Allowed

S. Rajendran v. State of Tamilnadu

Madras HC1 Apr 2013WP/8456/2006

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging the denial of pension to a voluntary retiree under 50 years of age. Ruling that the scheme accepted the retiree despite falling short on age, the Court ordered pension arrears with 9% interest deemed reasonable.

What did the court decide?

Petition allowed; respondents directed to pay monthly pension and arrears with 9% interest per annum from date of retirement.

S. Rajendran Vs State of Tamilnadu — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 01.04.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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W.P. No.8456 of 2006

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S.Rajendran ... Petitioner

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versus

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State of Tamil Nadu rep. by its Secretary to Government, Transport Department, Fort. St. George, Chennai-9

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Tamil Nadu State Transport Corporation (Coimbatore) Ltd., rep. by its Managing Director, Coimbatore 641 011

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The General Manager, Tamil Nadu State Transport Corporation, (Coimbatore) Ltd., Erode Division, Erode 638 002 ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of writ of certiorarified mandamus calling for the entire records relating to the impugned orders of the third respondent vide his Letter Pa.No.11455/PF/TNSTC/CBE/ ED/2005 dated 19.10.2005 and quash the same and consequently direct the respondents to grant pension to the petitioner from the date of his voluntary retirement with interest at the rate of 12% per annum from the date of retirement till the date of settlement of pension. (Prayer amended as per order dated 27.03.2013 by STJ in WPMP. No.90 of 2013 in W.P. No.8456 of 2006)

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ORDER

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Heard the learned counsel appearing for the petitioner as well as the respondents.

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The writ petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of certiorarified mandamus calling for the entire records pertaining to the Proceedings dated 19.10.2005 in Letter Pa.No.11455/PF/TNSTC/CBE/ ED/2005 on the file of the third respondent and quash the same and consequently direct the respondents to grant pension to the petitioner from the date of his voluntary retirement with interest at the rate of 12% per annum from the date of retirement till the date of settlement of pension.

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It is an admitted fact that the petitioner was appointed as Conductor under the respondents on 21.12.1978 at Dharapuram Branch of the respondents Corporation. In the affidavit, it is stated that the petitioner and other employees of the respondents Corporation were governed by the Central Provident Fund and Miscellaneous Provisions Act for the purpose of pensionary benefits. The State of Tamil Nadu, first respondent herein issued Rules vide G.O. Ms. No.135 Transport Department dated 15.12.2000 called Tamil Nadu State Transport Corporation Employees Pension Fund Rules, herein after referred to as 'the Rules' which came into force with retrospective effect from 01.09.1998.

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Mr. K.Premkumar, learned counsel appearing for the petitioner submits that the petitioner due to his family circumstances, opted for voluntary retirement from the service on 05.01.2004. The petitioner's offer was accepted by the second respondent and he was permitted to retire under the Voluntary Retirement Scheme with effect from 29.03.2004 by the proceedings of the second respondent dated 24.03.2004. Learned counsel for the petitioner further submitted that the petitioner has completed nearly 25 years of service and completed the age of 45 years and 11 months and he was permitted to retire from service under the Voluntary Retirement Scheme. The petitioner has further stated that he submitted his application dated 19.08.2005 seeking pension, however, to the shock and surprise of the petitioner, the third respondent by his letter dated 19.10.2005 in Pa.No.11455/ PF/TNSTC/CBE/ED/2005 rejected the claim of the petitioner on the ground that the petitioner had not completed 50 years of age on the date of his retirement, as per Rules. Hence, the petitioner submitted an appeal before the first respondent on 02.03.2006, requesting him to grant pension in accordance with law.

