Madras High Court

D.Sigamoni vs The Secretary To Government on 20 June, 2025

Author: C.Saravanan

Bench: C.Saravanan

                                                                                         W.P.Nos.20524 to 20526 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                        Reserved On                               12.03.2025
                                      Pronounced On                                20.06.2025

                                                              Coram

                                   THE HONOURABLE MR.JUSTICE C.SARAVANAN

                                         W.P.Nos.20524, 20525 & 20526 of 2014
                                      and M.P.No.1 of 2014 in W.P.No.20524 of 2014
                                      and M.P.No.1 of 2014 in W.P.No.20525 of 2014
                                      and M.P.No.1 of 2014 in W.P.No.20526 of 2014

                    D.Sigamoni
                                                                    ...Petitioner in W.P.No.20524 of 2014
                    M.Arumugam
                                                                    ...Petitioner in W.P.No.20525 of 2014
                    G.Krishnamoorthy
                                                                    ...Petitioner in W.P.No.20526 of 2014

                                                              Versus
                    1.The Secretary to Government,
                      Transport Department,
                      Fort St.George, Chennai – 600 009.

                    2.The General Manager,
                      Tamil Nadu State Transport,
                          Corporation (Coimbatore),
                      Coimbatore – 641 043.

                    3.The Administrator,
                      Tamil Nadu State Transport Employees,
                      Pension Trust, Pallavan House,
                      Pallavan Salai, Chennai – 600 002.

                                                                                     ...Respondents in all W.Ps

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                                                                                        W.P.Nos.20524 to 20526 of 2014




                    Prayer in W.P.No.20524 of 2014:
                              Writ Petition filed under Article 226 of the Constitution of India
                    praying for issuance of a writ of certiorarified mandamus calling for the
                    records          of       the          3rd           Respondent                 in        Letter
                    No.44/P2/Tha.Aa.Po.Ka.U.O.Ni.Po/2013-880 dated 06.12.2013 peruse and
                    to quash the same and also, to direct the 2nd and 3rd Respondents to include
                    the company trainee period i.e., from 01.12.1982 to 31.01.1984 while
                    calculating pensionable period and give arrears of pension amount to the
                    petitioner.


                    Prayer in W.P.No.20525 of 2014:
                              Writ Petition filed under Article 226 of the Constitution of India
                    praying for issuance of a writ of certiorarified mandamus calling for the
                    records          of       the          3rd           Respondent                 in        Letter
                    No.44/P2/Tha.Aa.Po.Ka.U.O.Ni.Po/2013-880 dated 06.12.2013 peruse and
                    to quash the same and also, to direct the 2nd and 3rd Respondents to include
                    the trainee period i.e., from 19.04.1982 to 30.04.1984 while calculating
                    pensionable period and give arrears of pension amount to the petitioner.


                    Prayer in W.P.No.20526 of 2014:
                              Writ Petition filed under Article 226 of the Constitution of India
                    praying for issuance of a writ of certiorarified mandamus calling for the
                    records          of       the          3rd           Respondent                 in        Letter
                    No.44/P2/Tha.Aa.Po.Ka.U.O.Ni.Po/2013-880 dated 06.12.2013 peruse and


                    2/23




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                                                                                         W.P.Nos.20524 to 20526 of 2014

                    to quash the same and also, to direct the 2nd and 3rd Respondents to include
                    the trainee period i.e., from 18.06.1982 to 01.08.1984 while calculating
                    pensionable period and give arrears of pension amount to the petitioner.

                    For Petitioner in all W.Ps                     :        No Appearance

                    For Respondent – 1 in all W.Ps                 :        Mr.G.Prasanna,
                                                                            Government Advocate

                    For Respondents – 2 & 3 in both W.Ps:                   No Appearance



                                                   COMMON ORDER

Today, these Writ Petitions were taken up for consideration. There is

no representation on behalf of the Petitioners.

2. Since the Petitioners herein are senior citizens, whose cause is

going un-presented, I am inclined to consider the case on merits after

examining the records and considering the arguments of the learned

Government Advocate for the 1st Respondent.

