Madras High Court
N.Vittal Raj vs The Tamil Nadu State Transport ... on 9 August, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P.(MD)No.20295 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.08.2024
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD)No.20295 of 2022
N.Vittal Raj ... Petitioner
vs
1.The Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Rep. by its Managing Director,
Kumbakonam – 612 001.
2.The General Manager,
The Tamil Nadu State Transport Corporation,
(Kumbakonam) Limited,
Nagapattinam Region,
Nagapattinam District.
3.The Administrator,
The Tamil Nadu State Corporation Employees Pension
Fund Trust,
Thiruvalluvar Illam,
Pallavan Salai, Chennai. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a writ of Declaration, declaring the action of the respondents in treating
the petitioner's service from 11.10.1996 to 25.05.2004 as non-pensionable
service as illegal, arbitrary and consequently direct the respondents to count
entire service of the petitioner from 16.07.1984 to 30.04.2018 including the
period from 11.10.1996 to 25.05.2004 for the purpose of calculation of monthly
pension, commuted value of pension and other terminal benefits and further
directing the respondents to pay the necessary Employer's Provident Fund
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1/11
W.P.(MD)No.20295 of 2022
Contribution for the said period from 11.10.1996 to 25.05.2004 to the 3rd
respondent trust and directing the respondents to pay the petitioner, the
difference in pension and commuted value of pension and all other terminal
benefits with arrears along with interest at the rate of 6% per annum from the
date of his retirement to till the date of disbursement.
For Petitioner : Mr.A.Rahul
For Respondents : Mr.K.Jagadees Balan
Standing Counsel for R1 and R2
Mr.S.C.Herold Singh
Standing Counsel for R3
* * * * *.
ORDER
The instant writ petition has been filed by a retired Senior Driver of the
respondents transport corporation seeking a declaration that the exclusion
period between the date of dismissal and date of the award as non-pensionable
service is illegal, arbitrary. The petitioner has further sought for a direction to
the respondents to count to the said period for the purpose of calculation of
monthly pension, commuted value of pension and other terminal benefits. The
petitioner has further prayed for a direction to the respondents to pay the
necessary Employer's Provident Contribution for the said period to the third
respondent trust and pay the difference in pension and commuted value of
pension along with 6% interest per annum.
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2.The petitioner was dismissed from service on 11.10.1996. The
petitioner has challenged the said order of the dismissal in I.D.No.14 of 1997
before the Labour Court, Cuddalore. The Labour Court, Cuddalore was pleased
to pass an award on 23.03.2004, declaring the termination as invalid and
directed the respondent transport corporation to reinstate the petitioner with
continuity of service. However, the back wages for the period from 11.10.1996
till 23.03.2004 was rejected to the petitioner.
3.Even though, the award was passed on 23.03.2004, the petitioner was
not reinstated. On 19.03.2013, a settlement was arrived at under Section 18(1)
of the Industrial Disputes Act, 1947. As per the terms of said settlement, the
Management agreed to reinstate the petitioner with continuity of service and
without back wages from 11.10.1996 to 23.03.2004 and with 70% of the back
wages from 24.03.2004 till the date of joining duty as driver by virtue of the
settlement.
4.The petitioner had attained superannuation on 30.04.2018. At the time
of fixing the terminal benefits, the respondent corporation had excluded the
period between 11.10.1996 and 23.03.2004 for calculating pensionable service
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on the ground that during the said period, no wages were paid to the writ
petitioner. This action on the part of the respondent corporation has forced the
writ petitioner to file the present writ petition seeking a declaration.
5.The learned Counsel appearing for the writ petitioner had relied upon
the Judgement of the Hon'ble Division Bench of our High Court in
The Management of Tamil Nadu State Transport Corporation Limited Vs.
The Special Duty Commissioner of Labour and others in W.A.(MD)No.2302
of 2021 dated 03.02.2022 and contend that in all cases, where back wages are
denied, the said concession cannot be stretched to the extent that the said period
is to be counted as non-pensionable service. Even the period during which the
petitioner was not receiving the back wages, either due to the Court orders or
due to the concession given by the concerned workmen, the said period cannot
be excluded from pensionable service, unless there is a specific Court order.
6.The respondent corporation has filed a counter, paragraph No.6 is
extracted as follows:-
6.“It is submitted that now petitioner file this petition to include
the No Back wages period for pensionable service. As per the
terms of continuity service that past service period from the
date of appointment to dismissal is taken into account for
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pension calculation and for the course of No Back wages period
that employee's wages settlement benefits were provided to the
petitioner and the respective basic pay was re-fixed.
Here that No Back wages period is not consider to
calculate the pensionable service. Since for that period this
petitioner have no employee provident fund contribution and so
that respective employer contribution also not arises
automatically.
1. In this condition for No Back wages period that
employer contribution was not remitted to the Pension Trust
from Transport Corporation. Based on the technical reason
only that period not taken into the amount of pension
calculation.
