Madras High Court
Periya Milaguparai vs Ponnambalam on 9 August, 2023
2023/MHC/3785
W.A.(MD)No.966 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.08.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)No.966 of 2015
and
M.P.(MD)No.2 of 2015
1.The Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Rep. by its Managing Director,
1.Periya Milaguparai,
Tiruchirapalli – 1.
2.The Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Rep. by its Managing Director,
Kumbakonam. ...Appellants
/Vs./
1.Ponnambalam
2.The Government of Tamil Nadu,
Rep. by its Secretary to Government,
Transport (TBC) Department,
Fort St.George,
Chennai. ...Respondents
1/12
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W.A.(MD)No.966 of 2015
PRAYER:- Writ Appeal - filed under Clause XV of Letters Patent Act, to
set aside the order passed by this Court dated 04.08.2013 in W.P.
(MD)No.5507 of 2007 on the file of this Court.
For Appellants : Mr.S.C.Herold Singh
For Respondents : Mr.M.Saravanakumar (R1)
Mr.M.Siddharthan (R2)
Additional Government Pleader
JUDGMENT
(Judgment of the Court was made by DR.ANITA SUMANTH, J.)
The writ petitioner joined the services of the Transport
Department of the Government of Tamil Nadu, as Heavy Transport
Vehicle Driver, holding Employee number 5338 on 06.09.1969. The
vehicle allotted to him had suffered an incident, whereby a child had
been injured and subsequently, passed away. He was tried for offences
under Section 304 of IPC by the First Additional Magistrate at
Thiruvellore and convicted in C.C.No.434 of 1970 on 07.07.1971.
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W.A.(MD)No.966 of 2015
2. Based on the criminal case, proceedings were initiated for
suspension and he was suspended from duty for the period between
22.10.1971 and 19.03.1972. The writ petitioner had suffered an order of
conviction on 17.07.1971 and an appeal had been preferred before the
Sessions Judge, Chengalpattu, that came to be dismissed on 13.12.1971.
A criminal revision petition in Crl.R.C.No.1239 of 1971 filed by him was
allowed on 02.11.1972. During the pendency of the criminal case, the
writ petitioner had been dismissed on 20.03.1972. The criminal revision
petition had been allowed on 02.11.1972.
3. Thus, with the aforesaid acquittal, the conviction and
sentence originally imposed were set aside. He intimated the same to the
Transport Department on 21.01.1973 joining duty on 17.01.1974. In the
interests of clarity, the total period of suspension is from 22.10.1971 to
19.03.1972 and from 20.03.1972 to 16.01.1974.
4. All employees of the erstwhile State Transport Department
were absorbed into the services of the Tamil Nadu State Transport
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W.A.(MD)No.966 of 2015
Corporation, Kumbakonam (earlier Cholan Roadways Corporation) and
the writ petitioner was absorbed in that Corporation with effect from
28.06.1975.
5. At that juncture in time, there was no pension scheme in
force for employees in the Transport Department and it was only
pursuant to the Judgment of the Hon'ble Supreme Court in SLP Civil
Appeal Nos.1444 to 1445 of 1999 dated 29.10.2003 and Judgment dated
01.02.2005 in Review Petition Civil Nos.648 to 649 of 2004, that the
Government of TamilNadu issued G.O.Ms.No.42, Transport (RW)
Department, dated 27.05.2005 providing for payment of pension to
employees in the Transport Corporation.
6. That GO provided for pension to be paid to erstwhile
TamilNadu State Transport Department employees, who had been
absorbed in the State Transport Corporation. The pre-condition for such
payment was that the employee should (i) have retired either prior to
01.01.1988 or after 01.01.1988 and before 01.09.1998, and (ii) have put
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W.A.(MD)No.966 of 2015
in qualifying service of 10 years as on 01.04.1982. The period of daily
paid services, leave on loss of pay and suspension treated as specific
punishment were to be excluded while arriving at net qualifying service.
7. The petitioner superannuated on 30.04.1992. It was only
with issuance of G.O.Ms.No.42, Transport (RW) Department, dated
27.05.2005 that the petitioner made a claim before R1 / State Transport
Corporation seeking pension, being of the view that he had achieved the
qualifying criteria of 10 years of pensionable service.
8. The request has been rejected by way of order dated
18.01.2007 to the effect that the writ petitioner does not qualify for
pension for the reason that the claim was made belatedly. WP(MD)No.
5505 of 2007 thus came to be filed by the petitioner seeking a quash of
the order of rejection and seeking a consequent direction to the Transport
Department to regularize his services for the period between 22.10.1971
and 19.03.1972 and between 20.03.1972 and 16.01.1974 with backwages
and other service benefits along with pension. To be noted, there has
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W.A.(MD)No.966 of 2015
been no claim for backwages by the writ petitioner at any point of time
and even before us his learned counsel would specifically eschew such a
claim.
