Madras High Court
M. Pani vs The Management Of State on 1 August, 2005
Author: A. Kulasekaran
Bench: A. Kulasekaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01/08/2005
CORAM:
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
W.P. No. 2400 of 2005
M. Pani .. Petitioner
Vs
1. The Management of State
Transport Corporation
(Madurai Division I) Ltd
now renamed as
Tamil Nadu State Transport
Corporation (Madurai) Ltd
rep. By its Deputy Manager (Accounts)
Bye-pass Road
Madurai - 625 010
2. The Managing Director
Tamil Nadu State Transport
Corporation (Madurai) Ltd
Bye-pass Road
Madurai
3. The Administrator
Tamil Nadu State Transport Employees
Pension Fund Trust
Thiruvalluvar Illam
Anna Salai
Chennai - 600 002 .. Respondents
Petition under Article 226 of The Constitution of India praying for a Writ
of Certiorarified Mandamus as stated therein.
!For Petitioner ... Mr. A. Ragul
^For Respondents ... Mr. R. Sivamanoharan
:ORDER
The prayer in this Writ Petition is for a Writ of Certiorarified Mandamus calling for the records relating to the order dated 11-12-2003 passed by the first respondent in Ref.No.TNSTC/MDU.DIV-I/PF/Pension/649 and the order dated 12-12-2003 passed by the third respondent in Letter No.44/P2/TNSTC/EPFT/2003- 2179 rejecting the petitioner's claim for pension, quash the same and for a direction to the respondents to pay the petitioner pension for 24 years of his service from 17-04-1975 to 31-05-1999 every month from 01-06-1999 with all arrears and other consequential benefits.
2. The petitioner joined the services of the first respondent/corporation as a Driver on 17-04-1975. On 03-02-1982, he was dismissed from service for certain charges. The petitioner has challenged the said order of dismissal dated 03-02-1982 before the Labour Court, Madurai by filing I.D. No. 58 of 1988. On 02-07-1991, the labour court passed an award directing the first respondent herein to reinstate the petitioner with continuity of service, but without backwages. On 09-08-1991, as directed by the labour court, the petitioner was reinstated in service but without prejudice to the right of the management to challenge the said award. Thereafter, the Management has also filed Writ Petition No. 2712 of 1992 before this Court and the same was also dismissed on 23-11-1999. On 13-02-1999, a settlement under Section 12 (3) of the Industrial Disputes Act was said to have entered into between the corporation and the workers Union to introduce and implement pension scheme with effect from 01-09-1998 in which the petitioner has also enrolled himself as a member of the pension fund, the employer's share of contribution was also remitted. On 31-05-1999, the petitioner attained superannuation. According to the petitioner, he is entitled to the pension for the entire period of service namely 17-04-1975 to 31-05-1999 and a representation was sent by him which was rejected by the respondents stating that he was not eligible for the pensionary benefits, hence the present writ petition.
3. The case of the first respondent is that the petitioner was a member of the pension fund only for a limited period of seven years, nine months and twenty one days, he has not rendered pensionable service of ten years and therefore he is not entitled to any pensionary benefit. It is also the case of the first respondent that the petitioner had already withdrawn entire amount in the Provident Fund account, including employer's contribution pending industrial dispute; that though the petitioner was directed to be reinstated with continuity of service, no backwages was ordered by the labour court and in view of the said fact that no order for payment of backwages was ordered, there could not be any contribution to the pension fund for the period of his non- employment. In support of the above contention, the learned counsel for the respondents relied on Rule 2 (v) of the Tamil Nadu State Transport Employees Pension Fund Rules, hereinafter referred to as 'Rules', and submitted that the period for which contributions have been received from the member alone can be taken as pensionable service and Rule 2 (t) says that non-contributory service means the period of actual service rendered by a member for whom no contribution to the pension fund is received or receivable. The crux of the defence of the learned counsel for the respondents is that the petitioner is not entitled to the benefits of pension for the period of his non-employment, besides that he closed his Provident Fund Account during October 1989 by withdrawing the entire amount, including the amount of employees contribution. It is further argued by the learned counsel that the non-contributory period during the service of an employee shall not be counted for arriving at the actual period of pensionable service.
4. The learned counsel appearing for the petitioner submitted that though the petitioner was not awarded backwages, reinstatement was ordered by the labour court with continuity of service, which has also reached a finality after the dismissal of the writ petition by this Court; that the petitioner will not claim any benefits for the period commencing from 03-02-1982 to 10-08-1991, (nine years, six months and seven days) being the period of non-employment and agreed to repay the employer's share of contribution with interest as per the Rules. It is also further submitted by the learned counsel that the Employees Pension Scheme was introduced between 01-09-1998 and December 2000 and the employees, who were in service became members automatically as per Rule 2 (v) and the employer's share of contribution was recovered from some of the employees and the benefits were extended to them and prayed this Court to permit the petitioner to pay the employer's contribution with interest enabling the petitioner to get pensionary benefits for a period of fourteen years, after deducting ten years, being the period of non-employment. It is also prayed by the learned counsel for the petitioner that the respondents may be directed to adjust the amount payable by the petitioner towards repayment of employer's contribution with interest or commute it and calculation can be arrived accordingly and the pensionary benefits be extended to the petitioner.
