Madras High Court
G.Gunasekaran vs The State Of Tamil Nadu on 29 September, 2023
W.P.(MD).Nos.23847 to 23851 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.09.2023
CORAM
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD).Nos.23847 to 23851 of 2023
and
W.M.P(MD)Nos.20011, 20013, 20016, 20019 & 20028 of 2023
(In W.P(MD)No.23847 of 2023)
G.Gunasekaran ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Finance Department,
Fort St. George,
Chennai-600 009.
2.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Transport Department,
Fort St. George,
Chennai-600 009.
3.The Managing Director,
Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Corporate Office,
Kumbakonam-612 001.
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W.P.(MD).Nos.23847 to 23851 of 2023
4.The Administrator,
Tamil Nadu State Transport Corporation
Employees Pension Trust,
Thiruvalluvar House,
Pallavan Salai,
Chennai-600 002. ... Respondents
(In W.P(MD)No.23848 of 2023)
V.Babu ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Finance Department,
Fort St. George,
Chennai-600 009.
2.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Transport Department,
Fort St. George,
Chennai-600 009.
3.The Managing Director,
Metropolitan Transport Corporation (Chennai) Limited,
Pallavan Illam,
Anna Salai,
Chennai-600 002.
4.The Administrator,
Tamil Nadu State Transport Corporation
Employees Pension Trust,
Thiruvalluvar House,
Pallavan Salai,
Chennai-600 002. ... Respondents
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W.P.(MD).Nos.23847 to 23851 of 2023
(In W.P(MD)No.23849 of 2023)
M.Subramanian ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Finance Department,
Fort St. George,
Chennai-600 009.
2.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Transport Department,
Fort St. George,
Chennai-600 009.
3.The Managing Director,
Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
New Railway Station Road,
Kumbakonam-612 001.
4.The Administrator,
Tamil Nadu State Transport Corporation
Employees Pension Trust,
Thiruvalluvar House,
Pallavan Salai,
Chennai-600 002. ... Respondents
(In W.P(MD)No.23850 of 2023)
R.M.Cheralathan ... Petitioner
Vs.
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W.P.(MD).Nos.23847 to 23851 of 2023
1.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Finance Department,
Fort St. George,
Chennai-600 009.
2.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Transport Department,
Fort St. George,
Chennai-600 009.
3.The Managing Director,
Metropolitan Transport Corporation (Chennai) Limited,
Pallavan Illam,
Anna Salai,
Chennai-600 002.
4.The Administrator,
Tamil Nadu State Transport Corporation
Employees Pension Trust,
Thiruvalluvar House,
Pallavan Salai,
Chennai-600 002. ... Respondents
(In W.P(MD)No.23851 of 2023)
J.Ibrahim ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Finance Department,
Fort St. George,
Chennai-600 009.
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W.P.(MD).Nos.23847 to 23851 of 2023
2.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Transport Department,
Fort St. George,
Chennai-600 009.
3.The Managing Director,
Metropolitan Transport Corporation (Chennai) Limited,
Pallavan Illam,
Anna Salai,
Chennai-600 002.
4.The Administrator,
Tamil Nadu State Transport Corporation
Employees Pension Trust,
Thiruvalluvar House,
Pallavan Salai,
Chennai-600 002. ... Respondents
Common Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus, calling
for the records passed by second respondent relating to G.O(Ms)No.142,
Transport (E) Department, dated 26.08.2019 and quash the paragraph 3(c) and
consequently direct the respondents to revise the percentage of dearness
allowance payable to the petitioner on par with dearness allowance revised
from time to time for the serving employees of the Tamil Nadu State Transport
Undertakings and to pay arrears of revised pension.
(In all the cases)
For Petitioners : Mr.D.Siva Raman
For R-1 to R-3 : Mr.K.Ramaiah
Standing Counsel
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W.P.(MD).Nos.23847 to 23851 of 2023
For R-4 : Mr.S.C.Herold Singh
Standing Counsel
COMMON ORDER
These writ petitions have been filed for a Writ of Certiorarified
Mandamus, calling for the records passed by the second respondent relating to
G.O(Ms)No.142, Transport (E) Department, dated 26.08.2019 and quash the
paragraph 3(c) and consequently direct the respondents to revise the percentage
of dearness allowance payable to the petitioners on par with dearness allowance
revised from time to time for the serving employees of the Tamil Nadu State
Transport Undertakings and to pay arrears of revised pension.
