@JUDGMENTTAG-ORDER
M.M. Sundresh, J.@mdashThe petitioner herein was originally appointed as Junior Assistant in the then M/s. Pandian Roadways Corporation. Thereafter, he applied for the post of Junior Manager. He was selected to the post of Junior Manager by the respondents. The petitioner''s resignation with the erstwhile corporation was accepted on 17.07.1984. He joined the service in the office of M/s. Kattabomman Transport Corporation Limited, Tirunelveli, as Junior Manager on 18.07.1984. He also received the gratuity amount from the erstwhile employer and the PF was transferred to the subsequent employer, to whom he was appointed as Junior Manager namely the respondents herein. The petitioner was granted pension after his retirement by taking into consideration all his past services rendered in the erstwhile employer, namely, M/s. Pandian Roadways Corporation along with the services rendered at then M/s. Kattabomman Transport Corporation Limited, which was subsequently merged with the respondents. However, after making payment for two years, the respondents stopped the payment of pension for the period in which the petitioner was working as Junior Assistant at erstwhile employer namely, M/s. Pandian Roadways Corporation Limited. Accordingly, the excess pension said to have been paid to the petitioner by treating the services rendered in the earlier corporation was treated to be adjusted. The petitioner gave a representation to the Government which was also rejected on the ground that the petitioner having been resigned on 17.07.1984 and joined in the new services on 18.07.1984 is not entitled to count the service rendered with the earlier employer as there was a break in service. Aggrieved by the action of the respondents, the present writ petition has been filed.
2. The learned counsel for the petitioner has submitted that the petitioner is entitled to count his service rendered with the erstwhile employer for the purpose of computing the pension payable to him. Rule 16(e) of the Tamilnadu State Transport Corporation Employees Pension Fund Rules, provides that in a case where a resignation has been submitted to take up with proper permission, then the earlier services rendered with the erstwhile employer will have to be taken into consideration for the purpose of computing pension.
3. According to the learned counsel for the petitioner, the impugned order is liable to be set aside, since it has been passed without affording an opportunity to the petitioner. The learned counsel also made one another submission stating that the order passed by the Government in the appeal made by the petitioner cannot be sustained as it is factually wrong to hold that there is a break of service. In support of his contention, the learned counsel has made reliance upon the judgment of this Court rendered in W.P. (MD). No. 11000 of 2005, dated 25.04.2011.
4. Per contra, the learned counsel appearing for the respondent corporation submitted that the petitioner was working in a different capacity with the erstwhile management. He was working only as a Junior Assistant, but subsequently appointed as Junior Manager with the third respondent. Under those circumstances, his service cannot be counted for the purpose of pension. The petitioner has received gratuity amount from the then M/s. Pandian Roadways Corporation. The resignation of the petitioner has become final and concluded and therefore, he is not entitled to count his past services. The learned counsel has made reliance upon Rule 12 of the Tamilnadu State Transport Corporation Employees Pension Fund Rules to state that decision of the Government in a case of interpreting the Rules is final and therefore, no interference is required. Reliance was made on the judgment rendered by this Court in W.P. No. 11642 of 2009, etc., dated 20.03.2010. The learned counsel also made reliance on the judgment of this Court in W.P. Nos. 10497 to 10499 of 2009, dated 15.02.2012 in support of his contention.
5. The facts are not in dispute. Admittedly, the petitioner was appointed as Junior Assistant in the then, M/s. Pandian Roadways Corporation. While he was working in the said capacity, with the permission of the then authority he made an application to the post of Junior Manager, with the then M/s. Kattabomman Transport Corporation Limited, which has been renamed as Tamil Nadu State Transport Corporation, namely, the third respondent herein. The petitioner''s request for resignation was accepted by the then management on 17.07.1984. He joined the services of the then M/s. Kattabomman Transport Corporation Limited, now the third respondent herein, on the next day-18.07.1984. Therefore, it cannot be construed there is a break in service. The above said facts would reveal that the petitioner did obtain the permission from the erstwhile employer. That is the reason why the resignation of the petitioner was accepted on 17.07.1984.
6. Now coming to the interpretation of the Rule 16(e) of the Tamilnadu State Transport Corporation Employees Pension Fund Rules is concerned, the provision to Sub Rule specifically mandates that a resignation shall not entails forfeiture of past services, if it has been submitted to take up with proper permission. It is not even the case of the respondents that the petitioner has not taken up the proper permission. On the contrary it is the admitted case that the petitioner has obtained a proper permission. Therefore, this Court is of the view that the petitioner is entitled to count his service rendered by him with the erstwhile employer namely M/s. Pandian Roadways Corporation Limited.
7. The contention of the learned counsel for the third respondent that the petitioner having worked in a different capacity cannot be permitted to take his past services into his pension claim with the third respondent cannot be countenanced for the reason that Rule 16(e) of the Tamilnadu State Transport Corporation Employees Pension Fund Rules does not make such a distinction. It merely speaks about the past services are to be counted for another appointment, meaning thereby it is not mandatory that the appointment should be only for the very same cadre or post. To put it in different, if it is for the same post or cadre, there is no necessity for the employee to resign his post and join with the other wing of the Government. Hence, this contention of the learned counsel appearing for the third respondent in this regard, is hereby rejected.
8. Yet another submission has been made by the learned counsel appearing for the third respondent that under Rule 12 of the Tamilnadu State Transport Corporation Employees Pension Fund Rules the Government is the appropriate authority to take a decision on the interpretation of any Rule governed the pension payable to an employee. There is no difference in appreciating the said submission, but the same cannot be extended to hold that the decision taken by the Government would act as a fetter to the powers exercised by this Court under Article 226 of the Constitution of India. Hence, the submission made by the learned counsel for the third respondent in that regard is also rejected.
9. Now, coming to the judgment relied upon by the learned counsel for the third respondent, this Court is of the view that those judgments are not applicable to the case on hand. It is settled law, a decision which has been rendered without a conscience consideration of the issues raised cannot be termed as binding precedent. The scope and applicability of Rule 16(e) of the Tamilnadu State Transport Corporation Employees Pension Fund Rules has not been considered in those two decisions relied on by the learned counsel for the third respondent. In the decision rendered in W.P. Nos. 11642 of 2009 etc., dated 20.03.2010, this Court was primarily concerned with the scope and applicability of an award passed. Similarly in W.P. No. 10497 to 10499 of 2009, dated 15.02.2012, this Court has not considered any legal issues except by holding the petitioners therein have settled their earlier accounts. In this case, the petitioner has not settled his entire earlier accounts with his erstwhile employer. His PF papers have been transferred to the third respondent. This Court is also of the view that the decision relied on by the learned counsel for the petitioner in W.P. No. 11000 of 2005, dated 25.04.2011, is applicable to the case on hand. In the said judgment, this Honourable Court has considered the proviso to Rule 23 of the Tamil Nadu Pension Rules, 1978, which is para materia to the Rule 16(e) of the of the Tamilnadu State Transport Corporation Employees Pension Fund Rules.
10. It is also found on a perusal of the order impugned that it has been passed without affording an opportunity to the petitioner, that too after a period of 2 years from the date of his superannuation. Therefore, even on that score also, the impugned order cannot be sustained. Hence, on a proper analysis of the facts and on application of the legal precedents, this Court is of the view that the writ petition is entitled to be allowed. Accordingly, the impugned order is set aside and the writ petition is allowed. The respondents are directed to pass the consequential order as expeditiously as possible. No costs. Consequently, connected miscellaneous petitions are closed.