3. These Writ Petitions have been filed for the relief detailed

hereunder:

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S.No. Name of the Writ Prayer in the Writ Petitions Petitioner Petition No. 1 D.Sigamani 20524 of For issuance of a writ of 2014 certiorarified mandamus calling for the records of the 3rd Respondent in Letter No.44/P2/Tha.Aa.Po.Ka.U.O.Ni.Po/ 2013-880 dated 06.12.2013 peruse and to quash the same and also, to direct the 2nd and 3rd Respondents to include the company trainee period i.e., from 01.12.1982 to 31.01.1984 while calculating pensionable period and give arrears of pension amount to the petitioner.

2 M.Arumugam 20525 of For issuance of a writ of 2014 certiorarified mandamus calling for the records of the 3rd Respondent in Letter No.44/P2/Tha.Aa.Po.Ka.U.O.Ni.Po/ 2013-880 dated 06.12.2013 peruse and to quash the same and also, to direct the 2nd and 3rd Respondents to include the trainee period i.e., from 19.04.1982 to 30.04.1984 while calculating pensionable period and give arrears of pension amount to the petitioner.

3 G.Krishnamoorthy 20526 of For issuance of a writ of 2014 certiorarified mandamus calling for the records of the 3rd Respondent in Letter No.44/P2/Tha.Aa.Po.Ka.U.O.Ni.Po/ 2013-880 dated 06.12.2013 peruse and to quash the same and also, to

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S.No. Name of the Writ Prayer in the Writ Petitions Petitioner Petition No. direct the 2nd and 3rd Respondents to include the trainee period i.e., from 18.06.1982 to 01.08.1984 while calculating pensionable period and give arrears of pension amount to the petitioner.

4. The Petitioners were employees of the State Transport Corporation

who have approached this Court long after their retirement.

5. The point for consideration in these Writ Petitions is whether the

request of the Petitioner(s) for including the period undergone by them

during the training was to be reckoned for determining their pensionary

benefits. The 3rd Respondent vide Orders dated 06.12.2013 rejected the

request of the Petitioner(s) (hereinafter referred to as the 'Impugned Order').

Aggrevied by the same, the Petitioners have filed these Writ Petitions.

6. The Impugned Orders dated 06.12.2013 in these Writ Petitions

read identically. For the sake of convenience and clarity, the text of the

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Impugned Order dated 06.12.2013 in W.P.No.20524 of 2014 is reproduced

below:

“ghh;itapy; fhQqk; j';fspd; 7/11/2013 ehspl;l kDtpy;. Xa;t{jpaj;jpw;fhd gzpf;fhyj;ij fzf;fpLk;nghJ gapw;rpf;fhyj;ija[k; nrh;j;J KG bgd;rd; tH';f nfhhpa[s;sPh;fs;/ muR tpsf;ff;fojj;jpd;go gapw;rp fhyj;ij Xa;t{jpaj;jpw;F vLj;Jf;bfhs;s ,ayhJ vd;gJ bjhptpj;Jf;bfhs;sg;gLfpwJ/”

7. The case of the Petitioners is that these Petitioners have

contributed to the monthly Provident Fund even during their training period

at service at the Respondent Department and that only the balance amount

was paid to them. The further case of the Petitioners is that the Petitioners'

services were subsequently regularized and they retired from service after

they attained the age of superannuation. However, when the pensionable

service of the Petitioners was calculated by the 2nd and 3rd Respondents, the

training period undergone by the Petitioners was not taken into account.

8. The Petitioners have placed reliance on the decision of this Court

vide Judgment dated 25.08.2010 in Tamil Nadu State Transport

Corporation (Madurai) Ltd. & Anr. Vs. Periyasamy Pitchaimuthu in

W.A.(MD)No.387 of 2010.

