TMI Blog2003 (4) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... e disposed of by a Division Bench of the High Court. Two of the writ appeals were filed by the writ petitioners, while two were filed by the Corporation. The Corporation was formed on 1.4.1965; some persons who were then employed with State Transport Department were absorbed by the Corporation; their service conditions were protected vide Notification No. 4936/TC4/64/PW 22.3.1965 in terms of directions under Section 34 of the Road Transport Corporation Act, 1950 (in short 'the Act'). On the basis of conditions 11 and 12 of the Notification, which shall be extracted infra, pension was paid to erstwhile State Transport Department employees, in terms of Part III of Kerala Service Rules, 1959 (in short 'KSR'). In 1978, other employees who opted for pension were also granted pension at par with these employees. In 1992, (w.e.f. 1.1.1992) a departure was made by fixing subsequent dates of entitlement for dearness relief. Similar was the situation in 1994. While on the first instance date fixed was 1.7.1992, for the latter case it was directed to be operative from 1.11.1996, when the Government had fixed the date to be 1.4.1994. Huge extra cost involved and shattered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... broadly taken the view about entitlement of the pensioners, though the writ petitions were not for identical reliefs. There was no pensionable post in the Corporation till 1984. The wage structure is the domain of the employer-Corporation and it has the choice to fix the cut off date for enhanced pension and dearness reliefs. Even if it is accepted for the sake of arguments that the letter of the Government (Ex.P-1) was not an instruction in terms of Section 34 of the Act, yet the Corporation was not denuded of its power to fix the wage structure and when for good and sufficient reasons it fixed the cut off dates, the High Court should not have interfered. Financial stringency is a relevant factor for fixing the cut off date. The High Court acted on erroneous premises by proceeding as if there was controversy as regards the conferment of the benefits. What was really in controversy was the dates while there is no dispute about entitiement. The take over document has not been considered by the High Court properly. It only says that as and when the benefits accrue the relevant rules, notifications and orders of the governments in force and applicable immediately before the transfer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have any determinative force on the issue as to whether the Corporation has the power to fix up a different cut off date taking into account several relevant factors like financial stringencies etc. There is no appearance on behalf of the other respondents. Before we deal with their respective contentions, it is necessary to appreciate the concept of pension. There are different classes of pensions and different conditions govern their grant. It is almost in the nature of deferred compensation for services rendered. There is a definition of pension in Article 366(17) of the Constitution of India, 1950 (in short the 'Constitution'), but the definition is not all pervasive. It is essentially a payment to a person in consideration of past services rendered by him. It is a payment to a person who had rendered services for the employer, when he is almost in the twilight zone of his life. A political society which has a goal to set up a welfare state, would introduce and has, in fact, introduced as a welfare measure wherein the retiral benefit is grounded on consideration of State obligation to its citizens who having rendered service during the useful span of life must n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retirement income is harder. But it is imperative to note that as self- sufficiency declines the need for his attendance or institutional care grows. Many are literally surviving now than the past. We owe it to them and ourselves that they live, not merely exist. The philosophy prevailing in a given society at various stages of its development profoundly influences its social objectives. The law is one of the chief instruments whereby the social policies are implemented and pension is paid according to rules which can be said to provide social security law by which it is meant those legal mechanisms primarily concerned to ensure the provision for the individual or a cash income adequate, when taken along with the benefit in kind provided by other social services (such as free medical aid) to ensure for him a culturally acceptable minimum standard of living when the normal means of doing so failed. (See Social Security Law of Prof. Harry Calvert, p. 1) Viewed in the light of the present day notions pension is a term applied to periodic money payments to a person who retires at a certain age considered age of disability; payments usually continue for the rest of the natural life of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion payable to an employee is earned by rendering long and sufficient service and therefore can be said to be a deferred portion of the compensation 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 pecuniary if there is nothing to fall back upon. The discernible purpose thus underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the Courts may not so interpret such statute as to render them obscure (See American Jurisprudence 24.881). From the aforesaid analysis three things emerge: (i) that pension is neither bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to the statute, if any, holding the field, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence must be strictly construed. The purpose of the statute, it was held, is to protect the pensioner against fraud until the unconditional payment of the money to him. In Halsbury's Law of England, Fourth Edition, Reissue-Vol. 16, it has been observed on the subject as follows: Pension means, a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects which the Secretary of State is satisfied that it is to be paid in accordance with any scheme of arrangement having for its object or one of its objects to make provision in respect of persons serving in particular employments for providing them with retirement benefits and, except in the case of such a lump sum which had been paid to the employee, that: (1) the scheme or arrangements is established by Act of Parliament or of the Parliament of Northern Ireland, or other instrument having the force of law, or (2) the benefits under the scheme or arrangement are secured by an irrecoverable trust which is subject to the laws of any part of the Great Britain; or (3) the benefits under the scheme or arrangements are secured by a contract of assurance or an annuity contract which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia v. P.N. Menon, AIR (1994) SC 2221, this Court observed that not only in the matters of revising the pensionary benefits, but also in respect of revision of scales of pay a cut off date on some rational or reasonable basis has to be and can be fixed for extending the benefits. The cut off date may be justified on the ground that additional financial out lay is involved or the fact that under the terms of appointment the employee was not entitled to the benefit of the pension on retirement. (See Union of India and Ors. v. Lieut (Mrs.) E. locals, [1997] 7 SCC 334. Depending upon financial conditions a cut off date can be fixed when a new pension scheme is being introduced. (See State of Rajastshan and Anr. v. Amritlal Gandhi and Ors., [1997] 2 SCC 342. The High Court has referred to the fact that the Corporation did not frame any regulation and on following Part III of KSR it was paying pension to the employees at par with the government employees with some conditions. That according to the High Court made the position clear that no fixation of cut off date was involved. From the perusal of the order passed by the Division Bench, it appears that it proceeded on the basis as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dification, repeal or re-enactment of the statute that is referred will also have effect on the statute in which it is referred; but in the latter case any change in the incorporation statute by way of amendment or repeal has no repercussion on the incorporating statute. The rule that the repeal or amendment of an Act which is incorporated in a later Act has no effect on the later Act or on the provisions incorporated therein is subject to four exceptions. They are (i) where the later Act and the earlier Act are supplemental to each other, (ii) where the two Acts are in pari materia, (iii) where the amendment of the earlier Act if not imported in the later Act would render it wholly unworkable and (iv) where the amendment of the earlier Act either expressly or by necessary intendment also applies to the later Act. Even though only particular sections of an earlier Act are incorporated into later statute, in construing the incorporated provisions it may be necessary and permissible to refer to other parts of the earlier statute which are not incorporated. This does not however mean that a provision in the nature of a proviso or exception in the earlier Act which is not brought in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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