provided by the Transport Corporation and therefore at that stage, the Transport Corporation should not have accepted such voluntary retirement. Having accepted such voluntary retirement on the assumption that the employee had completed 20 years of service, now the appellant Corporation cannot turn back and contend that because of non-completion of 20 years of service, the present first respondent was not eligible to pension. Therefore, in our considered opinion, the order passed by the learned Single Judge does not require any interference.
Para.8. The present application shall now forward all necessary papers to the present third respondent, the Tamil Nadu State Transport Corporation Employees Pension Fund Trust within a period of four weeks from the date of receipt of a copy of this order. It goes without saying that the third respondent, the Tamil Nadu State Transport Corporation Employees Pension Fund Trust will consider the matter and take appropriate decision, as expeditiously as possible."
Following the above said decision, I am of the view that similar direction could be given in this case also."
20. The learned counsel appearing on behalf of the petitioner had also relied on the decision of a learned Single Judge of this Court, made in R.Veeraiyan Vs. The Management of Tamilnadu State Transport Corporation (Kumbakonam Division-I) Ltd., rep by its Managing Director, Kumbakonam) (W.P.No.4466 of 2004, dated 27.04.2010), wherein, it had been held as follows:-
"6. The petitioner, after completing the required 20 years of service, submitted his application in good faith that the respondents would compute the service of the petitioner in the right perspective and grant pensionary benefits. At the time of submitting his application seeking permission to go on VRS, the petitioner, admittedly, having rendered 20 years of service, the respondents Corporation also accepted the request of the petitioner on the bonafide ground that the petitioner had completed 20 years of service, which is requisite for a person to go on VRS from service of the respondents Corporation. Admittedly, after accepting the request of the petitioner to go on VRS from the service of the respondents, the respondents issued an order relieving the petitioner from the service of the respondent Corporation. Whileso, the respondent Corporation cannot turn around and say that the petitioner had not rendered 20 years of service, for the simple reason that, while computing the service of the petitioner, it was found that he had rendered only 19 years 7 months and 4 days of service. In any event, if the respondent Corporation had communicated to the petitioner that he is 3 months short of completing 20 years of service, naturally, the petitioner would have continued in service for another 3 months to be eligible for the purpose of getting pensionary benefits by putting the requisite number of years of service. But, the respondent Corporation, after accepting the petitioner's application dated 11.08.2000, relieved the petitioner from the service of respondent Corporation with effect from 08.01.01. Therefore, they cannot deny the benefit of pension on the ground that while computing, it is found that the petitioner has put in 19 years 7 months 4 days of service. In any event, the petitioner is running short of less than 5 months of service. As already held by this Court in W.P.No.2634/2009, dated 20.04.2009, if a person is running short of 6 months of service, a fraction of service which is six months or more shall be treated as one year of service. Therefore, the impugned order is liable to be quashed and the same is quashed. Since the petitioner has retired in the year 2002, i.e., 8 years ago, the respondent Corporation is directed to pay the pensionary benefits to the petitioner as expeditiously as possible."
21. The learned counsel appearing on behalf of the petitioner had also relied on the decision of a Division Bench of this Court, in The Management of State Express Transport Corporation (Tamil Nadu) Ltd., rep by its Managing Director, Pallavan Salai, Chennai Vs. P.Rajarathinam (W.A.No.663 of 2007, dated 4.7.2008), wherein, it had been held that, when a pensionary provision is available to the employee, the Management could not take advantage of his ignorance and issue a show cause notice to discharge him from service, arbitrarily. The State Express Transport Corporation (Tamil Nadu) Limited, Chennai, being a wing of the Government, should be a model employer.
22. The learned counsel appearing on behalf of the petitioner had also relied on the decision of a Division Bench of this Court, in THE MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM) LTD., KUMBAKONAM Vs. N.JOTHI AND ANOTHER (W.A.(MD)No.94 of 2010, dated 20.4.2010), wherein, the order of the learned Single Judge holding that 19 years, 7 months and 18 days of actual service put in by the employee concerned should be construed as 20 years of actual service, as per the relevant rules applicable for the payment of pension, had been upheld.