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9. The date of regularization of service of the Petitioners, date of

joining of the Petitioners in service as 'Trainee', service period of the

Petitioners and date of retirement of the respective Petitioners are tabulated

below:-

Sl.No. Writ Name of the Date of Date of Service Date of Petition Petitioners Regularizat Joining in Period Retirement No. ion Service 1 20524/2014 D.Sigamani 01.02.1984 01.12.1982 30 Years 31.03.2013 3 Months 2 20525/2014 M.Arumugam 01.05.1984 19.04.1982 31 years 30.06.2013 3 20526/2014 G.Krishnamoorthy 01.08.1984 13.06.1982 28 years 30.09.2010

10. The learned Government Advocate for the 1st Respondent

submitted that in the Counter Affidavit filed in this Writ Petition, it has

been stated that the Petitioners were trainees until their service was

regularised and therefore, they are not entitled to include the period of

training for the purpose of computation of their pensionary benefits under

the Tamil Nadu Pension Rules, 1978.

11. A specific reference was made to the definition of “Employee” in

Section 2(e) of the Payment of Gratuity Act, 1972.

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12. It is submitted by the learned Government Advocate that as per

Section 2(e) of the Payment of Gratuity Act, 1972, “employee” means any

persons (other than an apprentice) employed on wages, not exceeding

Rs.25,000/- per month or such higher amount as the Central Government

may, having regard to the general level of the management, by notification

specifies in any establishment, factory, mine, oil field, plantation, Railway

company, or shop to do any skilled, semi skilled or unskilled, manual,

supervisory, technical, or clerical work, whether the term of such

employment are express or implied. It is therefore submitted that the

respective petitioners' pensionable service are only 29 years, training period

undergone by them is excluded.

13. It is further submitted by the learned Government Advocate that

two years period undergone by the respective Petitioners as trainees cannot

be included towards their “qualifying service” for the purpose of

calculation of “gratuity” and that only the period after the date of

regularization is relevant for computing the pension under the Tamil Nadu

State Transport Corporation Employees' Pension Fund Rules.

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14. Therefore, it is submitted by the by the learned Government

Advocate that the pensionable service of the respective Petitioners has to be

reckoned only from the date of regularization of the service of the

Petitioners and that the training period cannot be included for the purpose

of calculating pensionary benefits. Hence, prays for dismissal of these Writ

Petitions.

15. The learned counsel for the Respondents also drew the attention

of this Court to the Tamil Nadu State Transport Corporation

Employees' Pension Fund Rules and the Orders passed by this Court in

the following cases:

(i) M.Gunasundari Vs. Metropolitan Transport Corporation & Anr. (order dated 12.09.2022 in W.P.No.10677 of 2015)

(ii) M.R.Selvaraju Vs. The Tamil Nadu State Transport Corporation (Kumbakonam) Limited & Ors. (order dated 10.02.2023 in W.P.(MD).No.4887 of 2020)

(iii) The Tamil Nadu State Transport Corporation (Kumbakonam) Limited & Ors. Vs. M.R.Selvaraju (judgment dated 12.11.2024 in W.A.(MD).No.2202 of 2024)

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16. I have considered the arguments advanced by the learned

Government Advocate for the 1st Respondent and have also perused the

materials placed before this Court. I have examined the provisions of the

Employees' Provident Funds and Miscellaneaous Provisions Act, 1952, the

Payment of Gratuity Act, 1972, Tamil Nadu Pension Rules, 1978 and Tamil

Nadu State Transport Corporation Employees' Pension Fund Rules

(hereinafter referred to as “Rules”).

