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N. Bharathi v/s State Express Transport Corporation Ltd., Rep. by its Managing Director, Chennai & Others

    W.P. No. 11637 of 2016
    Decided On, 14 September 2022
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM
    For the Petitioner: V. Ajoy Khose, Advocate. For the Respondents: R1 & R2, K. Kathiresan, R3, C.S.K. Sathish, Advocates.


Judgment Text
(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Declaration, declaring that the action of the respondents in refusing to pay the petitioner family pension on the ground that her husband was covered only under the New contributory Pension Scheme as illegal and consequently direct the respondents to pay the petitioner family pension with effect from 16.12.2009 with arrears and all other consequential benefits together with interest and to pay the petitioner family pension every month during her life time, award costs.)

1. The writ of declaration has been filed to sanction and disburse family pension on the ground that the husband of the writ petitioner is covered under the Old Pension Scheme and not under the New Contribution Pension Scheme.

2. The petitioner states that her husband was working as Driver-cum-Conductor and he was initially engaged on daily wage basis and his services were regularised from 01.09.2005. Thus, the husband of the writ petitioner was brought under the regular time scale of pay with effect from 01.09.2005 onwards.

3. The grievance of the writ petitioner is that the husband of the petitioner ought to have been considered under the Pension Regulations, which came into effect from 01.09.1998 onwards and consequently, she is eligible for family pension. However, the respondents have treated the husband of the writ petitioner as an employee, regularly appointed in the year 2005, after the cut-off date of 01.04.2003 and proposed to settle the benefits under the New Contributory Pension Scheme.

4. The learned counsel for the petitioner reiterated that the petitioner is eligible for family pension with reference to the Pension Regulations and the decision taken by the respondents to settle the benefits under the New Contributory Pension Scheme is perverse.

5. The learned counsel appearing on behalf of the respondents objected the contentions raised by the petitioner by stating that the husband of the writ petitioner became a regular employee of the establishment only with effect from 01.09.2005 and the said date is taken into consideration for the purpose of granting the terminal and pension benefits. Employees regularly appointed after 01.04.2003 are brought under the New Contributory Pension Scheme and accordingly, they are entitled to get benefits under the said scheme. However, the dues admissible under the New Contributory Pension Scheme, which are to be settled in favour of the writ petitioner. As far as the claim of the petitioner for family pension under the Pension Regulations came into effect from 01.09.1998 is concerned, the issues are no more res integra.

6. The learned counsel for the petitioner made a submission that in respect of writ petition filed in W.P.No.5872 of 2013 by the Union, this Court passed an interim order dated 18.03.2013, to grant family pension to legal heirs of the deceased employee under 1998 regulations.

7. The learned counsel for the respondents objected the said contentions by stating that the facts are incomparable and the said interim order cannot be a ground to grant the relief in the main writ petition.

8. It is needless to state that the interim orders would be in force till further orders are passed in Court proceedings and if final orders are passed in the writ petition, then the interim order would not confer any right on the parties to claim any relief. Thus, based on the interim orders right conferred in a final order, which is passed after complete adjudication of issues. Interim orders are normally passed by the Courts only on prima facie submissions and therefore, such interim orders need not be followed or considered at the time of passing final orders in the writ petition. This being the scope of interim order, the contentions raised by the petitioner is that pursuant to the interim orders, the family pension is to be granted deserves no merit consideration.

9. This Court has elaborately considered the issues with reference to the provisions of the regulations in W.P.No.10677 of 2015 and the judgment was delivered on 12.09.2022 and the relevant paragraphs are extracted here under:

“Analysis:

20. Considering the arguments as advanced between the respective learned counsels appearing on behalf of the parties to the lis on hand, let us consider the scope and application of the Tamil Nadu State Transport Corporation Employee’s Pension Fund Rules.

21. In the context of the provisions enumerated in the TNSTCEPF Rules, the eligibility of an employee is to be considered to form an opinion regarding the entitlement by applying the ‘Golden Rule’ of interpretation.

