Madras High Court
A. Ayya Samy vs The Secretary To Government on 17 November, 2021
W.P.(MD) No.7343 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.11.2021
CORAM
THE HON'BLE DR.JUSTICE ANITA SUMANTH
W.P.(MD)No. 7343 of 2018
and
W.M.P.(MD).No.7029 of 2018
A. Ayya Samy .. Petitioner
Vs.
1. The Secretary to Government,
Transport Department,
Government of Tamilnadu,
Fort. St. George,
Chennai -9.
2. State Express Transport Corporation Tamilnadu Ltd.,
Through its Managing Director,
Pallavan Salai,
Chennai. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, for the
issuance of certiorarified mandamus after calling for records pertaining to the
orders dated 07.11.2005 in letter No.50597/C4/SETC/05 and dated 22.11.2016 in
letter No.61246/C4/SETC/2016 passed by the second respondent and quash the
same and consequently direct the respondents to pay monthly pension to the
petitioner w.e.f. 01.01.1988 with arrears and other consequential benefits for the
service rendered by him from 25.09.1960 to 31.03.1982 in the erstwhile
Tamilnadu State Transport Department, together with interest at the rate of 12 %
per annum award costs.
For Petitioner : Mr. S. Arunachalam
for R. Murugan
For Respondent : Mr. K.S. Selvaganesan
Counsel for State for R1
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W.P.(MD) No.7343 of 2018
Mr. K. Sathiya Singh
Standing Counsel for R2
ORDER
The petitioner was working as a Conductor in the Tamil Nadu State
Transport Department, appointed on 25.09.1960. His services were made
permanent and he was brought into time scale of pay with effect from
01.01.1962.
2. With the formation of the Transport Corporations in 1975, a
Government Order was issued in G.O.Ms.No.378, dated 18.04.1975 to the
effect that employees of Tamil Nadu State Transport Department, who were
absorbed in the Transport Corporations and who had completed the
qualifying service of 10 years or above, would be entitled to pension from
the State Department from the date of absorption, in addition to their salary.
3. An option was called for from the employees as to whether they
wished to continue under the prevalent rules that is the Operational
Subordinate Service Rules, 1960 (OSSR) or in other words the Non-
Pensionary Contributory Provident Fund Scheme or the New Madras
Liberalised Pension Rules, 1960 (1960 Rules).
4. The last date for exercising the option was fixed as 30.06.1974.
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The petitioner has specifically averred at paragraph 5 of the affidavit filed
in support of the writ petition that he did not exercise option to continue
under the OSSR, 1960.
5. Thus, and in the case of those persons who had not exercised the
option, G.O.Ms.No.212, Transport Department dated 28.03.1974, provided
that the provisions of the 1960 Rules, would automatically apply. Thus,
according to the petitioner, he is entitled to the pension as per the 1960
Rules, and G.O.Ms.No. 378, dated 18.04.1975.
6. The matter of grant of pension thereafter took some twists and
turns in the form of litigation that concluded by a judgment of the Hon’ble
Supreme Court in the case of Government of T.N. And Others vs. M.
Anachu Asari and Others [(2005) 2 SCC 332].
7. Thereafter, G.O.Ms.No.42, dated 27.05.2005, came to be issued
calling for applications from erstwhile employees of the State Transport
Department for the grant of pension and the petitioner made such
application.
8. The offer to pay gratuity under the OSSR was made to him, which
offer was also rejected. Reference in this regard is made to in Letter No.
29343/T3/TTC/86 dated 16.04.1998, wherein the Senior Deputy Manager
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W.P.(MD) No.7343 of 2018
of the Thiruvalluvar Transport Corporation Limited states as follows:
“To
The Under Secretary to Government,
Transport Department,
Fort St. George,
Madras – 600 009.
Sir,
Sub: Terminal Benefit – Thiru A. Iyyasamy, C.I.
St. No. 375 – settlement – Regarding.
Ref: 1. Govt. Lr. No. 54517/RW.II-8/86 dated
22.09.87.
2. Representation received from the employee
dated 12.11.87.
-----ooo----
We invite your kind attention to the Govt.
letter 1st cited. Thiru A. Iyyasamy, Conductor
2005 Checking Inspector st.No. 375 was
santioned a sum of Rs. 1,645/- as terminal benefit
under OSSR vide reference 1st cited. Accordingly
the amount was sent to the employee through
Branch Manager Madurai during 10/87 by the
individual refused to accept the cheque stating
that he does not want to settle his dues under
OSSR and he wants to settle his dues under
pension for the service rendered by him the
erstwhile TSTD.
In this connection it is to point out that his
option as per G.O.Ms.No. 212/Tpt dated 28.03.74
to the governed by OSSR only has been made in
the service register at page No.12. As he was
opted within the stipulated time he is entitled
only to get OSSR gratuity and the bill claimed
accordingly, the cheque has since been cancelled
on 1.4.88.
