IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.09.2010 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION NOS.4117, 4571 & 456 OF 2006, 31130 & 36941 OF 2005 & 10425 OF 2007 and connected Miscellaneous Petitions. 1. Tamil Nadu Arasu Pokkuvarathu Madurai Thozhilalar Sangam rep. by its President .. 1st Petitioner in WP.4117/06 and Petitioner in WP.4571/06 2. Amsavalli ... 2nd Petitioner in WP.4771/06 R.Akkamal ... Petitioner in WP.456/06 S.Thomaiarammal ... Petitioner in WP.31130/05 S.Elizabeth ... Petitioner in WP.36941/05 Chandramani ... Petitioner in WP.10425/07 Vs. 1. The Government of Tamil Nadu rep. by its Secretary Transport Department Fort St. George, Chennai – 9. ..1st Respondent in WPs.4117/06, 4571/06 & 31130/05 2. Tamil Nadu Transport Corporation Employees Pension Fund Trust rep. by its Administrator Thiruvalluvar House Pallavan Salai, Chennai – 2. ..2nd Respondent in WPs.4117, 4571/06, 31130/05, 3694/05 & 10425/05 3. Tamil Nadu State Transport Corporation (Madurai) Ltd., rep. by its Managing Director, Bye Pass Road, Madurai. ..3rd Respondent in WP.4117/06, 4571/06 & 456/06 The Deputy Secretary to the Government of Tamil Nadu, Transport Department, Fort St. George, Ch-09. ..1st Respondent in WP.36941/05,456/06, & 10425/07 The General Manager Tamil Nadu State Transport Corporation, Karaikudi - 623307. ..3rd Respondent in WP.31130/05 https://hcservices.ecourts.gov.in/hcservices/ The General Manager, Tamil Nadu State Transport Corporation, (Madurai) Ltd., Dindigul Region, Dindigul. ..3rd Respondent in WP.36941/05 The Managing Director, Tamil Nadu State Transport Corporation, Villupuram Division - I Ltd., Villupuram. ..3rd Respondent in WP.10425/07. Writ Petition No.4117 of 2006 filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records from the respondents pertaining to the orders in Letter No.5418/D/2004-4, dated 23.8.2004 of the first respondent, the order in Letter No.26/P2/TNSTCEPFT/2004- 2814, dated 27.8.2004 of the second respondent and the consequential order in Letter No.44/B2/TNSTCEPFT/2005/3458, dated 30.4.2005 of the second respondent, quash the same and consequently direct the respondents forthwith to pay monthly pension, commutation amount and family pension to the second respondent with arrears and interest, award costs. Prayer in WP.456/08, 31130/05, 36941/05 and 10425/07 : Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records of the first respondent in his proceedings Letter No.14362/D/2005-1, Ref.No.LR.No.9650/D/05, 14290/D/2005-1, Ref.No.22326/D/2006/2 and consequentially direct the first respondent to pay the family pension to the petitioner under the provisions of 20(3) (a) of the Tamil Nadu State Transport Corporation Employees pension Fund Rules. Prayer in WP.4571/06 : Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records from the respondents pertaining to the orders in Letter No.5418/D/2004-4 dt. 23.8.04 of the 1st respondent and the order in letter No.26/P2/TNSTCEPFT/2004-2814 dt. 27.8.04 of the 2nd respondent, quash the same and consequently direct the respondents forthwith to pay monthly pension, commutation amount and family pension to the workmen/legal heirs as per Tamilnadu State Transport Corporation Employees Pension Rules without reference to the receipt of defence pension/family pension with arrears and interest, Award costs. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners in W.P.Nos.4117 & 4571 of 2006 : Mr. V. Ajoy Khose For Petitioners in W.P.Nos.456 /2006, 31130 & 36941 of 2005 & 10425 of 2007 : Mr. S. Balasubramanian For Respondent No.1 in all WPs. : Mr. R. Murali, Govt. Advocate For Respondent No.2 in W.P.Nos. 4117 & 4571/2006, 31130 & 36941 of 2005 and 10425 of 2007 : Mr. R. Singaravelan For Respondent No.3 in W.P.Nos. 4117 & 4571 of 2006 : Mr. V.R. Kamalanathan For Respondent No.3 in W.P. No.31130 of 2005 and for R2 in WP.456/06 : Mrs. Rita Chandrasekar For Respondent No.3 in W.P.No. 10425 of 2007 : Mr. T. Chandrasekaran For Respondent No.3 in W.P.No. 36941 of 2005 : No Appearance COMMON ORDER W.P.No.4117 of 2006 is filed by the Tamil Nadu Arasu Pokkuvarathu Madurai Thozhilalar Sangam and one Amsavalli, who is the widow of one Rathinasamy, employee of the Transport Corporation. The said Sangam also filed W.P.No.4571 of 2006. All other writ petitions are filed by petitioners, who are widow of the deceased employees, seeking family pension from the respective Transport Corporation. 