23. The learned counsel appearing on behalf of the petitioner had also relied on the decision of a Division Bench of this Court, in The General Manager, The Tamil Nadu State Transport Corporation, (Kumbakonam Division) Ltd., Pudukkottai Region, Kumbakonam Vs. R.Karuppaiah and others (W.A.(MD).No.585 of 2007, dated 20.03.2008), wherein, it had been held as follows:
7.In the peculiar facts and circumstances of the present case, we do not feel that it is necessary to delve into this question, as, in our opinion, if the present first respondent had not completed 20 years of service, he was not eligible for seeking voluntary retirement under the scheme provided by the Transport Corporation and therefore at that stage, the Transport Corporation should not have accepted such voluntary retirement. Having accepted such voluntary retirement on the assumption that the employees had completed 20 years of service, now the appellant Corporation cannot turn back and contend that because of non-completion of 20 years of service, the present first respondent was not eligible to pension. Therefore, in our considered opinion, the order passed by the learned Single Judge does not require any interference
24. The learned counsel appearing on behalf of the petitioner had also relied on the decision of a Division Bench of this Court, in The General Manager, Tamil Nadu State Transport Corporation, Regional Office, No.45, Chennimalai Road, (Kovai Division-II), Erode and another Vs. M.Krishnaswamy (W.A.No.647 of 2011, dated 20.4.2011), wherein, it had been held as follows:-
"2. Admittedly, the respondent joined the service of the appellant-Transport Corporation in the year 1977 and got voluntary retirement in the year 2000 and thereby completed 20 years of continuous service. In that view of the matter, the learned single Judge rightly relied upon a Division Bench judgment of this Court in Writ Appeal No.585 of 2007 and allowed the writ petition.
3. We do not find any reason to differ with the finding recorded by the learned single Judge. This appeal is, therefore, dismissed. There shall be no order as to costs. Consequently, M.P.No.1 of 2010 is closed."
25. The learned counsel appearing on behalf of the petitioner had also relied on the decision of a Division Bench of this Court, in The Management of Tamil Nadu State Transport Corporation, (Kumbakonam Division-I) Ltd., rep by its Managing Director, Kumbakonam Vs. Tamil Nadu State Transport Corporation, Employees Pension Fund Trust, Rep by Administrator, Pallavan Salai, Chennai and another (W.A.No.1687 of 2012, dated 14.8.2012), wherein, it had been held as follows:
"4. It appears that the respondent-writ petitioner was appointed as a driver in the year 1980 and rendered service for nearly 20 years. On his retirement, he was denied pensionary benefits on the ground that instead of completing 20 years of service, he has completed only 19 years 7 months and 4 days, thereby there was a shortage of 5 months. The learned single Judge noticed from other documents that the respondent completed 19 years 10 months and 21 days of service.
5. As per Rule 43(3) of the Tamil Nadu Pension Rules, in calculating the length of qualifying service, fraction of a year equal to (three months) and above should be treated as a completed one half year and reckoned as qualifying service.
6. In the instant case, the service was short only by less than five months. Therefore, the learned single Judge has rightly held that by rounding off the said period of service, the respondent should be given pensionary benefits. We do not find any strong reasons to differ from the view taken by the learned single Judge. The writ appeal is dismissed. No costs. Consequently, miscellaneous petition is closed."
26. The learned counsel appearing on behalf of the petitioner had also relied on the decision of a Division Bench of this Court, in Tamil Nadu State Transport Corporation (Madurai) Ltd., rep by its Managing Director Bye-pass Road, Madurai Vs. Periyasamy Pitchaimuthu (W.A.(MD) No.387 of 2010, dated 25.8.2010), wherein, it had been held as follows:-
"6. According to the said Rule, in respect of all other employees, the date of regular employment of becoming a member of Employees' Provident Fund Scheme in STU will be reckoned for calculation of pensionable service. Though as per the said Rule, the minimum period of ten years is mentioned as on Actual Service, in the light of the above provision, the actual period should be calculated from the date when he became a member to the Employees Provident Fund Scheme, i.e. from 17.7.96, if the period from 17.7.96 till 1.5.97 is also taken into consideration the respondent would have more than ten years of pensionable service. In such event, the respondent would be entitled to requires no interference. The provision of Section 2(q)(iii) of the Rules is also perused and the said provision would certainly make the respondent entitled for pension by taking into consideration of the period from when he became the member of Employees' Provident Fund Scheme i.e from 17.7.96. Hence, we find no reason to interfere with the order of the learned Single Judge.
In the result, the writ appeal fails and the same is accordingly dismissed. No costs, Consequently connected Miscellaneous Petitions are closed."