The representation now received from the
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employee is sent in original for further action at
Government level if any.”
9. The case of the respondent is specific to the effect that he had not
exercised the option for OSSR and thus is entitled to the gratuity payable
under the 1960 Rules. It thus boils down to whether an option for OSSR
has been exercised by the petitioner or not and the counter filed by the
second respondent assumes some importance here.
10. At paragraph 5, R2 states that, upon scrutiny of the service book
of the petitioner, an entry has been made for the sanction of a sum of Rs.
1645/- towards OSSR Gratuity for the services rendered by him in the
TNSTD. The records were thus called for though, in any event, the
petitioner has also obtained a copy of the service records under RTI and has
placed the same along with the writ petition.
11. The original records were summoned to ensure integrity of the
copies supplied by the petitioner. Page No.12 of the records referred to in
the counter contain the following entry:
“Thiru. Iyyaswamy, Conductor St.No.2005
has exercised his optiion to continue in OSS
Rules within the stipulated time with reference to
G.O.Ms.No.212 Transport dt. 28.03.74, vide
Lr.no. 8047/cm/75 of the Depot superintendent
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erstwhile TSTD addressed to SAO(R) and GR no
3564/R3/TTC/Po. Dt. 5.11.80 of the B.M.
Coimbatore addressed to G.M.T.T.C”
12. While the recording by the Section Officer is to the effect that the
petitioner has exercised his option, there is no option form that
accompanies the entry and the respondents were specifically called upon to
support the statement in counter, which only refers to the noting at page 12
of the service book. No option form is produced before the Court.
13. It is also pointed out to them that what is mentioned in the
counter is only page No. 12 of the service records and not the existence of
an option form itself, to support their statement that the petitioner has in
fact exercised such option. However, and in light of the position that there
is no option form that is placed before the Court nor referred to in counter,
the only conclusion that the court can arrive at is that there has been no
option exercised by the petitioner at all.
14. This very issue has engaged a learned single judge in W.P.(MD)
No.19921 of 2017 and batch who by order dated 24.01.2018, has come to
the conclusion that the petitioners in those cases could not be asked to
prove the contrary and produce the option forms that they are stated to have
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submitted to the respondents.
15. That order, dated 24.01.2018, has been stayed by a Division
Bench of this Court in a writ appeal filed by the State, by order dated
22.11.2019, for the reason that in the course of the hearing before the
Division Bench, the State counsel circulated option forms signed by all 14
of those writ petitioners.
16. In the present case, despite the pendency of the matter since 2018
no form has been produced. The counter does not refer to an option form
and only refers to page 12 of the service book. I am thus inclined to accept
the case of the petitioner as stated in affidavit that the option under
G.O.Ms.No.212, Transport Department, dated 28.03.1974, has not been
exercised by him at all.
17. In any event and needless to say, should the option form be
located by the respondents at a later date, proving the averments of the
petitioner to be false, it is always open to them to produce the same before
the Court and establish their case.
18. Yet another argument advanced is in regard to the delay in the
petitioner approaching this court. As order dated 07.11.2005 rejects the
claim of the petitioner, respondents would contend that there is substantial
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laches on the part of the petitioner and this writ petitioner is not
maintainable.
19. The sequence of events that have transpired in this matter,
would, in some measure, explain the intervening delay. No doubt the
petitioner has not challenged order dated 07.11.2005 till the filing of the
present writ petition and has filed a representation only on 31.10.2016
seeking the benefit of pension.
20. In the meantime, the issue of grant of pension was itself the
subject matter of litigation that concluded with the judgement of the
Supreme Court in the case of M. Anachu Asari and Other (supra). That
apart, W.P.(MD)No.1181 of 2008, came to be filed by a similarly placed
employee, seeking a mandamus directing the respondents to provide
pensionary benefits in terms of the Madras Liberalised Pension Rules and
that writ petition came to be allowed on 08.10.2009.
21. It is relevant to note that the facts are almost identical and at
paragraphs 12 and 13, he points out the absence of the option form in that
case as well stating as follows:
“ 12. A perusal of the service register of the
petitioner reveals that right from the date of his
temporary appointment in 1968, there has been
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periodically endorsement with regard to the
various service benefits option within the
stipulated period, the same should have been
incorporated in the service register mentioning
the date on which such option has exercised. The
argument was put forth on behalf of the
respondents to state that the present service
register is which has maintained by the Transport
Corporation and there are earlier records when
the petitioner was a Government employee. This
contention has to be rejected since the Service
register produced is a singe service record and
contains all the entries from the date on which the
petitioner became the employee of the
corporation. There is no record produced to show
under what circumstances, the Branch Manager
had singed the said option form on 13.06.1980.