17. The Petitioners are covered by the aforesaid Rules as they are

admittedly the “Beneficiary” under the Rules. Rule 2(c) in Part I of the

aforesaid Rules defines the expression “Beneficiary”. Rule 2(i) of the

aforesaid Rules defines the expression “Member”. Rule 2(c) and 2(i) of the

aforesaid Rules reads as under:-

Rule 2(c) of the Tamil Nadu State Rule 2(i) of the Tamil Nadu State Transport Corporation Employees Transport Corporation Employees Pension Fund Rules Pension Fund Rules “Beneficiary” shall mean an individual “Member” shall mean a regular employee presently or prospectively eligible for a who is eligible to be a member under the benefit payable under the Rules and shall Rules and shall not include an employee, who include a member as hereinafter having been admitted as a member, has defined. subsequently retired or has ceased to be eligible for membership as hereinafter prescribed and includes the employee whose services have otherwise been terminated by reason of dismissal, resignation, retrenchment or otherwise. The STUs shall communicate

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Rule 2(c) of the Tamil Nadu State Rule 2(i) of the Tamil Nadu State Transport Corporation Employees Transport Corporation Employees Pension Fund Rules Pension Fund Rules the names of the new members to the Trustees within one month of their appointment and the details of ongoing employees shall also be furnished with in one month.

18. The expression “Member” excludes certain persons but includes

regular employees, who are eligible to be a member under the Rules. The

Petitioners are already receiving pension under the Rules. Therefore, the

Petitioners were regular employees of the 2nd Respondent Transport

Corporation.

19. The expression 'Employee' is defined in Section 2(e) of the

Payment of Gratuity Act, 1972. This definition has been referred in the

Counter Affidavit to justify the Impugned Order. The expression

'Employee' is defined differently under various labour legislations. For

instance, Section 2(f) of the Employees’ Provident Funds and

Miscellaneous Provisions Act, 1952 also defines the expression

“Employee”.

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20. The definition in Section 2(e) of the Payment of Gratuity Act,

1972 and Section 2(f) of the Employees’ Provident Funds and

Miscellaneous Provisions Act, 1952 are reproduced below:-

Section 2(e) of the Payment of Gratuity Section 2(f) of the Employees’ Provident Act, 1972 Funds and Miscellaneous Provisions Act,

(e) “employee” means any person (other (f) “employee” means any person who is than an apprentice) employed on wages, in employed for wages in any kind of work, any establishment, factory, mine, oilfield, manual or otherwise, in or in connection plantation, port, railway company or shop, with the work of an establishment, and who to do any skilled, semi-skilled, or unskilled, gets his wages directly or indirectly from manual, supervisory, technical or clerical the employer, and includes any person— work, whether the terms of such employment are express or implied, and (i) employed by or through a contractor whether or not such person is employed in in or in connection with the work of the a managerial or administrative capacity, but establishment;

does not include any such person who (ii) engaged as an apprentice, not holds a post under the Central Government being an apprentice engaged under the or a State Government and is governed by Apprentices Act, 1961 (52 of 1961), or any other Act or by any rules providing for under the standing orders of the payment of gratuity. establishment;

21. The expression “apprentice” is defined in Section 2(aa) of the

Apprentices Act, 1961. The definition of the expression “apprenticeship

training” is defined in Section 2(aaa) of the Apprentices Act, 1961. Section

2(aa) and Section 2(aaa) of the Apprentices Act, 1961 are reproduced

below:-

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Section 2(aa) of the Apprentices Act, Section 2(aaa) of the Apprentices Act, 1961 1961 (aa) “apprentice” means a person who is (aaa) “apprenticeship training” means a undergoing apprenticeship training in course of training in any industry or pursuance of a contract of apprenticeship; establishment undergone in pursuance of a contract of apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices;

22. Under Section 2(e) of the Payment of Gratuity Act, 1972 an

“apprentice” is not an employee. Under Section 2(f) of the Employees’

Provident Funds and Miscellaneous Provisions Act, 1952, any person who

is employed for wages in any kind of work, manual or otherwise, in or in

connection with the work of an establishment, and who gets his wages

directly or indirectly from the employer is an employee. The aforesaid

definition includes any person—

(i) employed by or through a contractor in or in connection with the work of the establishment;

(ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment;

23. Thus, only an apprentice engaged under the Apprentices Act,

1961 (52 of 1961) or under the standing orders of the establishment is not

an “employee” under the provision of the Employees’ Provident Funds and

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Miscellaneous Provisions Act, 1952. Even a person employed by or through

a contractor in or in connection with the work of the establishment is an

“employee” for the purpose of Section 2(f) of the Employees’ Provident

Funds and Miscellaneous Provisions Act, 1952.

