Madras High Court
The Managing Director vs T.Srinivasan on 9 April, 2021
W.A.(MD)No.835 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.835 of 2021
and
C.M.P.(MD)No.3708 of 2021
The Managing Director,
The Tamil Nadu State Transport Corporation (Madurai) Ltd.,
Bye Pass Road,
Madurai – 625 016. : Appellants
Vs.
T.Srinivasan : Respondent
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent, to set
aside the order passed in W.P.(MD)No.2830 of 2016 dated 10.02.2016 and
allow this Writ Appeal.
For Appellant : Mr.A.Jeyaram
Standing Counsel
For Respondent : No appearance
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W.A.(MD)No.835 of 2021
JUDGMENT
***************
[Judgment of the Court was delivered by T.S.SIVAGNANAM, J.]
This appeal by the Managing Director of the Tamil Nadu State
Transport Corporation (Madurai) Ltd., is directed against the order dated
10.02.2016 in W.P.(MD)No.2830 of 2016.
2.We have heard Mr.A.Jeyaram, learned Standing Counsel for
the appellant Corporation. Notice on the respondent has been served
through substituted service via paper publication and his name is printed
in the cause list but none appeared for the respondent. Therefore, the
appeal is taken up for hearing.
3.It is submitted by the learned Standing Counsel for the
appellant Corporation that identical issue was considered by the Division
Bench in W.A.(MD)Nos.939 to 944 of 2017 and by judgment dated
27.03.2018, the appeal was allowed in favour of the appellant
Corporation, wherein it was held that persons similarly placed as that of
the respondent are not entitled for the encashment of un-earned leave on
private affairs. The operative portion of the judgment reads as follows:
“7.It is an admitted fact that G.O.Ms.No.488,
Finance (Pension) Department, dated 12.08.1996
issued by the State Government did not extend the
benefit of encashment of unearned leave on private
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W.A.(MD)No.835 of 2021
affairs at the time of retirement to the State
Government undertakings or statutory bodies etc and
such benefit was extended to the Government servants
and the maximum period was stipulated as 90 days.
Thus, by virtue of G.O.Ms.No.488, Finance (Pension)
Department, dated 12.08.1996, the respondents/writ
petitioners cannot make a claim for the encashment of
the unearned leave on private affairs.
8.The problem arose on account of a letter, dated
28.01.2008. Admittedly, the Government order cannot
superseded by a Government letter, which has been
issued by the Secretary of the Government. At the best,
it is advisory and not mandatory in which, a
clarification was issued that the scheme of encashment
of unearned leave on private affairs ordered in
G.O.Ms.No.488, Finance (Pension) Department, dated
12.08.1996 may also be extended of employees of
statutory bodies and the State Government
undertakings. It appears that a thorough exercise was
not undertaken by the Finance Department before
issuing the Clarificatory Letter, dated 28.01.2008.
Subsequently, it appears that the matter was brought
to the knowledge of the Finance Department, the
Secretary to the Government of Tamil Nadu and
appropriate clarification was issued by the Government
on 15.02.2012, whereby, making it clear that if a State
Public sector undertaking has such a provision in their
Regulations and Service Rules, they may continue to
do so. In the said Government letter, in paragraph No.
3, the Government specifically took note of the fact
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W.A.(MD)No.835 of 2021
that few State Public Sector Undertakings have
extended the benefit of encashment of Unearned Leave
on Private Affairs to their employees, even though
there was no provision in their services rules for
extension of such benefit and seek later orders for
ratification from the Government. That apart, in
paragraph No.4(ii), the Government had specifically
clarified that the scheme should not be extended to the
employees of State Public Sector Undertakings, whose
Service Rules did not contain the provision for
encashment of unearned Leave on private affairs.
9.Thus the mistake committed by the Government
in issuing a letter, dated 28.01.2008, stood and
appropriately clarified by the Finance Department. In
the interregnum ie., in the year 2010, the Board of the
appellants/Transport Corporation placed the
Government Order, dated 28.01.2008 for consideration
and the decision taken in the meeting held on
15.06.2010 states recorded for implementation. The
fact remains that though such resolution was passed,
the same remained un-implemented and well before
that could take place, the Government had clarified
that such scheme will not apply to State Public Sector
Undertakings whether there is no Service Rule or
Regulation to that effect. Therefore, reliance placed on
resolution by the learned counsel for the
respondents/writ petitioners is self-serving, it is more
so, because the respondents/writ petitioners, who have
came forward before this Court claiming the benefits
are all persons in the Managerial/Supervisory cadre.
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W.A.(MD)No.835 of 2021
10.Insofar as the decision in the case of Tamil
Nadu Tata Plantation Corporation Limited is
concerned, we find that the case is factually different
and taking note of the conduct of the respondents in
the said case, the Division Bench had issued the
direction. In any event, we find that the correctness of
the said decision has been challenged before the
Honourable Supreme Court and stay of the Judgment
has been granted in S.L.P.No.23510- 23513/2016,
dated 14.12.2016.
11.As noticed above, there is a separate Service
Rule for the employees of the appellants/Transport
Corporation. Annexure-II of the common Service Rules
deals with Unearned Leave and on perusal of the said
Rules, we find that there is no such Leave Rule called
as unearned leave on private affairs. Thus, unless and
until, such a leave is contemplated under the Service
Rule, the question of encashment does not arise. It is to
be noted that all the respondents/writ petitioners have
all served in the appellants/Transport Corporation and
were bound by the Service Rules framed by the
Corporation. Therefore, at this distant point of time,
after they attained the age of superannuation, the
question of claiming such a benefit does not arise.
12.In the result, these Writ Appeals are allowed
and the order, dated 02.12.2016 passed in
W.P(MD)Nos.2323, 18731, 18732, 18736, 20830,
20831, 20836, 20003, 20004, 21517 and 22882 of
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W.A.(MD)No.835 of 2021
2016 are set aside and the Writ Petitions are
dismissed. The other writ petitions, which has been
posted along with the Writ Appeals, are also dismissed.
No costs. Consequently, connected Miscellaneous
Petitions are closed.”
4.Following the above judgment, this Writ Appeal is allowed.
However, there shall be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
[T.S.S., J.] & [S.A.I., J.]
09.04.2021
Index : Yes / No
Internet : Yes / No
MR
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.835 of 2021
T.S.SIVAGNANAM, J.
AND
S.ANANTHI, J.
MR
JUDGMENT MADE IN
W.A.(MD)No.835 of 2021
09.04.2021
https://www.mhc.tn.gov.in/judis/