22. The Statutes are to be interpreted according to grammatical and ordinary sense of the word in grammatical or liberal meaning unmindful of consequences of such interpretation. It was the predominant method of reading Statutes. More often than not, such grammatical and literal interpretation leads to unjust results, which the Legislature never intended. The ‘Golden Rule’ of giving undue importance to grammatical and literal meaning of late gave place to ‘rule of legislative intent’. The world over, the principle of interpretation according to the legislative intent is accepted to be more logical. When the law to be applied in a given case prescribes interpretation of Statute, the Court has to ascertain the facts and then interpret the law to apply to such facts. Interpretation cannot be in a vacuum or in relation to hypothetical facts. It is the function of the legislature to say what shall be the law and it is only the Court to say what the law is.

23. That exactly is the principles of ‘Golden Rule’ interpretation enumerated by the Honourable Supreme Court of India in the case of National Insurance Company Limited Vs. Laxmi Narain Dhut reported in [(2007) 3 SCC 700], the Apex Court of India referred the case of Kehar Singh Vs. State (Delhi Administration), held as follows:

“18. During the last several years, the “golden rule” has been given a goby. We now look for the “intention” of the legislature or the “purpose” of the statute. First we examine the words of the statute. If the words are precise and cover the situation on hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We took at the mischief’s which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.”

24. Keeping in mind the above principles, let us now attempt to interpret the subject Rules, Tamil Nadu Transport Corporation Pension Fund Rules. As per Rule 2(c) ‘Beneficiary’ shall include a member as defined under the rules. ‘Member’ is defined in Rule 2 (i) shall be a regular employee, who is eligible to be a member under the rules. Therefore, ‘Member’ shall mean a regular employee, who must be eligible to be a member under the rules. Twin conditions are fixed to become a member under the TNSTCEPF Rules. Firstly, a regular employee is a member under Rule 2 (i) of TNSTCEPF Rules and such member must be eligible to be a member under the said Rules. Therefore, an employee shall not only be a member, but also to be an eligible member under the Pension Rules.

25. Let us consider the definition of ‘Eligible Members’ under Rule 2 (q) means an employee, who is eligible to join the Pension Fund of Tamil Nadu State Transport Corporation Employees’ Pension Fund. Therefore, an employee, who is eligible to join the Pension Fund scheme became an ‘Eligible Member’ under the Rule 2 (q) of the TNSTCEPF Rules.

26. The above definitions contemplated under the TNSTCEPF Rules unambiguously stipulates that a ‘Member’ shall mean regular employee alone. A regular employee is an employee, who is working in a sanctioned post in a time scale of pay, whose services were regularised as per the Service Rules in force. A consolidated pay salary employee or the daily wage employee or a casual employee cannot be construed as a regular employee within the definition of a ‘Member’ under Rule 2 (i) of the Pension Rules.

27. It is needless to state that once an employee became a ‘Member’ within the definition of Rule 2 (i) of the Pension Rules, then alone the question of calculation of services would arise. Even then, let us consider, whether there is any scope for including the employee, who paid the Provident Fund and served as consolidated pay employee or casual daily wage employee. It is not in dispute that temporary and casual employees and the consolidated pay employees pay Provident Fund from their salary. The said Provident Fund is collected under the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. Section 6 (A) of the said Act contemplates Employees’ Pension Schemes. Therefore, the daily wage employees and consolidated pay salary employees are provided with the benefit of the employees Pension Scheme under Rule 6 (A) of the Employees Provident Fund Miscellaneous Provisions Act, 1952.

28. The question arises, whether the services of the consolidated pay salary employees, and casual, daily wage services rendered by the employees are to be taken into consideration for the purpose of reckoning the qualifying services for bringing them under the New Pension Scheme by the 2nd respondent / Trust. The contention of the writ petitioner in this regard is that the counting of the petitioner’s services only from her date of regularisation is erroneous. The services of the writ petitioner are to be counted from the date of enrolment as a member of the Pension Fund Scheme for calculating pensionable services under the Tamil Nadu State Transport Corporation Employees Pension Fund Rules. In this context, the petitioner relied on Rule 2 (p) (iii) of the Pension Rules.