2. The prayer in these writ petitions are to quash the order of the first respondent dated 23.8.2004 and the consequential order of the second respondent dated 27.8.2004 and direct the respondents to pay monthly pension, commutation amount and family pension to the widow of the employees, who retired after attaining the age of superannuation and subsequently died. 3. The case of the petitioners is that the Sangam is a Trade Union registered under the Trade Unions Act, 1926 with Registration No.157/MDU. All the workmen employed in the State owned Transport Corporations demanded pension as given to the Tamil Nadu Government servants. The Transport Corporations considered the said demand and a https://hcservices.ecourts.gov.in/hcservices/ settlement under Section 12(3) of the Industrial Disputes Act, 1947 was entered into on 13.2.1999 between the Trade Unions and the Transport Corporations. Clauses 18 & 19 provide for pension with effect from 1.9.1998. After the said settlement, Tamil Nadu Transport Employees Pension Fund Rules were framed and the second respondent- Trust was constituted to administer the Pension Fund as approved by the Government in G.O.Ms.No.135, Transport Department, dated 15.12.2000. Thereafter, pension was disbursed to the employees, who were in service as on 1.9.1998 and retired thereafter. 4. As per Rule 14(b) of the Tamil Nadu State Transport Corporation Pension Fund Rules, if a member is eligible for pension under any other scheme, pension payable under this Rule is the difference between the gross pension and the pension amount already received by the employee for the service with the previous employer or the pension eligible under the Rules, whichever is less, while calculating gross pension. The service rendered with previous employer should also be counted notionally. 5. According to the petitioners, when services rendered in the previous employment viz., Army, Navy and Air Force was not taken into account for fixation of pay at the time of initial recruitment as Ex- servicemen were recruited as fresh entrants, the respondents cannot rely on the pension payable from the previous employment to the disadvantage of the workmen, who are Ex-servicemen for calculating pension and therefore Rule 14(b) of the Rules was challenged in various writ petitions. Thereafter, Rule 14(b) of the Rules was amended by the Government incorporating Rule 14(c) through G.O.Ms.No.103, Transport Department dated 26.8.2003. As per Rule 14 (c) of the Rules, provision contained in Rule 14(b) of the Rules shall not apply in case of members, who are Ex-servicemen, drawing pension for military service. Therefore, it was recognised by the Department that the defence pension paid to Ex-servicemen will no way affect the right of their pension for their service rendered in Transport Corporations. 6. According to the petitioners, the payment of pension by the Transport Corporations was stopped to all workmen who retired after 1.4.2003 due to non-availability of exemption from the purview of the income tax to the Tamil Nadu Transport Corporation Employees Pension Fund Trust. The Union protested the said action and the first respondent issued a letter No.245, Transport Department, dated 24.12.2004 and directed the Transport Corporations that the amount of pension and commutation of pension be disbursed immediately to the workmen, who retired voluntarily, medically discharged or expired on or after 1.4.2003. The widows of the workmen, who are the petitioners in these writ petitions are not paid family pension and commutation of pension, even though the workmen were paid pension till their death. Their claims were rejected on the ground that the Rules do not provide for family pension to the widows of ex-servicemen. The said https://hcservices.ecourts.gov.in/hcservices/ action of the respondents being in violation of Rules 14(c) and 20 of the Rules, the petitioners have filed these writ petitions contending that the action of the respondents is arbitrary, unreasonable, violating the Rules and inhumane, as the widows of the deceased employees of the Corporation are denied of family pension only on the ground that they were already paid military pension for the services rendered by them in the Army/Navy/ Air Force. The same is also challenged on the ground that the action of the Transport Corporation is contrary to Tamil Nadu Pension Rules, 1978. 