24. Therefore, these definitions are not relevant for determination of

'Pensionary Benefits' under the aforesaid Rules, i.e.,

a) eligible service;

b) pensionable service

25. The expression “Pensionable service” is defined in Rule 2(v) of

the Rules. It reads as under:-

“2(v) “Pensionable service” means the service rendered by the member for which the contributions have been received”.

26. The decision rendered by this Court in W.P.No.10677 of 2015

vide order dated 12.09.2022 refers the definition of employee in Section

2(e) of the Payment of Gratuity Act, 1972. However, it is not applicable to

the facts of the present case as the Petitioners therein had not rendered

qualifying service for receiving pension. There, the Court dealt with a

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situation where the Petitioners therein were to be considered as Full

members to be eligible for pension under the said Rules and whether the

Training period undergone therein had to be reckoned for the purpose of

calculating “qualifying service” to be eligible for pension.

27. Relevant portion from the aforesaid decision of this Court in

W.P.No.10677 of 2015 is extracted below:-

“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.

...

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.”

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28. Part IV of the Rules deals with 'Pensionary Benefits'. As far as

the “determination of eligible service” and “determination of

pensionable service” are concerned, they are governed by Rules 13 & 14 of

the Rules in Part IV of the said Rules. Rule 13 of the aforesaid Rules deals

with Determination of Eligible Service while Rule 14 of the aforesaid

Rules deals with Determination of Pensionable Service.

29. For the sake of clarity, Rule 13 and Rule 14 of the Rules are

reproduced below:-

Rule 13 of the Tamil Nadu State Rule 14 of the Tamil Nadu State Transport Corporation Employees' Transport Corporation Employees' Pension Fund Rules Pension Fund Rules Determination of Eligible Service Determination of Pensionable Service.

a) The pensionable service of the member The eligible service shall be determined as shall be determined with reference to the follows: contribution received or are receivable on

a) In the case of a “New Entrant” entering his behalf in the Employees' Pension Fund, into service on or after 01.09.1998, the subject to the conditions stated in para 13.

“actual service” shall be treated as eligible The pensionable service shall be restricted service. The total actual service shall be to 30 years for the purpose of calculation of rounded off to the nearest year. The pensionary benefits. fraction of service for six months or more shall be treated as one year and the service b) If a member is eligible for pension under less than six months shall be ignored. any other scheme, pension payable under the scheme shall be calculated as follows:

b) In the case of the “existing member” as .....

on 01.09.1998, the aggregate of actual service as indicated para 2(p) shall be treated as eligible service.

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Rule 13 of the Tamil Nadu State Rule 14 of the Tamil Nadu State Transport Corporation Employees' Transport Corporation Employees' Pension Fund Rules Pension Fund Rules

c) If there is any non-contributory period during the service, it shall not be counted for arriving the actual service.

30. For the “determination of eligible service”, Clauses (b) and (c)

of Rule 13 of the Rules are relevant as these Petitioners were “existing

member” as on 01.09.1998. In the case of an 'existing member' as on

01.09.1998, the aggregate of 'Actual Service', as defined in paragraph 2(p),

is to be treated as “eligible service” under Rule 13(b) of the Rules.

However, any period of service rendered during a “non-contributory period”

can not be counted for arriving the “actual service”.

31. The expression “Actual Service” is defined in Rule 2(p) of the

Rules. Rule 2(p) of the aforesaid Rules reads as under:-

“p) The “Actual Service” as defined below shall be reckoned for calculating pensionable service.

(i) In respect of employee taken over at the time of nationalization 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 abosribed with continuity of service.