29. Rule 2(o) defines ‘Contributory Service’ means the period of ‘Actual Service’ rendered by the member for which the contributions to the Fund have been received. Rule 2 (p) defines, ‘Actual Service’ and Sub-Clause (i) to Rule 2 (p) stipulates that ‘In respect of employees taken over at the time of nationalisation during 1972, the date of the individual becoming regular employee with the taken over operators will be reckoned for calculation of pensionable service, provided they have been absorbed with continuity of service’. Rule 2 (p)(ii) stipulates that ‘In respect of all other employees the date of regular employment are becoming the members of the Employment Provident Fund in the STU will be reckoned for the calculation of pensionable service’.

30. Therefore, ‘Contributory Service’ means the period of ‘Actual Service’ rendered by a member for which the contributions to the fund have to be received. Thus, if ‘Contributory Services’ are to be reckoned for calculation of qualifying services, then the period of ‘Actual Services’ rendered by the member and, for such services, the contributions could have been received by the 2nd respondent / Trust. The criteria’s contemplated under Rule 2 (o) are unambiguous. Definition of ‘Contributory Service’ is the period of ‘Actual Service’ rendered and the contributions for the ‘Actual Services’ must have been received by the 2nd respondent for the purpose of considering the ‘Contributory Services’ of the employees.

31. Rule 2 (p) (i) defines ‘Actual Services’ means ‘In respect of employees taken over at the time of nationalisation during 1972, the date of the individual becoming regular employee’. Thus, the employee must have been taken over at the time of nationalisation during the year 1972, and he must be a regular employee. Then alone the said ‘Actual Service’ will be considered as ‘Contributory Service’ under Rule 2 (o). Pertinently, Rule 2 (o) and Rule 2 (p) are to be read together for the purpose of understanding the definition of ‘Contributory Service’, which shall be taken into consideration, in the context of ‘Actual Service.

32. Importantly, the petitioner relied on Rule 2 (p) (iii) of the TNSTCEPF Rules, which stipulates that ‘the date of regular employment or becoming member of the Employee’s Provident Fund in the STU’s will be reckoned for the calculation of pensionable service’.

33. In this context, Rule of Ejusdem Generis is relevant and the Hon’ble Supreme Court of India, in the case of Lokmat Newspapers Private Limited Vs. Shankarprasad reported in [Manu/SC/0405/1999], held as under:

‘When particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified. This rule which is known as the rule of ejusdem generis reflects an attempt ‘to reconcile incompatibility between the specific and general words in view of the other rules of interpretation that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute are presumed to be superfluous.’

34. Significantly Sub-Clause (iii) to Rule 2 (p) contemplates all other employees the date of regular employment is to be taken into consideration or becoming member of the Employee’s Provident Fund in the STU. The word ‘or’ disjunctive word cannot be used for the purpose of defeating the entire purpose and object of the Pension Rules. No doubt, the literal meaning would provide a meaning that an employee becoming the member of the Employees Provident Fund in the STU, the said services to be reckoned for calculation of pensionable service. However, such employee must be a member and a regular employee within the Rules.

35. Any phraseology cannot be interpreted in isolation or in counter to the other provisions of the Act. Cogent understanding of the entire purpose and object of the pension Rules is to be taken into consideration for the purpose of forming a final opinion. Therefore, the first phraseology in Rule 2 (p) (iii) of TNSTCEPF Rules unambiguously stipulates that all other employees, the date of regular employment or regular employee. The second phraseology ‘or’ becoming the member of the Employees Provident Fund in the STU would include the regular employees, who were the member of the Employees Provident Fund in the STU. The legislative intention is to ensure that all the regular employees and also the regular employees, who became the member of the Employees Provident Fund in the STU’s are covered under the Pension Rules. However, the Rule does not intend, so as to include daily wage casual employees and the consolidated salary employees, who became the member of the Employees Provident Fund Scheme under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. It was clarified by the 2nd respondent that they have not received any contributions from the writ petitioner. Therefore, the Pension Rules did not include the casual daily wage employees and the consolidated pay salary employees.

36. Rule 2 (q) defines ‘Eligible Members’ means an employee who is eligible to join the Pension Fund of Tamil Nadu State Transport Corporation Employees’ Pension Fund (TNSTCEPF)’. Therefore, an ‘Eligible member’ must be eligible to join the Pension Fund. The eligibility criteria has been unambiguously stipulated in Rule 2 (i) as ‘Member’ shall mean a regular employee. Even Rule 2 (i) contemplates that ‘In respect of employees taken over at the time of nationalisation during, 1972, the date of the individual becoming regular employee with the taken over operators will be reckoned’. Thus, the intention of the Rule makers are unambiguous that a member must be a regular employee and even for deciding the ‘Actual Service’ and for calculating the pensionable service, the employee must be a regular employee and the services rendered must be regular services.