7. The third respondent has filed counter affidavit by stating that the widows of the deceased ex-servicemen, who worked in the Transport Corporation are eligible to draw either State Transport Corporations' family pension or military pension and therefore, they were advised to produce non-drawal of Family Pension Certificate from the military authorities to sanction family pension under the Tamil Nadu State Transport Corporation Employees Pension Fund Rules and as per G.O.Ms.No.418, Transport Department, dated 23.8.2000, widows of ex-servicemen are prohibited to draw both family pension. Section 20 (3)(a) of the Tamil Nadu State Transport Corporation Employees Pension Fund Rules will not enable the petitioners to claim family pension on both categories and pension is eligible to be sanctioned to the pensioners till their death and family pension is eligible either from the Transport Corporation or from the military. 8. The second respondent filed a separate counter affidavit contending that as per the instruction issued by the Government in Letter No.5418/D/2004-4, dated 23.8.2004, the widows of the deceased ex-servicemen on the basis of their husbands' employment in State Transport Undertakings are not entitled to get double family pension and they have the option to get family pension under any one of the scheme, whichever is advantageous to them. The family pension under the Rules was not sanctioned to the widows of the retired employees since they have not opted to draw family pension from the second respondent alone. Reliance of Rule 14(c) of the Rules to claim family pension cannot be accepted as it was a concession given to the pensioners and the Government letter dated 23.8.2004 is bound to be followed while sanctioning family pension to the widows and other eligible pensioners. The second respondent based on the counter affidavit prayed for dismissal of the writ petitions. 9. Heard the learned counsel for the petitioners and the respective counsel for the Transport Corporations and the counsel for the second respondent. 10. The only issue to be decided in these writ petitions is whether the widows of the retired employees of the Transport Corporations, who got employment after serving in the Army/Navy/Air Force, are entitled to get family pension while receiving the military family pension. https://hcservices.ecourts.gov.in/hcservices/ 11. The facts in these cases are not in dispute. The Tamil Nadu Transport Employees Pension Fund Rules is the relevant Rule, which is to be scanned to find out a solution to the said issue. The said Rule came into force from 1998. In the said Rule, 'family' is defined under Rule 2(s), which reads as follows:- "2(s) "Family" means- (i) Wife in the case of a male member of the Employees' Pension Fund. (ii) Husband in the case of a female member of the Employees' Pension Fund. (iii)Sons and daughters of a member of the Employees' Pension Fund. (iv) Father and mother in the case of unmarried members Explanation: The expression "sons and daughters" shall include children legally adopted by the member." 'Pensionable Service' is defined in Rule 2(v), which states as follows:- "2(v) "Pensionable service" means the service rendered by the member for which the contributions have been received." 'Pensionary benefits' is defined in Rule 2(w), which reads as follows:- "2(w) "Pensionary benefits" shall mean the pension or service gratuity and family pension and do not include Death cum Retirement Gratuity, applicable to the employees of Government of Tamil Nadu." 12. Membership of the pension scheme is mentioned in Rule 8, which states that the scheme is applicable to all employees of the establishment who are on rolls as on 1.9.1998 or employed after that date and also members of the Employees Provident Fund Scheme. 13. Contributions to the Pension Fund Trust consist of the following:- " 10 a) The initial contribution of the Pension Fund Trust shall consist of the following:- i) The entire employer contribution made by the STU to the credit of the member since the date of joining the service in the STU or taken over Units and where he was transferred from the other STU to the present STU with continuity of service in which he is serving, the contribution made to his credit by the STUs; ii) The amount remitted to Family Pension Scheme, 1971 to the credit of the member from the date of joining the STU by obtaining refund from the Provident Fund Commissioner. iii) The entire amount remitted to the EPS-1995 to the credit of the member from 16.11.1995 to the date of implementation of the Scheme by obtaining refund from the Provident Fund Commissioner. https://hcservices.ecourts.gov.in/hcservices/ iv) Any non-refundable advance drawn by the member out of employer contribution upto the date of implementation of the Scheme along with interest at 12% compounded annually. v) In the case of non-member of EPS-1971, the employer contribution to the extent of 1 1/6 of the wages which otherwise would have been remitted to the FPS-1971. The Provident Fund Trust shall remit the above amount to the Pension Fund