Admittedly as on 13.06.1980, no employee
exercised the option since the cut off date has
been fixed as 30.06.1974. Considering the facts
of the case which arose in the particular case, I
am of the view that the benefit should go in favour
of the employee. The respondents are not able to
explain as to why such option was not recorded in
the service register as on 30.06.1974 and done
only on 11.04.1979. Further, the date namely
11.04.1979, does not find place in the option form
whereas the Branch manager of Kattabomman
Transport Corporation Limited, General Depot,
Tirunelveli has signed on 13.06.1980. This has
also not been explained before this court by
producing any record.
13. Learned counsel for the respondents
corporation would submit that there are several of
such persons who would stake such a claim like
that of the petitioner by stating that they have all
completed more than 10 years as on 01.04.1982.
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W.P.(MD) No.7343 of 2018
I am of the view, the present case is peculiar in its
facts and circumstances that this court is
convinced that option was not exercised by the
petitioner within the cut off date and there is no
record to establish that the said form was signed
by the petitioner before the cut off date.
Therefore, any decision in the present case cannot
have a bearing in respect of any other claims.”
22. The State carried the matter in writ appeal and by order dated
28.01.2011, W.A.(MD) N0.40406 of 2010 (in SR Stage), came to be
rejected both on the ground of delay as well as on merits. At paragraph 6,
the Division Bench states as follows:
“ 6. As per G.O.Ms.212, dated 28.03.1974,
an option to stay under OSSR rules has to be
exercised on or before 03.06.1974. According to
the appellants, such an option was exercised by
the respondent. Hence, the respondent is not
eligible for the benefit under the Madras
Liberalised Pension Scheme. An endorsement
with regard to the alleged option was recorded in
the service register of the respondent only on
11.04.1979 that is much later from the cut of date
I.e., 30.06.1974. Though in the copy of the
proforma for the option, the date of signing was
shown as 24.06.1974, the Branch Manager of the
Kattabomman Transport Corporation Limited,
General Depot, Tirunelveli had singed the same
only on 13.06.1980 that is after six years. The
learned single judge by carefully going through
all these aspect has come to a conclusion that the
so-called option exercised by the employee should
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have been subsequently dated from the cut off date
ie., 30.06.1974. Further, learned Single Judge has
found that as per G.O.Ms.No.378 and 1028 and
284 (Finance) Department the employee who has
completed 10 years of service with the
Government is entitled to the benefits as provided
under G.O.Ms. 212 and the cut off date has been
fixed as on 01.04.1982. We do not find any
infirmity in the order passed by the learned Single
Judge. In fact, the learned Single Judge by
carefully gone through the records and correctly
allowed the prayer of the respondent. Under such
circumstances, we are of the view by condoning
the delay of 323 days, no useful purpose is going
to be served in the main Writ Appeal. Therefore,
we are not inclined to allow this petition. Hence,
this application is dismissed. The petitioners are
directed to pay pensionary benefits to the
respondent within a period of eight weeks from the
date of receipt of a copy of this order.”
23. Not content with the order passed in writ appeal, the State carried
the matter to the Supreme Court, which by judgment dated 07.05.2014
confirmed the order passed in writ appeal, only stating that if a double
benefit had been received by the employee, both by way of pension as well
as by way of gratuity under OSSR, then the amount paid under the OSSR,
shall be refunded to the State along with interest at the rate of 8 percent per
annum calculated from the date of receipt of gratuity till date of payment.
24.The question of refund in this case would not arise, since as
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earlier stated, the cheque sent in settlement to the gratuity under OSSR was
returned by the petitioner as confirmed by the respondent vide
communication dated 16.04.1988.
25. In light of the discussions as aforesaid, this writ petition is
allowed and orders of R2 dated 07.11.2005 and 22.11.2016 are quashed.
No costs. Consequently, connected miscellaneous petition is closed.
17.11.2021
Index: Yes/No
Speaking/non-speaking
Internet: Yes
mnr
Note : In view of the present lock
down owing to COVID-19
pandemic, a web copy of the order
may be utilized for official
purposes, but, ensuring that the
copy of the order that is presented
is the correct copy, shall be the
responsibility of the
advocate/litigant concerned
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W.P.(MD) No.7343 of 2018
To
1. The Secretary to Government,
Transport Department,
Government of Tamilnadu,
Fort. St. George,
Chennai -9.
2. State Express Transport Corporation Tamilnadu Ltd.,
Through its Managing Director,
Pallavan Salai,
Chennai.
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W.P.(MD) No.7343 of 2018
DR.ANITA SUMANTH, J.
mnr
W.P.(MD)No. 7343 of 2018
17.11.2021
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