Madras High Court
The Management Of vs The Special Deputy Commissioner ... on 3 February, 2022
W.A.No.2302 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2022
CORAM
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice SATHI KUMAR SUKUMARA KURUP
W.A.No.2302 of 2021
The Management of
Tamil Nadu State Transport Corporation Ltd.,
37, Mettupalayam Road,
Coimbatore-43.
Represented by the Managing Director. .. Appellant
Vs
1.The Special Deputy Commissioner of Labour,
DMS Compound,
Chennai-600 006.
2.S.Visvanathan
3.Tamil Nadu State Transport Corporation
Employees Pension Fund Trust
(impleaded vide order 01.02.2022) .. Respondents
Appeal preferred under Clause 15 of Letters Patent against the
order passed in W.P.No.42554 of 2016 dated 15.03.2021.
Page 1 of 13
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W.A.No.2302 of 2021
For Appellant : Mr.A.Sundaravadhanan
For Respondents : Mr.V.Ajay Khose for R2 (workman)
Mr.C.S.K.Sathish for R3
(Pension Fund Trust)
Mr.T.N.C.Kaushik
Additional Government Pleader
JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
Challenge in this appeal is made to the order dated 15 March
2021 recorded on W.P.No. 42554 of 2016.
2. Learned advocate for the appellant / Management has
submitted that though the impugned order passed by the writ Court,
in substance may appear to be an invited order, the consequence
thereof is that, the period during which the workman was out of
employment would be required to be counted as pensionsable service,
which would stand in conflict with the Rules in that regard and to that
extent, the impugned order needs to be modified. It is submitted that
this appeal be entertained to that extent.
3. Learned advocate for the workman has submitted that,
not only no interference is required in the impugned order, confusion
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W.A.No.2302 of 2021
sought to be created by the Management with regard to payment of
pension, be cleared by holding that, since the action of the employer
of not allowing the respondent / workman to be on job is held to be
illegal, the employer can not be permitted to take advantage of some
concession given by the workman before learned Single Judge to the
limited extent of waiving his right to get the arrears towards back
wages. It is submitted that the workman is entitled to all
consequential benefits, including counting the period for which he
remained out of employment as pensionable service, so also for the
purpose of increment, wage revision, etc. He has relied on the
following authorities (i) T.N.State Transport Corporation v
Neethivilangan reported in (2001) 9 SCC 99, (ii) Jaipur Zila Shankari
Bhoomi Vikas Bank v Ram Gopal Sharma and others reported in
(2002) 2 SCC 244, (iii) Deepali Gundu Surwase v Kranti Junior
Adhyapak Mahavidyalaya and others reported in (2013) 10 SCC 324,
(iv) Mahabir Prasad v Delhi Transport Corporation reported in 2014
SCC OnLine Del 3757, (v) Jasmer Singh v State of Haryana and
another reported in (2015) 4 SCC 458, (vi) Fisheries Department v
Charan Singh reported in (2015) 8 SCC 150 and (vii) Raj Kumar v
Director of Education reported in (2016) 6 SCC 541.
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W.A.No.2302 of 2021
4.1 We have also heard Mr.C.S.K.Sathish, learned advocate
for the Tamil Nadu State Transport Corporation Management Pension
Fund Trust. In this regard reference is made to the orders dated 15
November 2021, 01 December 2021, 01 February 2022 and 02
February 2022. Reference is also made to the stand of the
Management as reflected in those orders. Since the argument on
behalf of the appellant / Management was principally with regard to
the calculation of years of pensionable service and the same was
required to be considered vis-a-vis the Rules and Policy of Pension
Trust, we had requested learned advocate for the Tamil Nadu State
Transport Corporation Management Pension Fund Trust to assist the
Court. For that purpose the said Trust was joined as party respondent.