2. By consent of both parties, these Writ Petitions were taken up for final
disposal at the stage of admission itself.
3. The case of the petitioners is that after unblemished service rendered
in the Transport Corporation, the petitioners / employees retired from service
on various dates. Once in three years, wage revision settlement would be
negotiated and arrived at between the Trade Unions of the Transport
Corporation Employees and the Managements of the State owned Transport
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W.P.(MD).Nos.23847 to 23851 of 2023
Corporation and the Transport Department of the Government of Tamil Nadu.
These settlements govern various service conditions and wage revision of all
the employees of the eight State Transport Undertakings.
4. Rule 15 of the Tamil Nadu State Transport Corporation Employees'
Pension Fund Trust Rules deals with the determination of pensionable salary.
The pensionable salary according to the rule, shall be the last drawn basic pay.
Rule 20 A provides payment of dearness allowance, in addition to the basic
pension at the rates that may be determined by the Government of Tamil Nadu.
In 13th wage settlement arrived between the Trade Unions and the Government
of Tamil Nadu under 12 (3) of the Industrial Disputes Act, dated 04.01.2018
the pay of all Transport Corporation Employees was revised retrospectively
from 01.09.2016. It was agreed in Clause 2 of the said settlement that the rate
of dearness allowance applicable for Transport Corporation employees shall be
5% from 01.07.2017. It was also agreed that in the future, whenever the rate of
dearness allowance is revised to the Tamil Nadu State Government Employees,
the same rate will be applicable to the Transport Corporation Employees as
well as dearness allowance will be revised from time to time on par with the
State Government Employees. However, in violation to the said agreement, the
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W.P.(MD).Nos.23847 to 23851 of 2023
Secretary to the Government of Tamil Nadu, Transport Department passed
G.O(Ms)No.142 of the Transport (E) Department, dated 26.08.2019, restricting
payment of revised pension prospectively from 01.09.2016 and further dearness
allowance payable to the Transport Corporation employees was freezed at
present rates.
5. Challenging the same, Pokkuvarathu Kazhaka Ovyu Petra Aluvalar
Nala Sangam filed W.P(MD)No.1147 of 2020, challenging paragraph 3(c) of
G.O(Ms)No.142 of the Transport (E) Department, dated 26.08.2019. By a
common order, dated 02.03.2023 passed in W.P(MD)No.1147 of 2020 etc.,
batch, this Court was pleased to modify the said G.O by holding that a
Government order cannot overrule the rules, when the rule say that the
employees are entitled to the benefits, immediately after retirement accrued to
them by way of 13th wage settlement and the Transport Corporation cannot
deny it and retired employees are entitled to revised monetary benefits from the
date on which the revised monetary benefits were given to the serving
employee. Further this Court held that the retired employees of Transport
Corporation are also entitled to the percentage of the dearness allowance as
fixed to the in-service employees. In the above circumstances, the petitioners
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W.P.(MD).Nos.23847 to 23851 of 2023
submitted representations individually on various dates seeking to revise the
dearness allowance as per the directions of this Court and pay the arrears.
Further the petitioners' made a request to increase the medical allowance from
Rs.100/- to Rs.300/- as paid for the Tamil Nadu Government Servants. Despite
the receipt of the said representations, the respondents have not taken any steps
to implement the rule, Government letter and orders passed by this Court.
Hence, these writ petitions came to be filed.
6. This Court is of the considered view that the matter in these writ
petitions are clearly covered by the order passed by this Court in W.P(MD)Nos.
1147 of 2020 etc., batch, dated 02.03.2023 and the relevant portion of which is
extracted as follows:
"8. .................[Pokkuvarathu Kazhaka Ovyu Petra
Aluvalar Nala Sangam and another Vs. The Principal Secretary
to Government and others] and the relevant portion of which is
extracted as follows:-
“15. As regards the prayer of the petitioners to
quash G.O.(Ms)No.142, Transport (E) Department, dated
26.08.2019, which stipulates prospective effect for the
benefit, it is submitted that the impugned Government
Order is the outcome of a Committee constituted for this
purpose. As per the Tamil Nadu State Transport
Corporation Employees Pension Fund Trust Rules, it is
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W.P.(MD).Nos.23847 to 23851 of 2023
the prerogative of the State Government to determine the
rates of dearness allowance to the pensioners and
accordingly, G.O.(Ms)No.142, Transport (E) Department,
dated 26.08.2019 was issued after due application of
mind and therefore, the writ petitions are liable to be
dismissed.