Trust by obtaining refund from the RPF Commissioner or the member wherever necessary. b) The STUs shall pay the contribution to the Trust on monthly basis of 12% of the actual Basic plus DA paid to the employees or at the rates that may be revised by the Government from time to time. c) Each contribution payable under this Rule shall be calculated to the nearest rupee,fifty paise or more to be counted as the next higher rupee and a fraction of a rupee less than fifty paise to be ignored. d) The Employer shall transfer to the Board of Trustees the contribution payable to the Pension Fund by the 15th of each month following the month for which the contribution is payable or such other date as may be notified by the Trust. The employer shall be liable to pay damages for any delay in transfer of the funds to the Board of Trustees as per the orders of the Government. e) If for a member there is a non-contributory service, the STUs shall keep a record of such non-contributory service and shall advise the member of the non-contributory service from time to time that such non-contributory service shall not be counted for arriving the pensionable service." 14. 'Pensionary Benefit' is mentioned in Rule 12, which reads as follows:- " 12. The pensionary benefits and also eligibility for pensionary benefits to the member or his family under the Scheme shall be as indicated in Rule 13 to 20. Any interpretation of the Rules pertaining to pensionary benefits and also eligibility for pension shall be as per the interpretation given by the Government." 15. Determination of 'Pensionable Service' is dealt with in Rule 14(c), which reads as follows:- " 14(c) " Provided that the provisions of Rule 14(b) shall not apply in the cases of members who are ex-servicemen and drawing pension for the military service" subject to the https://hcservices.ecourts.gov.in/hcservices/ conditions that such option as provided in the Rule 16 of Tamil Nadu Pension Rules be obtained from these pensioners". 16. The members pension is payable till the life time of the member. The 'Family Pension' is dealt with under Rule 20, which reads as follows:- " 20. Family Pension a) Family Pension shall be admissible to the family of the member, who has rendered less than 7 years but not less than one year of service from the date following the date of death of the member while in service at the rate of 30% of basic pay last drawn and the contribution for the period has been paid into the Fund, till the lifetime of the spouse (widow/widower) Exception: In respect of employees who has rendered less than one year of service, the family pension may also be allowed to the family of a member who die in harness, provided that the deceased employee immediately prior to his appointment was examined and declared fit for employment. b) After the death of the spouse, the first child is eligible for family pension at the rate of 30% upto the period till he or she attains the age of 25; in the case of male child, family pension is admissible till he attains the age of 25 years or getting employment, whichever is earlier; and in the case of female child, family pension is eligible till she attains the age of 25 or the date of her marriage whichever is earlier. c) if the first child becomes ineligible for family pension, the next child will become eligible for family pension and the subsequent children are eligible for family pension in the chronological order, as indicated in clause 20 (2)(b), but the Family Pension is eligible only for one child at a time. d) if the eligible child is mentally retarded or physically handicapped, he or she is eligible for family pension till death. e) the minimum family pension payable shall be Rs.1275/- or the amount that may be revised from time to time. f) If a member is not married, he can nominate his father/mother to receive family pension, as in the case of spouse, and they are eligible for family pension till their lifetime. If a member who is not having a family at the time of death can nominate a person to receive the family pension." 17. On the death of the pensioner before he attains the age of 65, the spouse is eligible for family pension, the rate at which the pensioner was getting pension at the time of his death or 50% of the https://hcservices.ecourts.gov.in/hcservices/ last pay drawn at the time of retirement, whichever is less till the period, the pensioner would have attained the age of 65 till his lifetime and after that period, the rate will be 30% of pay last drawn by the member at the time of retirement. 