SUPERANNUATION CLAIM

Otago Daily Times, Issue 23687, 20 December 1938, Page 16

SUPERANNUATION CLAIM

JUDGMENT FOR APPLICANT : t PAYMENT TO RAILWAY SERVANT EFFECTS OF FINANCE ACTS (Peb United Press Association) ,-- WELLINGTON, Dec. 19. Judgment in favour of George Potticary Holland, of Petone.a retired railway servant, in a claim against the Government Railways Superannuation Fund Board, was given-by the Chief Justice (Sir Michael Myers) in the Supreme Court,- Wellington, to-day. Holland claimed that he was entitled to superannuation allowance based on his rate of pay at the date of his retirement. July 3, 1937, this rate of allowance being £253 7s a year. The defence was that he was entitled • to superannuation based on the average salary during the last three years of service. For the first two of. those three years, the plaintiff's' salary.,vwas' subject to statutory reductions -and,, up to the date of the action, he was paid, superannuation at the rate of £233 2s a year. -•'■■ His Honor dealt with the meaning of the proviso contained in Section 116 of the Government Railways ; Act, effecting that where an employee had, within three years previous to his retirement, served in any.grade beneath that held by him at the time of his retirement, his pay should be deemed to be the average rate of pay received by. him during the three years next preceding his retirement. The judg* ment stated:— "The Solicitor-general contends that the' words ' any grade' must be read as meaning 'any pay category.' I am unable to see.any good reason for construing the Words in : any other than their primary meaning. The word. ' grade' must, in my-opinion, be read in the light of the classification provisions of the Act, which provide for classification' in grades, and of the actual classification regulations made in .1930. It may be, however, that' grade,' as read in section 116 (1).. must be read as including 'sub-grade,',in which case it should be read as meaning ' grade or sub-grade.' If that be so, then, if during the three last years of service a member .has served in different grades or in different subgrades of the same grade, the averaging provision would come into play. But it is unnecessary.to determine that point here, for in. this case it is common ground that, during the whole of his last three years of service, the plaintiff served in one and the same grade and sub-grade. ■■ That being so, I am clearly or the opinion that he comes within the first part-of subsection (1) of section 116. and that the words of the sub-section commencing ' unless within the previous three years' have no application. "Even if. contrary to my opinion, the Solicitor-general's contention were right that the words 'in any grade mean ' in any pay category,' I should still think that the plaintiff must succeed because his pay category during the whole three years was £3150 per annum. That was. the ' pay category' provided for by the classification regulations though, in fact, the pay actually received during the first two years was reduced by provisions of the Finance Acts and National Ex- ; penditure Adjustment Act. and the plaintiff, if he had retired during those two years, would have.been subject to the provisions of section 8 of the Finance Act (No. 1), 1931. In my opinion, on the true construction of section 116 of the Government Railways Act, the plaintiff is entitled to superannuation computed on the basis of the rate of pay he was receiving at the time of his retirement, namely £3BO per annum, and the superannuation allowance to which he is entitled is therefore £253 7s per annum. There, will be a declaratory judgment accordingly. "It is gratifying to know, according to what I was informed from the Bar, that my conclusion so far as this caseis concerned agrees with the practice. that'obtained prior to 1931, and, pre-; sumably, ever since 1901. In a case' like the present the construction, adopted by the department was that where a superannuitant had held as ; position with the same title, as in this, case, for the last three years of his. service, but with varying rates of pay, his superannuation was paid on the. basis of his last year's" pay. Appar4 ently. however, the department in 1931 • altered its .practice and the matter seems to have been in dispute ever, since, though it is only now that the dispute has come to a head. The reason for the alteration was not given to me, but it may be that it was due to some interpretation which the de-. partment placed on the provisions of. section 8 of the Finance Act., 1931. Furthermore, the effect of the present contention made on behalf of the defendants would cause serious injus- ; tice to, the plaintiff. In point .of fact, during the first two of his last three vears of service, he paid contributions to the Superannuation. Fund ,on the rate of pay actually received by him and not on £3BO. The aggregate difference, however, for the whole period;, would not be more than £2 or £3, andthe contention of the defendants, if sound, would result in his being, mulcted now in the loss of £2O 5s per annum for the remainder of his' life." ?