We note with appreciation that, the Trust has assisted the Court by
putting to the notice of the Court, the relevant Rules with specific
reference to Rule 10 e, which reads as under:-
“e) If for a member there is a non-contributory
service, the STUs shall keep a record of such non-
contributory service and shall advise the member
of the non-contributory service from time to time
that such non-contributory service shall not be
counted for arriving the pensionable service.”
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W.A.No.2302 of 2021
4.2 Learned advocate for the Pension Trust has also referred
to the following authorities:- (i) Jaipur Zila Shankari Boomi Vikas
Bank Ltd v Ram Gopal Sharma and others reported in (2002) 2 SCC
244, (ii) Deepali Gundu Surwase v Kranti Junio Adhyapak
Mahavidyalaya and others reported in (2013) 10 SCC 324, (iii)
M.Mahendran v Secretary to Government Transport Department and
others reported in 2019 SCC OnLine Mad 27985, (iv) The
Management, Tamil Nadu State Transport Corporation and others v
M.Mahendran made in W.A.(MD).No.1157 of 2021, (v) A.P.State Road
Transport Corporation and others v Abdul Kareem reported in (2005)
6 SCC 36, (vi) The Management Metropolitan Transport Corporation v
G.Muthukrishnan (W.A.No.219 of 2019 dated 20.07.2021) and (vii)
P.Marimuthu v The Management Tamilnadu State Transport
Corporation (Salem) Ltd and others (W.A.No.1682 of 2019 dated
24.06.2019).
4.3 Learned advocate for the Pension Trust has submitted
that, taking into consideration the relevant provision and also the
financial constraints of the Trust, appropriate order be passed by the
Court.
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W.A.No.2302 of 2021
5. Having heard learned advocates for the respective parties
and having considered the material on record, this Court finds as
under:-
5.1 The respondent / workman was in the employment (as
Conductor) of the appellant Corporation since 09.05.1988. He was
treated to be in regular employment with effect from 01.11.1988. His
date of retirement is 30.04.2019. (These dates are reflected in the
pension working sheet submitted by the Management to the Court).
5.2 He was terminated on 25.03.2013.
5.3 Approval Petition was filed by the Management before the
Special Deputy Commissioner of Labour, Chennai which was
considered by the said authority in Approval Petition No.112 of 2013.
The said petition was rejected vide order dated 09.05.2014 inter-alia
holding that the domestic inquiry was illegal and further that, it was
without any legally acceptable evidence.
5.4 The said order dated 09.05.2014 was challenged by the
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W.A.No.2302 of 2021
Management before this Court by filing W.P.No.42554 of 2016. Before
the petition was filed, the workman was already reinstated in service
by the Management with effect from 19.07.2015. This is accepted to
be without prejudice to the rights and contentions of the Management
in the writ petition. The net result is that, the workman was out of
employment for the period from 25.03.2013 to 16.07.2015 and his
reinstatement is subject to outcome of the petition.
5.5 During pendency of the petition, the workman attained
the age of superannuation and retired on 30.04.2019.
5.6 When the petition was taken up for final hearing on
15.03.2021, it was disposed of without any interference in the
impugned order (rejecting approval application). Since the workman
would be entitled to all consequential benefits, considering the
concession given on behalf of the workman, learned Single Judge
ordered that the workman shall not be entitled to back wages for the
period from 25.03.2013 to 19.07.2015 and further providing that the
said period shall be counted as duty period for all purposes, including
for the purpose of calculation of pension. The payment was ordered to
be made within a period of six weeks.
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W.A.No.2302 of 2021
6. The above order of learned Single Judge is challenged in
this appeal. This challenge is more on the ground of facing some
difficulty in the calculation of years of pensionable service, as noted in
para : 2 above. So far the principal controversy with regard to non
approval of termination of the workman is concerned, the competent
authority has for valid reasons disapproved it and learned Single
Judge has also not interfered with it. We also do not find any error
therein. The said part therefore needs to be and is confirmed.