18. From the above referred provisions of the Rules, it is evident that a pensioner is entitled to receive Military Pension and also Transport Employee Pension, subject to the option provided in Rule 16 of the Tamil Nadu Pension Rules to be given by the pensioners. The pensioner can continue to draw military pension or to retain the gratuity received, which are discharged from military and in that case, the former military service shall not count as qualifying service or to cease to draw his pension and refund, the pension already drawn and the value received for commutation or the part of military pension or the amount of DCRG including service gratuity, if any, and given the previous military service as qualifying service as provided in Rule 16 of the Tamil Nadu Pension Rules. Thus, it is clear that a choice is given to the ex-servicemen, who got employed in Transport Corporations either to continue to draw the military pension or forego the military service for the purpose of Transport Corporation pension or to refund everything received towards terminal benefits received on retirement from military service and claim the entire military service as part of the pensionable service in the Transport Corporations. 19. In these cases, the pensioners before their death opted to receive both the pension and their respective military service, was not counted as pensionable service in the Transport Corporation as they have not given option. In such circumstances, on the death of the pensioners, who received both the pension, their widows are also entitled to get family pension from the military as well as from Transport Corporation, as they are eligible to get family pension. The Tamil Nadu Government has ordered to pay family pension to the widows by stating that even if a person, who has not completed ten years of service, who is not sanctioned with pension during his lifetime, his widow is eligible to get family pension, if the retired person completed not less than one year of regular service. The said benevolent provision extending the benefit to the widows of the retired Government Servant is found in Rule 49 (2A) of the Tamil Nadu Pension Rules, 1978, which reads thus, "49(2A) The family pension payable to a family of a Government Servant or a retired Government Servant who died on or after the 1st April, 1979, shall be regulated as under, provided he has completed continuous qualifying service for a period of not less than two years- (i) The amount of monthly family pension shall be calculated at the uniform rate of 30 per cent of pay drawn, subject to a minimum of Rs.245 per mensum and maximum of Rs.1000 per mensum. https://hcservices.ecourts.gov.in/hcservices/ (ii) In the case of death after retirement, the quantum of family pension as calculated above shall not exceed the uncommuted value of superannuation pension. A flat rate of family pension shall be sanctioned to the eligible member of the family of the Government servant who died in service after retirement and who were hitherto not eligible for family pension." 20. The Supreme Court and this Court in very many decisions held that pension is not a bounty and it is a benefit given to the retired person considering his past services rendered to meet his livelihood at the fag end of their life upto their death. The widows are the persons eligible to get family pension due to the death of the pensioner, cannot be deprived of that family pension right because of the fact that she will be in the worst position on the demise of the pensioner as a lesser amount of pension amount is paid towards family pension. Therefore, the contention of the respondents are unreasonable and is in contravention of the Tamil Nadu Pension Rules, 1978 and also in violation of Rule 14(c) of the Tamil Nadu State Transport Corporation Pension Fund Rules. It is well settled in law that beneficial provisions intended to protect the interest of the workers are to be interpreted in a beneficial way and not to defeat the interest of the workers/retired workers/their widows. 21. The Constitution Bench of the Supreme Court in the decision reported in (1983) 1 SCC 305 (D.S. Nakara v. Union of India) in para 29 described 'pension' as follows: " 29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d’etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon." https://hcservices.ecourts.gov.in/hcservices/ 22. In the decision reported in 1985 (3) SCC 345 (Poonamal v. Union of India), the Supreme Court explained the object of family pension in para 7, which reads thus, " 7. It is not necessary to examine the concept of pension. As already held by this Court in numerous judgments pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government