27. The learned counsel appearing on behalf of the fourth respondent had relied on the following decisions in support of his contentions:-
27.1. In HEC Voluntary Retd.Employees Welfare Society and another Vs. Heavy Engineering Corporation Ltd and others, (2006) 3 SCC 708, the Supreme Court had held as follows:-
11. An offer for voluntary retirement in terms of a scheme, when accepted, leads to a concluded contract between the employer and the employee. In terms of such a scheme, an employee has an option either to accept or not to opt therefor. The scheme is purely voluntary, in terms whereof the tenure of service is curtailed, which is permissible in law. Such a scheme is ordinarily floated with a purpose of downsizing the employees. It is beneficial both to the employees as well as to the employer. Such a scheme is issued for effective functioning of the industrial undertakings. Although the Company is State within the meaning of Article 12 of the Constitution, the terms and conditions of service would be governed by the contract of employment. Thus, unless the terms and conditions of such a contract are governed by a statute or statutory rules, the provisions of the Contract Act would be applicable both at the formulation of the contract as also the determination thereof. By reason of such a scheme only is an invitation of offer floated. When pursuant to or in furtherance of such a Voluntary Retirement Scheme an employee opts therefor, he makes an offer which upon acceptance by the employer gives rise to a contract. Thus, as the matter relating to voluntary retirement is not governed by any statute, the provisions of the Contract Act, 1872, therefore, would be applicable too."
27.2. In Union of India Vs. Rakesh Kumar (2001) 4 SCC 309, the Supreme Court had held as follows:
11. For appreciating the contentions raised by the learned counsel for the parties it would be necessary to refer to Section 8 of the BSF Act and Rule 19 of the Rules which are as under:
8. Resignation and withdrawal from the post.No member of the Force shall be at liberty,
(a) to resign his appointment during the term of his engagement; or
(b) to withdraw himself from all or any of the duties of his appointment, except with the previous permission in writing of the prescribed authority. (emphasis supplied) 19. Resignation.(1) The Central Government may, having regard to the special circumstances of any case, permit any officer of the Force to resign from the Force before the attainment of the age of retirement or before putting in such number of years of service as may be necessary under the Rules to be eligible for retirement:
Provided that while granting such permission the Central Government may,
(a) require the officer to refund to the Government such amount as would constitute the cost of training given to that officer; or
(b) make such reduction in the pension or other retirement benefits of the officer if so eligible as that Government may consider to be just and proper in the circumstances.
(2) The Central Government may accept the resignation under sub-rule (1) with effect from such date as it may consider expedient:
Provided that it shall not be later than three months from the date of receipt of such resignation.
(3) The Central Government may refuse to permit an officer to resign
(a) if an emergency has been declared in the country either due to internal disturbances or external aggression; or
(b) if it considers it to be inexpedient so to do in the interests of the discipline of the Force; or
(c) if the officer has specifically undertaken to serve for specific period and such period has not expired.
(4) The provisions of this Rule shall apply to and in relation to Subordinate Officers and enrolled persons as they apply to and in relation to any officer of the Force and the powers vested in the Central Government under sub-rules (1) and (2) shall be exercised in the case of a Subordinate Officer by a Deputy Inspector General and in the case of an enrolled person by a Commandant. 27.3. In United Bank of India Vs Pijush Kanti Nandy and others (2009) 8 SCC 605, the Supreme Court had held as follows:
26. Definition of qualifying service is restrictive in nature. It uses the word means and not includes or means and includes. Thus, the construction of qualifying service must ordinarily be kept confined to the service rendered while on duty. He may be in service even otherwise although not rendering any duty. Those exigencies of situation are covered by the other types of cases which would come within the purview thereof. A person who is not in service cannot be said to be entitled to the benefit thereof. The term otherwise should be read ejusdem generis. The term otherwise in the context of the Regulations should be construed so that it can become a meaningful one. For the said purpose, the employee concerned was required to be in service. It is not possible to hold in absence of any express words that the eligibility criteria laid down in the Regulations for obtaining the benefit of pension i.e. the qualifying service should be construed in such a manner that a person even not in service would be deemed to be in service. The statute does not raise a legal fiction. A strict construction of the term qualifying service therefore, in our opinion, would not be appropriate.