37. Again, Rule 2 (r) defines ‘Existing Member’ means an existing employee, who is a member of the Employee’s Family Pension Scheme, 1971 or in regular roll of the STU’s or institutions authorised by the Government of Tamil Nadu. Therefore, as far as the employees of the Transport undertakings are concerned, a regular employee in the regular roll alone will be considered as ‘Existing Member’ under Rule 2 (r) of the Pension Fund Rules.

38. Rule 2 (v) defines ‘Pensionable Services’ rendered by a member for which the contributions has been received.

39. Cogent reading and understanding of the definitions elaborately enumerated in various Sub-Clauses under Rule 2 of the Pension Fund Rules, it is unambiguous that a ‘Member’ must be a regular employee and the contentions of the petitioner that Rule 2 (p)(iii) makes the temporary services of the petitioner as eligible, cannot be considered, since the said Clause cannot be read in isolation with the other Clauses, which defines the ‘Member’, ‘Eligible Member’, ‘Existing Member’, ‘Contributory Services’ etc. Collective reading of the entire definitions and Clauses under Rule 2 of TNSTCEPF Rules would clarify that only a regular employee is eligible to become a member regarding the regular services rendered by such employee, which is to be taken into consideration for the purpose of calculating the pensionable services.

40. Part III of the Pension Fund Rules deals with ‘Membership’. Rule 8 contemplates ‘The Pension Scheme is applicable to all the employees of the establishments, who are on rolls as on 01.09.1998 or employed after that date and also members of the Employee’s Provident Fund Scheme’. Under Rule 8, all the employees of the establishments, who all are on rolls as on 01.09.1998, indicates that, the employee must be in regular roll as on 01.09.1998. The employees employed after 01.09.1998 also eligible to become a Member under the Pension Scheme, if they are the members of the Employees’ Provident Fund Scheme, and they are regular employees.

41. Part IV deals with ‘Contributions’. The initial contribution of the Pension Fund Trust are also enumerated.

42. In view of the definition of ‘Member’, ‘Contributory Service’, ‘Actual Service’, ‘Eligible Members’, ‘Existing Members’, ‘Pensionable Service’ etc., this Court without any hesitation, formed an opinion that the regular employees in the regular roll are eligible for availing the benefit of the Tamil Nadu State Transport Corporation Employees Pension Fund Scheme. The employees engaged on daily wage basis, consolidated pay and temporary services, who all are not regular employees of the Transport Corporations are not entitled to become a member of the Tamil Nadu State Transport Corporation Employees Pension Fund Scheme.

43. When the consolidated pay employees, daily wage employees or temporary employees are not eligible to become the members of the New Pension Fund Scheme, their temporary services cannot be taken into consideration for the purpose of reckoning the qualifying services along with their regular services.

44. That apart, Rule 8 (a), which was inserted by way of an amendment vide G.O.Ms.No.10, Transport (D) Department, dated 18.02.2005 contemplates that ‘However, this Pension Scheme is not applicable to the employees recruited in the State Transport Undertakings on or after 01.04.2003 since such employees are covered under Contributory Pension Scheme’. In the present case, the writ petitioner was regularly appointed and her services were regularised admittedly on 07.09.2006. Therefore, the writ petitioner is eligible to become the member of the Tamil Nadu State Transport Corporation Employees Pension Fund Scheme only with effect from the date of regular appointment / regularisation on 07.09.2006. Since the writ petitioner was regularly appointed after 01.04.2003, which is the cut~off date, she is covered under the Contributory Pension Scheme and therefore, not entitled to avail the benefit of the Tamil Nadu State Transport Corporation Employees Pension Fund Scheme. As far as the Pension Fund Contribution of the writ petitioner is concerned, she is entitled to get back by filing an appropriate application before the competent authorities, which is not disputed by the respondents.