7. So far consequences thereof are concerned and as noted
above that is the controversy in this appeal, this Court finds that,
since the action of the Management of terminating the service of the
workman is held to be illegal and it has attained finality, the same
needs to be understood as the declaration by the competent authority
about the termination in question being illegal for all purposes, with
all consequences flowing therefrom. The order of learned Single Judge
dated 15.03.2021 was to be complied with within a period of six
weeks. No payment was made to the workman. The challenge in this
appeal is principally on the ground, as noted in order dated
15.11.2021 and 01.12.2021 in substance is to the effect that, the
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W.A.No.2302 of 2021
consequence of the impugned order is that, the period during which
the workman was out of employment would be required to be counted
as pensionsable service, which would stand in conflict with the Rules
in that regard and to that extent, the impugned order needs to be
modified.
8. On conjoint consideration of the above leads to the
conclusion that, on the face of the approval petition of the appellant /
Management qua the termination of service of the respondent /
workman having been rejected by the competent authority by a
speaking order and further the said order having been confirmed by
this Court in writ petition and this writ appeal, the next question is,
what would be the consequence thereof. Since learned Single Judge
attempted to balance the equities between the parties and for that
purpose concession was given on behalf of the workman that he
forgoes the actual payment of arrears towards back wages for the said
period, we find that, the said concession can not be stretched to the
extent that the said period is to be counted as non pensionable
service. The Management can not be heard contending that, in
absence of any actual payment of arrears, there will not be any
payment to Pension Trust Fund and that is how that period has to be
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W.A.No.2302 of 2021
excluded as non-pensionable service. We are of the view that the
concession on behalf of the workman can not be understood to that
extent. As noted in order dated 01 December 2021, at one stage, we
had also thought of relieving the workman from that concession,
however it would result in additional liability on the public exchequer,
therefore we have thought it proper not to do so. This is because,
even if it would not have been on the basis of concession, but on the
basis of adjudication by the competent court, it can not be said that
the period during which the workman was not in actual employment
will automatically be excluded from consideration as non-pensionable
service. Once the action of the Management is held to be illegal, the
said action is illegal for all purposes and for all consequences. In a
given case, either Labour Court or the Writ Court, in the facts of the
case may exercise discretion, on permissible parameters, of granting /
not granting back wages but exercise of that power under no
circumstances can be read as exclusion of that service as non-
pensionable service as sought to be canvassed on behalf of the
appellant / Management. We make it clear that even in those cases,
where back wages is not granted for valid reason, the very fact that
the termination was held to be illegal, the period during which the
workman had remained out of employment for no fault attributable to
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W.A.No.2302 of 2021
him, has to be counted as pensionable service unless it is so
specifically ordered / provided by the Court. Even with the aid of
stipulation 10 e as quoted above, permitting the Management or the
Pension Trust to exclude the said period as non pensionable service
would result in acceptance of the said termination to be valid for
limited purpose which is already held to be illegal. No one can be
permitted to take advantage of / benefited from his own wrong. The
workman can not be asked to suffer, for not being in the employment
for the fault of his employer. Keeping this in view, we find that,
harmonious reading of all the decisions relied by learned advocate for
the Pension Trust would lead to this conclusion only. So far financial
constraints are concerned, it is a matter to be reconciled by the
Pension Trust and the Management of the respective Transport
Corporations. Such administrative difficulties can not be permitted to
be stretched to the extent of reduction of pension for no fault on the
part of the workman.
9. This appeal is dismissed in above terms. No costs.
Consequently, connected C.M.P.No.14624 of 2021 would not survive.
(P.U., J) (S.S.K., J)
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W.A.No.2302 of 2021
03.02.2022
Index:Yes
ssm/6
To
1.The Special Deputy Commissioner of Labour,
DMS Compound,
Chennai-600 006.
2.Tamil Nadu State Transport Corporation
Employees Pension Fund Trust
https://www.mhc.tn.gov.in/judis
W.A.No.2302 of 2021
PARESH UPADHYAY, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
ssm
W.A.No.2302 of 2021
03.02.2022
https://www.mhc.tn.gov.in/judis