27.4. In Union of India Vs. A.S.Gangoli and others (2007) 6 SCC 196, the Supreme Court had held that "varying periods of weightage are added to the qualifying service of defence service officers to compensate for, or offset the disadvantage of early age of superannuation in defence service. The weightage of 7 years for a Group Captain is because he normally retires from Air Force Service at a comparatively early age of 52 years. If a Group Captain is permitted to prematurely retire so that he can be permanently absorbed immediately in a public sector undertaking where the retiring age is 58 or 60, the need to provide weightage disappears. Further, the officers who took premature retirement for the purpose of immediate employment in PSU/autonomous bodies received several specific benefits. First, they will have the benefit of joining immediately and continuing in service in a public sector undertaking or autonomous body, without losing their pensionary benefits. The other retirees including those retiring prematurely on personal grounds did not have the benefit or such immediate assured alternative employment, with pensionary benefits for the defence service intact. Secondly, they got the benefit of 100% commutation and a lesser minimum period of qualifying service which the other retirees did not get. Therefore, the persons who retired prematurely for immediate purpose of joining PSUs, clearly formed a distinct and separate class. In view of the special benefits extended to them, if Note (1) to Clause 5 excluded them from the benefit of weightage which was given to the other retirees, it is not discrimination. The decision not to extend the benefit of weightage to those who retired prematurely for immediate permanent absorption in a PSU or autonomous body is a matter of policy of the Government supported by logical reasons. So long as such policy is not manifestly arbitrary and does not violate any constitutional or statutory provision, it is not open to challenge. 27.5. In Union of India and another Vs. Bashirbhai R.Khiliji (2007) 6 SCC 16), the Supreme Court had held as follows:
9. We are presently concerned with two provisions of the Rules i.e. Rule 38 and Rule 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the authorities concerned and in particular Form 23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six-monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word qualifying service has been defined in Rule 3(1)(q) of the Rules which reads as under:
3. (1)(q) qualifying service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules;
10. Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him."
27.6. In Justice P.Venugopal Vs Union of India and Others (2003) 7 SCC 726, the Supreme Court had held that the question of entitlement of a person, for payment of pension, would depend on the statute or on the terms and condition of his appointment.
27.7. In Sudhir Kumar Consul and Allahabad Bank, (2011) 2 LLJ 199, the Supreme Court had observed that Regulation 46(1) of the Bank's Officer Service Regulations, 1979, provided pensionary benefit, in lieu of gratuity, only to those who were officers on the appointed date, namely, July 1,1979. Moreover, provision 3 of the old Pension Scheme had stipulated that officers recruited or promoted after July 1, 1979, were not entitled to pension. The appellant did not satisfy the above condition. He was promoted as an officer only in the year, 1983. Hence, he was held not eligible to claim the benefit under the Old Pension scheme.
28. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available and on considering the decisions cited supra, it is noted that the petitioner had joined in service, as a driver, in the Cheran Transport Corporation, on 24.4.1981, on daily wages.
29. The petitioner had been made a permanent employee and granted the time scale of pay from 1.11.1982. It is also noted that, the petitioner had enrolled himself, as a member of the Provident Fund Scheme, with effect from 1.11.1981. Consequently, the Provident Fund Contributions had been deducted from his salary, periodically. It is also noted that, as per the voluntary retirement scheme formulated and agreed to by the parties to the concluded settlement, under Section 12(3) of the Industrial Disputes Act, 1947, and as per the circular issued by the second respondent, a workman, who had completed 15 years of qualifying service and had completed 50 years of age or a workman, who had completed 20 years of qualifying service, without reference to age, is eligible to go on voluntary retirement. Accordingly, in view of the said voluntary retirement scheme, the petitioner had made an application, dated 1.5.2002, requesting the third respondent to allow him to go on voluntary retirement, as he had completed more than 20 years of qualifying service.
30. The third respondent had accepted the application made by the petitioner and had passed an order, dated 25.7.2002. While so, the first respondent had issued a letter, dated 8.9.2003, 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 8.9.2003, the respondents 2 to 4 had stopped the payment of pension to the petitioner, from 1.12.2003. The third respondent had issued a letter, dated 19.8.2010, 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 1.11.1981.
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 25.7.2002, 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 31.7.2002, 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 him, as per the Rules of the Tamil Nadu Transport Corporation Employees Pension Fund, without reference to the impugned letter of the first respondent, dated 8.9.2003, 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.
ssm To
1.The Deputy Secretary to Government, Transport Department, Fort St.Geroge, Chennai-600 009.
2.The Tamil Nadu State Transport Corporation (Coimbatore) Ltd., rep.by its Managing Director, 37,Mettupalayam Road, Coimbatore-43.
3.The General Manager, Tamil Nadu State Transport Corporation (Coimbatore) Ltd., Formerly Tamil Nadu State Transport Corporation (Coimbatore Div-II) Ltd, Erode Region, Chennimalai Road, Erode-2.
4.The Administrator, Tamil Nadu State Transport Corporations Employees Pension Trust, Pallavan Salai Chennai 2