45. In respect of the orders relied on by the petitioner, the interpretation of the Pension Fund Rules were not undertaken by the Court. When the Rules with its object and interpretation in entirety were not considered by the Courts in earlier judgments, there is no impediment for this Court to consider the entire provisions for the purpose of understanding the scope of Pension Fund Rules and therefore, the said judgments are of no avail to the writ petitioner. The judgments passed without considering the scope of the Rules by applying the principles of ‘Golden Rule’ of interpretation, then the said judgments of the Courts need not be followed as precedent, so as to grant the relief or to decline the relief. Thus, those judgments have denuded to loose its status as precedent as various provisions of the Pension Fund Rules were not taken into consideration for the purpose of ascertaining the eligibility of an employee to become a member of the Pension Fund Rules.

46. In the above context, the following Rulings are relevant:

(a) The Honourable Division Bench of this Court in the case of Director of Sericulture Department Vs. K.Kumar reported in [2015 (4) CTC 241], considered the binding nature of the orders, relying on the judgment of Honourable Supreme Court, which reads as under:

“34. It is true that consistency helps the parties to a litigation to know where they stand. But, when it is brought to the notice of the Court that on most of the earlier occasions, several similarly placed employees obtained orders at the stage of admission, on the ground that the issue is already covered by a decision of this Court and that it was only in this manner that several employees got a benefit that was not legitimately due to them, the Court cannot shut its eyes and choose to prefer maintenance of discipline rather than upholding public interest.

35. As a matter of fact, the greatness of the Court lies only in its courage and ability to correct its mistakes. Justice is more precious than discipline. This was the principle that the Supreme Court highlighted in A.R.Antulay vs. R.S.Nayak [AIR 1988 SC 1531]. It was observed in the said decision that “in rectifying an error, no personal inhibitions should debar the Court because no person should suffer by reason of any mistake of the Court.“ The Supreme Court focused on the elementary rule of justice that no party should suffer due to the mistake of the Court. Therefore, this Court should not feel shackled either by the rules of procedure or by the principles of propriety, when it is so glaring that a gross injustice has been done to the State (1) by writ petitions getting allowed at the stage of admission and (2) by getting those orders implemented under threat of contempt. This is especially so when the earliest decision that was followed in all other cases, did not decide the scale of pay to be granted for Selection and Special Grades. Hence, the second contention of the writ petitioners is also liable to be rejected.

41. In Union of India v. Kartick Chandra Mondal [(2010) (2) SCC 422], the Supreme Court, relying upon its previous decisions in various cases including the one in State of Bihar v. Upendra Narayan Singh [(2009) 5 SCC 69], held that Article 14 is a positive concept and that it cannot be enforced in a negative manner. The Court further held that if an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others

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cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. Interestingly, the decision of the Supreme Court in Kartick Chandra Mondal was subsequent to the decision in Maharaj Krishan Bhatt and the decision in Maharaj Krishan Bhatt is also referred to in Kartick Chandra Mondal.” (b) The Honourable Supreme Court of India in the case of Basawaraj and Another Vs. Special Land Acquisition Officer reported in [(2013) 14 SCC 81], held as follows: ‘It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provisions does not envisage negative equality but has only a positive aspect. Thus, is some other similarly situated persons have been granted some relief / benefits inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or Court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order’. Conclusion: 47. The petitioner became eligible to be a member of the Tamil Nadu State Transport Corporation Employees Pension Fund Scheme only with effect from her date of regular appointment / regularisation on 07.09.2006. The petitioner admittedly retired from service on 31.03.2013. Therefore, she had not completed the qualifying services of ten years for the purpose of getting superannuation pension under Rule 16 (a) (i) of the Pension Fund Rules and thus, the petitioner is not entitled for the relief as such sought for in the writ petition. 48. Accordingly, the Writ Petition stands dismissed. No costs. 10. In respect of the present writ petition, the services of the deceased employee was regularised with effect from 01.09.2005 and therefore, he is entitled to get the benefits under the New Contributory Pension Scheme and the respondents are directed to settle all the eligible benefits under the New Contributory Pension Scheme within a period of twelve (12) weeks from the date of receipt of a copy of this order. 11. With these observations, the Writ Petition stands disposed of. No costs.
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