9. Thus, and to reiterate, Writ petitioner has pursued his prayer
only for continuity in service for eligibility of pensionable service and
pension and has given up all other claims including backwages. The
Writ petition came to be allowed on 08.04.2013. As regards the rejection
on the ground of laches / delay, writ petitioner's contentions have been
accepted by the writ Court noticing that it was only with the issuance of
G.O.Ms.No.42, Transport (RW) Department, dated 27.05.2005 that the
employees of the State Transport Corporation became eligible for
pension per se.
10. Hence, there could not have been no prior enabling
occasion when such employees including the petitioner could have
approached the authorities concerned seeking payment of pension. At
para 4, of order dated 08.04.2013, after a detailed discussion referring to
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W.A.(MD)No.966 of 2015
the Judgment of the Hon'ble Supreme Court and the GO as aforesaid,
Writ Court has found the application of the petitioner to be well in time.
11. On the question of entitlement of pension itself, the service
records were called for and the Writ Court has found that the entirety of
the period of suspension between 23.10.1971 and 22.11.1973 would
stand regularized. In this context, a reference is made to the pages 14
and 15 of the service register and an endorsement made by the authority
on 29.09.1988 to such effect.
12. We agree with the view of the Writ Court that the services
of the employee for the period between 23.10.1971 to 22.11.1973 are to
be regularized. The writ petitioner has initially joined on daily wages
and his services were regularized on 01.08.1970. We find on a perusal of
the Service Register (portion relating to his services in the Transport
Department), that the factum of his suspension, dismissal and
reinstatment pursuant to acquittal, have been duly recorded. There is an
endorsement to the effect that such periods would be treated as leave on
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W.A.(MD)No.966 of 2015
loss of pay. There is no specific order regularizing the service for this
period.
13. However, in the present case, there has been a conscious
decision of the respondents not to initiate disciplinary proceedings. The
suspension, dismissal and subsequent reinstatement of the writ petitioner
have had their genesis only in the criminal proceedings and acquittal. We
are hence of the considered view that the periods would stand regularized
without any further necessity for departmental intervention in this regard.
This is the tone and tenure of the order of the Writ Court as well, with
which we concur.
14. Infact, we would go so far to say that the endorsements
made by the authorities of the State Transport Corporation in 1989 would
be wholly uncalled for, since they deal with a position prior to 1975,
when the writ petitioner was not an employee of the Transport
Corporation but of the State Transport Department. That chapter in the
service of the writ petitioner stands closed, and with the absorption of the
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W.A.(MD)No.966 of 2015
writ petitioner in the State Transport Corporation in 1989, there is no
justification for the subsequent employer to intervene in that regard.
15. To reiterate, there need be no separate order of
regularization by the Transport Department for the reason that there has
been no departmental intervention by the authorities in regard to his
service even at the first instance, consciously.
16. G.O.Ms.No.42, Transport (RW) Department, dated
27.05.2005 makes a reference to the exclusion of 'leave on loss of pay
and suspension be treated as specific punishment' while arriving at net
qualifying service. This exclusion, in our view would not have any
impact in the present case, since the loss of pay and suspension has not
been the subject matter of departmental enquiry or punishment and has
been a consequence only of the criminal proceedings, where ultimately
the writ petitioner was fully exonerated. Thus, this too would not stand
in the way of the writ petitioner being entitled to his claim.
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W.A.(MD)No.966 of 2015
17. The Transport Corporation relies on the judgments in the
cases of Mithilesh Kumar @ Mithilesh Singh vs. Union of India &
Others (2020 (12) SCC 423) and State Bank of Bikaner & Jaipur vs.
Nemi Chand Nalwaya (2011 (4) SCC 584).
18. Both these cases are fully distinguishable for the position
that they deal with the consequence of a departmental enquiry, which has
taken place in those cases, parallelly with the criminal proceedings. In
such circumstances, there would certainly be a consequence upon the
service of an employee. However, in the absence of any such
departmental proceedings having been initiated, it does not lie in the
mouth of the Transport Corporation to attribute any adverse
consequences to the services of an employee. The Writ Court has, in
conclusion, set aside the order impugned and directed, rightly the State
Transport Corporation to pass orders enabling the writ petitioner to
receive pension.
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W.A.(MD)No.966 of 2015
19. To be noted that the relief sought for by the writ petitioner
was as against the Transport Department, which has been suitably
modified by the Writ Court to address the Transport Corporation instead.
This would be the right position insofar as at the time of superannuation,
it was the Transport Corporation which was the employer of the writ
petitioner.
20. In the present case, in light of the discussion as above, we
are of categoric view that the writ petitioner has the requisite qualifying
service. The order of the Writ Court is confirmed. There is a direction to
compute the amount payable to the petitioner and pay over the same
within four weeks from the date of receipt of receipt of a copy of this
order. This Writ Appeal is dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
[A.S.M.J.,] & [R.V.J.,]
09.08.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.966 of 2015
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
sm
Judgment made in
W.A.(MD)No.966 of 2015
Dated:
09.08.2023
https://www.mhc.tn.gov.in/judis
