This writ petition is of the year 2005. It was filed on 30.03.2005 to be precise. This writ petition has been pending in this court for more than 12 years now.
2 Writ petitioner was 62 years old when the writ petition was filed in 2005. He should now be 74 years old. More over, the writ petition pertains to writ petitioner's claim of commuted value of his pension. Sole respondent has filed a counter affidavit and pleadings are complete.
3 Owing to all the aforesaid factors, though there is no representation for both sides today when the matter was called, I deem it appropriate to examine the matter on merits on the basis of the available records and dispose of the writ petition on merits.
4 The crux and gravamen of the case of the writ petitioner is that he worked as Superintendent (Traffic) in the respondent Corporation and he retired from service on 31.7.2001. Consequent to the introduction of a new pension scheme to the employees of all transport corporations in the State with effect from 1.9.1998, the writ petitioner contends that he also became eligible for pension on and from 1.8.2001. In this regard, the writ petitioner would rely on G.O.Ms.No.135, Transport Department dated 15.12.2000. With regard to commuted value of his pension, the writ petitioner claims that he is entitled to a sum of Rs.21,351/- .
5 The primary contention of the writ petitioner is that while calculating the commuted value of his pension as on date of his superannuation at an age of 58, the multiplying factor that ought to have applied is 10.78, but the respondent Corporation had erroneously applied a multiplying factor of 10.46, which is applicable to the age of 59 years. This, as stated supra, is the crux and gravamen of the case of the writ petitioner. This (erroneous) basis and the quantum deduced therefrom has been well articulated by the writ petitioner in paragraph 10 of the writ affidavit, which read as follows :
10.Again in calculating the commuted value of pension as on the superannuation age of 58, the factor that is to be applied is 10.78. But the respondent applied the factor 10.46, applicable to the age 59. It seems that at the time of passing an order for payment of commuted value, which date is 31.5.2002, I was aged 58 years and 10 months and therefore the respondent has applied the factor 10.46, which is also blatantly a wrong and unauthorised procedure. Perhaps, it may be correct, provided the respondent paid me full pension from 1.8.2001 to 31.5.2002 and then after paying me the commuted value of one third pension on 1.6.2002, started recovery of Rs.927 every month. Without so doing the respondent started recovery of one third value of pension in the pension for every month without making any payment of the commuted value of pension and it is something like putting the cart before the horse. I understand only the respondent could do such strange and funny things. Anyway the commuted value of pension due to me as on 1.8.2001 is 927 x 10.78 x 12 = Rs.1,19,917/- and the commuted value as calculated by the respondent (on 31.5.2002) is 927 x 10.46 x 12 = Rs.1,16,357/- and hence the short payment is Rs.3560/-. The Hon'ble Supreme Court has already decided that for payments not made for months together after retirement, simple interest at 18% is to be saddled on the authority (vide 2000 AIR SCW 2678). Therefore, the respondent is bound to pay interest for Rs.1,19,917/- for 10 months at 18% interest which works out to Rs.15,975/-. Since only Rs.1,16,357/- was paid on 31.5.2002 the short payment of Rs.3560/- is also to be paid to me with 18% simple interest calculated from 1.6.2002 upto 31.3.2005, which works out to Rs.1816/- and total amount due is Rs.3560/- + 1816/- = Rs.5,376/-. Altogether the respondent is to pay Rs.15,975/- + Rs.5376/- = Rs.21351.00. 6 The sole respondent Transport Corporation before me has filed a counter affidavit dated 11.2.2010.
7 Paragraph 10 of the writ affidavit has been met in the counter affidavit in paragraph 8. In paragraph 8 of the said counter affidavit of the sole respondent, the respondent Transport Corporation submits that on the basis of the Government rules, commutation of pension should be calculated by using multiplying factor corresponding to the age on next birthday given in the commutation table. They would also place reliance on Rule 17A of the relevant rules. The respondent Corporation submits that the word 'age' on next birthday has been omitted by mistake in the said Rule and that the administrator of the Corporation employee pension fund trust has addressed to the Government in this regard, requesting the Government to issue an amendment. This has been well articulated by the sole respondent in the counter affidavit in paragraph 8. I deem it appropriate to extract paragraph 8 of the counter affidavit of the sole respondent, which reads as follows :
8.I submit that the petitioner has completed 30 years of service and therefore he is entitled for Full pension ie 50% of his last paid (Rs.5560/-) drawn at the time of retirement and full pension is Rs.2780/- PM. As he opted for commutation of pension at the time of submission of his application for pension. His pension amount was arrived after reducing the sum (1/3 of pension) towards commutation and the amount due on such commutation was also paid. The pension will be reduced to the extent of commutation and this will remain for 15 years and thereafter original pension will be restored. The Corporation has not made any unlawful recovery from the pension due to the petitioner. TNSTC EPF rules have been formulated almost inline with the Government pension rules. As per the Government rules, commutation of pension will be calculated at the multiplying factor corresponding to age on next birthday given in the commutation table which was also adopted in full without modification in TNSTC EPF table B furnished referred to in rule 17A of TNSTC EPF rules. The word 'age' on next Birthday has been by omitted by mistake in TNSTC EPF rules and the administrator for TNSTC employee pension Fund trust as addressed the Government vide letter No.26/PF/TNSTC EPFPT/2005 3381 DT 04/04/2005 (Copy enclosed) requesting the Government to issue amendment orders so as to read the word, age in the commutation table order 17a of TNSTC EPF rules as AGE ON NEXT BIRTHDAY. Under these circumstances the claim of the petitioner is not sustainable. 8 This makes the pivotal point in this writ petition very simple to resolve. What needs to be applied is the rule in force as on date on which the commutation is made and not a rule that is anticipated / expected.
9 From the rival contentions extracted supra and also as alluded to me, it is clear that in accordance with the rule in force on the relevant date, the multiplying factor that ought to have been applied is 10.78 for calculating the commuted value of pension and not 10.46.
10 The respondent cannot be heard to contend that they would apply the multiplying factor of 10.46, because they had addressed the Government for amendment of the rule and that the same is awaited. It is clearly unacceptable. The rule in force as on date of commutation is relevant. It is indisputable that there is no dispute that the rule in force as on date of commutation is such that the multiplying factor applied by the respondent Corporation is incorrect.
11 This makes the writ petitioner entitled to the relief as prayed for.
12 The prayer in the writ petitioner cannot but be acceded to.
13 Therefore, the writ petition is allowed. The respondent is directed to make the payment of Rs.21,351/- to the writ petitioner within a period of eight weeks from the date of receipt of copy of this order. No costs. As the writ petitioner and the respondent have not appeared before the Court, the Registry is directed to send the certified copies of this order to the writ petitioner and the respondent to the address given in the cause title.
25.07.2017 Index : Yes/No vvk To The Managing Director State Express Transport Corporation, (Division I & II) Ltd., Chennai-600 002.
M.Sundar, J.
vvk W.P.No.10898 of 2005 25.07.2017