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However, the same was not considered in favour of the petitioner, hence, the petitioner filed the writ petition, challenging the impugned Rule 16(a)(ii) of the Tamil Nadu State Transport Corporation Employees Pension Fund Rules as ultra vires,

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however, during the pendency of the writ petition, the petitioner filed a Miscellaneous petition to permit him to amend the prayer. Accordingly, the relief sought for in the petition was amended whereby the petitioner has sought an order to quash the order dated 19.10.2005 passed by the third respondent in letter Pa.No.11455/PF/ TNSTC/CBE/ED/2005 and direct the respondents to grant pension to the petitioner from the date of his voluntarily retirement with interest at 12% per annum from the date of retirement till the date of settlement of pension.

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Mr.T.Chandrasekaran, learned counsel appearing for respondents 2 and 3 drew the attention of this Court to the counter filed by the third respondent wherein the third respondent has stated that the Voluntary Retirement Scheme, herein after referred to as VRS, was applicable only to the persons who have completed 50 years of age and put in minimum qualifying service of 15 years or to those who have put in a total qualifying service of 20 years. According to the third respondent, the petitioner herein voluntarily retired under the scheme after completion of 24 years of service on 29.03.2004 and as per the Tamil Nadu State Transport Corporation Employees Pension Fund Rule 16(a)(iii), a member is entitled to get pension under the Voluntary Retirement Scheme, if he has rendered a qualifying service of 20 years or more and attained the age of 50 years. According to the third respondent, since the petitioner had completed only 45 years of age at the time of his voluntary retirement, though he had served for more than 24 years, he is not entitled to pension under the Voluntary Retirement Scheme.

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Learned counsel appearing for the petitioner submitted that the voluntary scheme was introduced only by way of Government Order in G.O. Ms. No.135 Transport Department dated 15.12.2000. The petitioner had completed 24 years of service, which is not in dispute. Though the petitioner was aged about 46 years, due to his family circumstances, he had opted for the Voluntary Retirement Scheme. After accepting the offer made by the petitioner, the respondents relieved the petitioner, however, denied the pensionary benefits payable to the petitioner under the scheme. Learned counsel for the petitioner contended that the respondents having permitted the petitioner to retire under the scheme, cannot deny the pension payable to the petitioner under the scheme. In support of his contention, the counsel for the petitioner cited a decision in C.Nagarajan vs The Management, Tamil Nadu State Transport Corporation, Kumbakonam and another, in W.P. No.27156 of 2005 dated 02.09.2010 rendered by this Court wherein it reads as follows:

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A Division Bench of this Court in W.A. No.663 of 2007 by its judgment dated 04.08.2008 held in paragraph 5 and 6 thus:

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"5. According to the respondent, the employees of the Corporation are entitled for pension being

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they are covered by the Employees Pension Fund Scheme framed by the respondent Corporation. For calculating the qualifying service as per clause (iii) of Sub Rule (p) of 2, of the Tamil Nadu Transport Corporation Employees' Pension Fund, the date of regular employment or the date on which, the concerned employee becoming a member of the Employees' Provident Fund will be reckoned.

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The respondent has become a member of the provident fund scheme on 01.10.1981 and had been retired on voluntary retirement on 30.06.2002. As such, the respondent's qualifying service, relying on that line, comes to 19 years and 7 months as actual service and as per Rule 13(e) of the said rules, fraction of service for six months or more has to be treated as one year. As such, the respondent had completed 20 years and thus, he is eligible for pension."

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In the order passed in W.P. No.27156 of 2005 dated 02.09.2010, the decision rendered in Indian Bank and another vs N.Venkatramani reported in 2007 (3) LLJ 829, has been followed by this Court. In the Indian Bank's case, it has been held that the respondent/employee had opted for voluntary retirement that was accepted by the Bank under the Voluntary Retirement Scheme introduced by the appellant/Bank therein, however, the employee was not paid pension, on the ground that he had not served for 15 years but only 14 years 9 months and 17 days, as per the old scheme.