2. Based on this technical reason only that period not
taken into the account for pension calculation. The above
matter clearly mentioned in the Pension Trust Rules 13(c) and
mentioned below.
"13. DETERMINATION OF ELIGIBLE SERVICE
c) If there is any non-contributory period during the service, it
shall not be counted for arriving the actual service."
7. I have carefully considered the submissions made on either side and
perused the materials available on record.
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8.The issue is no longer remains res integra, the Hon'ble Division Bench
in Judgment in The Management of Tamil Nadu State Transport Corporation
Limited Vs. The Special Duty Commissioner of Labour and others in W.A.
(MD)No.2302 of 2021 dated 03.02.2022, the Paragraph (8) as held as follows:
“On conjoint consideration of the above leads to the conclusion
that, on the face of the approval petition of the appellant
Management qua the termination of service of the respondent
workman having been rejected by the competent authority by a
speaking order and further the said order having been confirmed
by this Court in writ petition and this writ appeal, the next
question is, what would be the consequence thereof. Since learned
Single Judge attempted to balance the equities between the
parties and for that purpose concession was given on behalf of
the workman that he forgoes the actual payment of arrears
towards back wages for the said period, We find that, the said
concession can not be stretched to the extent that the said period
is to be counted as non pensionable service. The Management can
not be heard contending that, in absence of any actual payment of
arrears, there will not be any payment to Pension Trust Fund and
that is how that period has to be excluded as non-pensionable
service. We are of the view that the concession on behalf of the
workman can not be understood to that extent. As noted in order
dated 01 December 2021, at one stage, we had also thought of
relieving the workman from that concession, however it would
result in additional liability on the public exchequer, therefore we
have thought it proper not to do so. This is because, even if it
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would not have been on the basis of concession, but on the basis
of adjudication by the competent court, it can not be said that the
period during which the workman was not in actual employment
will automatically be excluded from consideration as non-
pensionable service. Once the action of the Management is held
to be illegal, the said action is illegal for all purposes and for all
consequences. In a given case, either Labour Court or the Writ
Court, in the facts of the case may exercise discretion, on
permissible parameters, of granting/ not granting back wages but
exercise of that power under no circumstances can be read as
exclusion of that service as non-pensionable service as sought to
be canvassed on behalf of the appellant Management. We make it
clear that even in those cases, where back wages is not granted
for valid reason, the very fact that the termination was held to be
illegal, the period during which the workman had remained out of
employment for no fault attributable to him, has to be counted as
pensionable service unless it is so specifically ordered / provided
by the Court. Even with the aid of stipulation 10 e as quoted
above, permitting the Management or the Pension Trust to
exclude the said period as non pensionable service would result
in acceptance of the said termination to be valid for limited
purpose which is already held to be illegal. No one can be
permitted to take advantage of / benefited from his own wrong.
The workman can not be asked to suffer, for not being in the
employment for the fault of his employer. Keeping this in view, we
find that, harmonious reading of all the decisions relied by
learned advocate for the Pension Trust would lead to this
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conclusion only. So far financial constraints are concerned, it is a
matter to be reconciled by the Pension Trust and the Management
of the respective Transport Corporations. Such administrative
difficulties can not be permitted to be stretched to the extent of
reduction of pension for no fault on the part of the workman.”
9.In view of the Judgment of the Hon'ble Division Bench, it is clear that
in all cases, where the back wages are denied to the workmen either by the
Court orders or by way of concession, the same cannot be stretched into such an
extent that the said period can be excluded from calculating the pensionable
service.
10.In the present case, the award of the Labour Court clearly reveals that
the petitioner has been conferred with continuity of service which has been
accepted by the Management under 18(1) settlement of the Industrial Disputes
Act.
11.In the said circumstances, if the said period is treated as a
non-pensionable service, then it would amount to legalising the illegal orders of
termination passed by the Management.
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12.Therefore, this Court is of the considered opinion that the writ
petitioner is entitled to calculate the period between 11.10.1996 and 23.03.2004
as pensionable service. The respondent transport corporation is directed to
reckon the said period also, even though the petitioner has been denied the back
wages. The transport Corporation is also directed to remit their share of the
contribution to the petitioner trust and thereafter, disburse all the consequential
benefits to the writ petitioner within a period of eight weeks from the date of
receipt of a copy of this order. The arrears of pensionary benefits and the
gratuity benefits will carry interest at the rate of 6% from the date of
superannuation till the date of realization.
11.With the above said observations, this writ petition stands allowed. No
costs.
09.08.2024
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
RJR
To
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1.The Managing Director,
The Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Kumbakonam – 612 001.
2.The General Manager,
The Tamil Nadu State Transport Corporation,
(Kumbakonam) Limited,
Nagapattinam Region,
Nagapattinam District.
3.The Administrator,
The Tamil Nadu State Corporation Employees Pension
Fund Trust,
Thiruvalluvar Illam,
Pallavan Salai, Chennai.
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR, J.
RJR
09.08.2024
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