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(ii) In respect of erstwhile Tamil Nadu State Transport Department Employees, who were not eligible for pension for the service rendered in State Transport Department, such service will be counted taking a compassionate view for arriving pensionable service, provided they remit back service gratuity or any benefit in lieu of pension together with interest compounded annually calculated at the rate of interest declared for the members by the PF Trust of respective STUs for the respective years to provide pension for TNSTD service. In respect of erstwhile TNSTD employees who were eligible for pension for the service rendered in TNSTD, determination of their pensionable service and pension will be as per Rule 14(b).

(iii)In respect of all other employees, the date of regular employment or becoming the member of the Employee's Provident Fund in the STU will be reckoned for the calculation of pensionable service.

32. Thus, the date of regular employment or becoming the member of

the Employee's Provident Fund in the STU will be reckoned for the

calculation of pensionable service. Therefore, the Petitioners will be

governed by Sub Clause (iii) of the above definition of “Actual Service” in

Rule 2(p) of the aforesaid Rules.

33. The expression “Non-contributory service” is defined in Rule

2(t) of the Rules. As per Rule 2(t) of the Rules, “Non-contributory

service” is the period of “actual service” rendered by a member for whom

no contribution to the Pension Fund has been received or is receivable. As

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per Rule 2(o) of the aforesaid Rules, “contributory Service” means the

period of “Actual Service” rendered by the member for which the

contributions to the Fund have been received.

34. For the sake of clarity, Rule 2(t) & Rule 2(o) of the aforesaid

Rules are reproduced below:-

Rule 2(t) Rule 2(o) “Non-contributory service” is the period “Contributory service” means the period of “actual service” rendered by a member of “Actual Service” rendered by the for whom no contribution to the Pension member for which the contributions to the Fund has been received or is receivable.” Fund have been received.”

35. A reading of the definition of “Contributory Service” as defined

in Rule 2(o) of the aforesaid Pension Fund Rules makes it clear that it

means contributions made to the aforesaid Pension Fund by a member

during his/her period of “actual service”. In other words, an employee is a

member eligible for pension under the aforesaid Rules if contributions are

made by him/her during the period of “actual service” to the Provident

Fund.

36. Therefore, there is no doubt that the Petitioners are “eligible

members” for the purpose of calculation of pensionary benefits under the

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aforesaid Pension Rules if contributions was made by them. Further, it is

also made clear that the period in which the member has made contributions

to the Pension Fund is to be considered as “Actual Service” period and the

pensionable service is to be reckoned from such period wherein

contributions have been made by the members to the Pension Fund.

37. As per Rule 14 of the Rules, for the purpose of calculation of

pensionary benefits, the pensionable service of the member shall be

determined with reference to the contribution received or are receivable on

his behalf in the Employees' Pension Fund, subject to the conditions stated

in Rule 13 of the aforesaid Rules which is extracted above. However, the

pensionable service shall be restricted to 30 years.

38. A reading of the Affidavit filed in support of these Writ Petitions

indicates that contributions were received from the respective Petitioners

during the training period. The Respondents have also not denied the same

in their Counter Affidavit. Only a vague assertion has been made in

Paragraph No.3 of the Counter Affidavit. Paragraph No.3 of the Counter

Affidavit reads as under:-

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“3. It is submitted that the Petitioner averments in para-3 that from his salary from 01.12.1982, the Provident Fund contribution was deducted and his total years of Pensionable service is 30 years. But during that period he mentioned was only his training period and he was received only stipend and as per the Payment of Gratuity Act, 1972 Section 2(s) the apprentice is not a “workman”, only a trainee.”

39. Thus, a question arises as to whether an employee is eligible to

have the training period reckoned towards service if contributions were

received from the employee towards Pension fund under the Rules.

40. Therefore, this would require appreciation. Therefore, the

impugned communication of the 3rd Respondent is quashed and the case is

remitted back to the 3rd Respondent to ascertain as to whether the

contributions were indeed received from the Petitioners as there is no

finding on this aspect in the impugned communication and pass a fresh

order on merits and in accordance with law, as expeditiously as possible,

preferably, within a period of three months from the date of receipt of a

copy of this order.

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