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Though the writ petition, seeking the said relief was dismissed by a learned Single Judge, on appeal, a Division Bench of this Court allowed the writ appeal and ordered to pay pension in his favour. Aggrieved by which, SLP was preferred, wherein the Hon'ble Supreme Court held that beneficial regulations, should be construed liberally, whereby confirmed the view of the Division Bench in granting pension and the S.L.P. was dismissed.

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G.O. Ms. No.135 Transport Department dated 15.12.2000, Tamil Nadu State Transport Corporation Employees Pension Fund, Rule 16 reads as follows:

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"16. Monthly Member's Pension

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a) A member shall be entitled to

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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.

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ii) Voluntary Retirement Pension, if he has rendered a qualifying service of 20 years or more and attained the age of 50 years. ......"

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In the un-reported Judgment, C.Nagarajan vs. The Management, Tamil Nadu State Transport Corporation and another in W.P.No.27156 of 2005, dated 02.09.2010, this Court held as follows :

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23... Having permitted the petitioner to retire under VRS, the respondents have made the employee to have hope in getting the benefits, which are available under VRS. Had he been put on notice, he would have selected the option either to continue his service, so as to have twenty years of qualifying service for getting the benefits or otherwise. Without having 20 years of qualifying service, the respondents could not have permitted the petitioner to retire under VRS. I am of the considered view that the second respondent is bound by the view taken by the first respondent, so far as it relates to the qualifying service is concerned..."

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In the instant case also, the petitioner herein was permitted by respondents to retire under the VRS, as he was a member in the scheme and served for more than 24 years under the respondents, though which requires minimum service is 20 years. After permitting the petitioner to retire under the VRS, while the petitioner seeking pension under the scheme, the respondents informed that the petitioner was not entitled to seek pension, since he had not attained the age of 50 years. Having permitted the petitioner, to retire under VRS, it is not open to the respondents to raise such a defence, stating that petitioner is not entitled to get the benefits under the scheme.

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Learned counsel appearing for the respondents submitted that as per rule 16 a (ii), if a person has rendered a qualifying service of 20 years or more and on attaining the age of 50 years, he would be eligible to retire under the Voluntary Retirement Scheme and thereby eligible for getting pension. In the instant case, admittedly, the petitioner had served for more than 24 years and he opted under the Voluntary Retirement Scheme (VRS) and the same was also accepted by the respondents. The petitioner was relieved by the respondents, after accepting his offer for the voluntary retirement. Having accepted the offer of the petitioner, under the Scheme, it is not open to the respondents to say that the petitioner is not entitled to pension, as per rule 16 a (ii), on the ground that he had not attained 50 years of age though he had served under the respondents for more than 24 years.

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Had the petitioner not eligible under VRS, though he had served for more than the required service of 20 years and paid contribution, the respondents could have rejected his request, seeking permission under VRS. However, after permitting the

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petitioner and relieved him under VRS, the respondents are not entitled to say that the petitioner is not eligible to get pension under the scheme. It is well settled that no person or employer is entitled to blow hot and cold, whereby accepting one portion of the scheme, which is in favour of the person or authority and reject the other portion of the same, which is in favour of the other side.

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In S.K.Dua vs. State of Haryana and another, reported in 2008 (3) SCC 44, it has been held by the Hon'ble Supreme Court that interest for delayed payment of retirement benefit is legally sustainable. Hence, the employer is bound to pay interest for the delayed payment of retirement benefits.

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It has been categorically held by the Hon'ble Apex Court in various decisions that pension is only a part of the salary retained by the employer and paid after the retirement of the employee. In the instant case, though the required minimum number of service under VRS is only 20 years, the petitioner has got more than 24 years of service under the respondents and it is not in dispute that the petitioner has contributed subscription towards the pension and the same was deducted from his salary. Hence, the order referred to by the petitioner in W.P. No.27156 of 2005, which has reached finality, is squarely applicable to the facts of the present case, since the petitioner has served more than 24 years. The required minimum years of service is only 20 years under VRS and the petitioner had opted for voluntary retirement. Having served for more than 24 years, according to him, due to his family circumstances and after accepting the offer made by the respondents and the petitioner was also relieved from service by the respondents. It is not the case of the respondents that he had not paid any contribution towards the pensionary scheme. Hence, this Court is of the view that the petitioner is entitled to all monetary benefits which was available to any employee of the respondents who got voluntary retirement under the scheme.