5. I have carefully considered the arguments of the counsel on either side and also perused the materials placed before me.
6. In this context, it is relevant to refer to the decision of the Honourable Supreme Court reported in (All India Reserve Bank Retired Officers Association and others vs. Union of India and others) AIR 1992 Supreme Court 767 wherein in para-5, it was held thus:-
"5. The concept of pension is now well known and has been clarified by this Court time and again. It is not a charity or bounty nor is it gratuitous payment solely dependent on the whim or sweet will of the employer. It is earned for rendering long service and is often described as deferred portion of compensation for past service. It is in fact in the nature of a social security plan to provide for the December of life of a superannuated employee. Such social security plans are consistent with the socio-economic requirements of the Constitution when the employer is a State within the meaning of Article 12 of the Constitution. All the Bank employees who had retired prior to 1st November, 1990 were governed by the CPF Scheme. However, by the introduction of the pension scheme under the Regulations those employees who retired on or after 1st January, 1986 have been given an option to switch over to the pension scheme provided they refund the employer's contribution to the CPF scheme together with interest thereon and further agree to pay interest at six percent per annum from the date of receipt of the fund amount on superannuation till the repayment thereof......"
7. In the decision reported in (D.S. Nakra and others vs. Union of India) AIR 1983 Supreme Court 130, it was held in paragraphs No.32 and 33 as follows:-
"32. .........Article 39 (e) requires the State to secure that the health and strength of workers, men and women, and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 41 obligates the State within the limits of its economic capacity and development, to make effective provision for security the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want. Article 43 (3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities."
"33. ....What does a Socialist Republic imply? Socialist is a much misunderstood word. Values determine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its ramifications. The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income. This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism......"
".....There will be equitable distribution of national cake and the worst off shall be treated in such a manner as to push them up the ladder. Then comes the old age in the life of every one, to be a monarch or a mahatma, a worker or a pariah. The old age overtakes each one, death being the fulfilment of life providing freedom from bondage. But here socialism aims at providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical prowess. In the fall of life the State shall ensure to the citizens, a reasonably decent standard of life, medical aid, freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom and the humility of dependence in old age. This is what Article 41 aims when it enjoins the State to secure public assistance in old age, sickness and disablement. It was such a socialist State which the Preamble directs the centres of power Legislative, Executive and Judiciary to strive to set up. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society is a long march but during this journey to the fulfilment of goal every State action (illegible) taken must be directed, and must be so interpreted, as to take the society one step towards the goal."
8. In the light of the above said judgments of the Apex Court, I now deal with this case. The case of the petitioner is that the petitioner has, subsequent to his termination, pending I.D. No. 58 of 1988 before the labour court has withdrew the provident fund account and closed the same due to unavoidable circumstance and poverty. Though he was reinstated as early as 09- 08-1991, pension scheme was not introduced by then and the scheme was introduced only on 17-12-2000 with retrospective effect from 01-09-1998 and the employees, who were in service between 01-09-1998 and 2000 were permitted to pay the contributions with interest by adjustment or by commutation of the amount and benefits were extended to them. In this case, backwages was not ordered to the petitioner, however, continuity of service and reinstatement were ordered by the labour court, hence, counting his service only from reinstatement is not proper. Taking note of the above said facts, if the total period of service of the petitioner is calculated, it may works out to about twenty four years i.e., between 17-04-1975 and 31-05-1999, which was admittedly certified by the respondents. It is also to be noted that the petitioner is willing to forgo the benefits for a period of nine years, six months and seven days, being the period of non-employment and agreed to pay the employer's contribution with interest as per rules. It is also brought to the notice of this Court by the learned counsel for the petitioner that in similar case, some of the employees were extended the benefits after payment of employer's contribution. Hence, I feel that this is a fit case that such a concession can be extended to the petitioner also. Accordingly, the below mentioned order is passed.
i) The petitioner is directed to pay the employer's contribution for the period of non-employment with interest as per Rules or adjust it by commutation and submit necessary application/representation to that effect to the respondents and also give consent to waive the benefits of the scheme for the period of non-employment, as agreed by him, within a period of two weeks from the date of receipt of a copy of this order.
(ii) In case, even after commutation, if there is any deficit, the petitioner is directed to pay the same.
(iii) On receipt of such application/ representation, the respondents are directed to extend the benefits of the pension scheme to the petitioner for the remaining period.
(iv) The above said exercise shall be completed by the respondents within a period of eight weeks from the date of application/representation from the petitioner.
9. The writ petition is disposed of in the above terms. No costs.
To
1. The Management of State Transport Corporation (Madurai Division I) Ltd now renamed as Tamil Nadu State Transport Corporation (Madurai) Ltd rep. By its Deputy Manager (Accounts) Bye-pass Road Madurai - 625 010
2. The Managing Director Tamil Nadu State Transport Corporation (Madurai) Ltd Bye-pass Road Madurai
3. The Administrator Tamil Nadu State Transport Employees Pension Fund Trust Thiruvalluvar Illam Anna Salai Chennai - 600 002