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2023 Supreme(Mad) 2165
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.B. BALAJI, J.
P.Muthusamy – Appellant
Versus
Tamil Nadu Electricity Regulatory Commission Rep by the Secretary, Egmore Chennai & Others – Respondents
W.P. No. 36342 of 2016
Decided On : 21-07-2023
For the Petitioner:Rahul Balaji for Suhrith Parthasarathy, Advocate. For the Respondent:R1, Richandson wilson for R2, M. Shahjahan, Spl.g.P for R3, Vijay Shankar, Advocate.
The main legal point established in the judgment is that the petitioner's voluntary retirement and fresh appointment with the 1st respondent Commission entitled him to the benefits of the Contributory Pension Scheme, and the 1st respondent's subsequent change in stance was unjustified.
Headnote:
Mandamus - Contributory Pension Scheme - Tamilnadu Pension Rules 1978 - Electricity Act - Section 86(1)(f) and Section 91(3)
Fact of the Case:
The petitioner, a former employee of Tamilnadu Electricity Board, sought the release of his balance sum due under the Contributory Pension Scheme from the 1st respondent Commission. The 1st respondent contested, claiming the petitioner was not entitled to the scheme benefits as he was re-employed and covered under general provident fund rules.
Finding of the Court:
The court found that the petitioner's case was not one of re-employment but a fresh appointment with the 1st respondent Commission. It held that the 1st respondent's decision to extend the CPS to the petitioner and subsequent withholding of benefits was unjustified and directed the release of the due amount.
Issues: The main issue was whether the petitioner's case constituted re-employment and if he was entitled to the benefits of the Contributory Pension Scheme.
Ratio Decidendi: The court relied on the petitioner's voluntary retirement from the previous service and his selection as a direct recruit by the 1st respondent Commission to establish that he was not re-employed but freshly appointed. It also emphasized the 1st respondent's initial decision to extend the CPS to the petitioner and clarified that the subsequent change in stance was unjustifiable.
Final Decision: The court allowed the Writ Petition and directed the respondents to release the sum of Rs.6,38,928/-, together with interest accrued, to the petitioner within 4 weeks.
JUDGMENT
(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents to forthwith pay an amount of Rs.6,38,928/- along with interest accrued towards the balance sum due to the petitioner under the Contributory pension Scheme to the petitioner at such rate as may be fixed by this Court.)
1. The Writ petition has been filed seeking issuance of a writ of Mandamus directing the respondent to pay Rs.6,38,928/-,together with interest, being the balance sum due to the petitioner under the Contributory Pension Scheme.
2. It is the case of the petitioner that he was originally recruited as an Assistant Engineer (Electrical) in Tamilnadu Electricity Board (hereinafter referred as TNEB) January 1980 and he continued in service until 15.05.2010, at which point of time he joined the 1st respondent Commission (TNERC). In response to an employment notice published by the 1st respondent on 26.08.2009 in New Indian Express Daily, inviting applications for filing up the post of Director (Engineering), the petitioner applied on 15.09.2009. The 1st respondent vide its proceedings dated 12.02.2010 appointed the petitioner as Director (Engineering – Grade –I) and the petitioner was called upon to join duty on 25.05.2010. The petitioner therefore voluntarily retired from service of TNEB and joined the 1st respondent Commission on 19.05.2010, where he continued his services until his superannuation on 31.05.2015. It is the further case of the petitioner that even in the employment notice published on 26.08.2009, it was specifically mentioned that candidates who are selected by direct recruitment would be covered under the Contributory Pension Scheme of the State Government. The petitioner made a representation on 21.01.2013, requesting the 1st respondent to extend the benefit of contributory pension scheme to him, in terms of the employment notice. The 1st respondent vide its proceedings dated 29.05.2013 also ordered extension of the Pension Scheme benefits to the petitioner with effect from 19.05.2010, the date on which the petitioner joined the 1st respondent Commission.
3. It is also stated that ever since 25.05.2013 the applicable charges towards CPS were deducted from the petitioner’s salary and deposited along with equal contribution made by the 1st respondent, in a joint savings bank account, operated by the 1st respondent and the petitioner. The 1st respondent vide its letter dated 02.07.2013 informed the 2nd respondent about the CPF benefits being extended to the petitioner and further clarified the queries raised by the 2nd respondent by its letter dated 01.07.2014, addressing the issues raised by the 2nd respondent with regard to the applicability of Rule 7(1) of Tamilnadu Pension Rules 1978 to the petitioner. Despite the petitioner having retired, the amount payable to him under the scheme was not paid and therefore the petitioner sent a letter on 23.11.2015 to the 1st respondent seeking the release of amounts payable to the petitioner. The 1st respondent however vide its proceedings dated 17.12.2015 made a payment of Rs.6,38,928/-, being the contribution of the petitioner, along with the interest that had accrued in the bank. However, the contribution of the 1st respondent was not released despite several letters and personal visits of the petitioner. Under such circumstances, the petitioner has approached this court seeking issuance of a Writ of Mandamus
4. The 1st respondent has filed a counter affidavit and also a typed set of papers stating that the petitioner was only re-employed and therefore he was not entitled to the CPS benefits. Moreover, he is already covered under the general provident fund rules and all other benefits when he was employed under TNEB and having received the same and also pension from TNEB, the petitioner cannot seek to be treated as a direct recruit and claim the benefits of CPS. Even when the petitioner was employed with the 1st respond