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Similarly in a Division Bench of this Court in D.P.Selvaraj vs. Government of Tamil Nadu rep. by the Secretary to Govt., Finance (T&AI) Department, Chennai reported in 2009 (5) MLJ 1361, it has been held that when there is a delay in disbursing the arrears of the retiral benefits, the Government servant is entitled to interest on the belated payment of retiral benefits, particularly when the delay is not caused due to the employee.

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In the Management of State Express Transport Corporation, Chennai – 2 vs. Rajarathnam, a Division Bench of this Court on 04.07.2008 held that for calculating the qualifying service as per Clause 3 of Sub Rule (p) 2 of the Tamil Nadu Transport Corporation Employee's Pension Fund, the date of regular employment or the date on which, the concerned employee becoming a member of the Employees' Provident Fund will be reckoned. According to the petitioner, he had

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become a member of the provident fund scheme on 01.10.1981 and retired under VRS on 30.06.2002 and as such, the petitioner had qualifying service of more than 20 years. As per Rule 13(e) of the said Rules, fraction or service for six months or more has to be treated as one year and as such, the respondent therein was held to have completed 20 years of qualifying service and decided that he was eligible for pension.

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In Jothi vs. Mani and another, by Judgment in W.P.(MD). No.1829 of 2008, dated 24.10.2009, took a similar view in DP Sekar vs. Government of Tamil Nadu reported in 2009(5) MLJ 1361 has held that the petitioner is entitled to the amount with interest at 12% p.a. for the arrears of retiremental benefits from the date when the amount felt due till the date of its actual payment. The aforesaid decisions are squarely applicable to the facts and circumstances of this case. This Court is of the view that there is no justification on the part of the respondents for not disbursing the retirement benefits to the petitioner as on the date of the amount fell due. However, considering the Bank rate of interest, I hold that the petitioner is entitled to claim 9% interest from the date when the amount felt due till the date of actual payment being made.

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Though the petitioner is seeking 12% interest per annum for the amount due and payable to him, I find it just and reasonable to allow partly the petition so far as the interest is concerned and accordingly awarding 9% interest per annum in favour of the petitioner, which is just and reasonable as that of the similar case in W.P. No.27156 of 2005, by this Court, considering rate of interest, given by Nationalised Banks.

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In the result, the writ petition is allowed and the respondents are directed to pay monthly pension to the petitioner and the arrears of pension shall be paid with 9% interest per annum for the delayed payment from the date of retirement till the date of disbursement of pension. The entire arrears of pension, shall be paid with interest at 9% per annum to the petitioner within a period of six weeks from the date of receipt of a copy of this order. No order as to costs.

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sd/Assistant Registrar

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True Copy/-

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Sub Assistant Registrar

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vga

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The Secretary to Government
Transport Department,
Fort. St. George, Chennai-9
2.The Managing Director
Tamil Nadu State Transport Corporation
(Coimbatore) Ltd.,
Coimbatore 641 011
3. The General Manager,
Tamil Nadu State Transport Corporation,
(Coimbatore) Ltd., Erode Division,
Erode 638 002
+1 CC to M/s. K. Premkumar, Advocate SR No 18545
+1 CC to M/s.J. Chandrasekaran, Advocate SR No 18992
+1 CC to M/s. Rajnish Pathiyil, Advocate SR No 18996
W.P. No.8456 of 2006
CKN-CO
KV – 09/05/2013

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S. Rajendran v. State of Tamilnadu

Case brief

What is this about?

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S. Rajendran v. State of Tamilnadu

Case brief

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