.....
17. The issue arises in the present writ petitions is
whether the State Government is right in issuing G.O.
(Ms)No.142, Transport (E) Department, dated
26.08.2019, for extension of monetary benefits as per the
recommendation of the 7th Pay Commission,
prospectively and whether G.O(Ms)No.142, dated
26.08.2019, is overriding the Tamil Nadu State Transport
Corporation Employees Pension Fund Rules. For better
appreciation, Rules 15, 16 and 20(A) reads as follows:
“15.DETERMINATION OF PENSIONABLE
SALARY
a) Pensionable salary shall be the last drawn basic
pay.
b) The actual Basic Pay includes Personal Pay.
16.MONTHLY MEMBER'S PENSION
a) A Member shall be entitled to -
i)Superannuation Pension, if he has rendered a
qualifying service of 10 years or more and retires on
attaining the age of 58 years or the retirement age that
may be fixed by the employer.
ii) Voluntary Retirement: Pension, if has rendered
a qualifying service of 20 years or more and attained the
age of 50 years.
b) In the case of exit of an employee, the amount of
monthly superannuation pension or retiring pension, as
the case may be, shall be computed in accordance with
the following formula namely:
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W.P.(MD).Nos.23847 to 23851 of 2023
Monthly Member's Pension – Pensionable salary
(50 % of last drawn basic pay*)X Pensionable
Service**/30
* Basic Pay includes Personal Pay
**The Pensionable service shall be restricted to 30
years.
c) Except as otherwise expressly provided
hereinafter the monthly members pension under
subparagraph (b) mentioned above shall be payable from
the date immediately following the date of completion of
58 years of age notwithstanding that the member has
retired or ceased to be in the employment. The
application for pension shall be submitted in the format
prescribed by the Trust.
d) The member's pension is payable till the lifetime
of the member.
e) Forfeiture of Service on Resignation:
Resignation from service or post entails forfeiture
of past services.
Provided that a resignation shall not entail
forfeiture of past service, if it has been submitted to take
up proper permission, another appointment, under
Government Department/State Public Sector
Undertaking/Board. In such case, the pensionary benefits
shall be transferred to the new employer's pension
fund/EP scheme 1995, as the case may be, and such
benefits shall not be directly paid to the individual.
f) In the case of existing members who have drawn
non-refundable advance before the implementation of this
Scheme, out of the employer contribution, shall repay
along with interest at the rate of 12% compounded
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W.P.(MD).Nos.23847 to 23851 of 2023
annually for the credit balances available in the
Provident Fund Trust for the members from time to time.
Only after such remittance, the member shall be entitled
for the pensionary benefits admissible under this Scheme.
Otherwise, the pensionary benefits will be
proportionately reduced.
g) In the case of non-member of the FPS-1971, the
1 1/6% of the wages which otherwise would have been
remitted to PF Commissioner shall also be remitted by PF
Trust to Pension Fund Trust with interest accrued
thereon. Otherwise pensionary benefits shall be
proportionately reduced.
........
20.A DEARNESS ALLOWANCE TO PENSIONERS
In addition to the basic pension, the pensioners are
eligible for nominal Dearness Allowance at the rates that
may be determined by the Government of Tamil Nadu.”
18. In the present case, admittedly, for
implementation of the 7th Pay Commission to the
Transport Corporation employees, a Committee was
constituted in terms of G.O.(Rt) No.32, Transport (E)
Department, dated 12.02.2019 and the Committee
examined various issues and submitted a report to the
Government. The Committee recommended to implement
the 13th Wage Settlement in respect of those who have
retired from 01.09.2016 to 31.12.2017 and also to
implement the 7th Pay Commission to the Transport
Corporation Employees, who have retired during
01.01.2016 to 31.03.2018. The State Government
accepted the recommendation of the Committee and
decided to implement the same. However, vide the
impugned G.O., it is ordered to implement the revision of
pension to the pensioners, who are covered under 13th
Wage Settlement(for those who have retired between
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W.P.(MD).Nos.23847 to 23851 of 2023
01.09.2016 and 31.12.2017) with notional effect from
01.09.2016 and with monetary benefit prospectively.
Further, it is ordered to implement the revision of pension
as per 7th Pay Commission to the pensioners (for those
who have retired between 01.01.2016 and 31.03.2018)
with notional effect from 01.01.2016 and with monetary
benefit prospectively and it is recommended to continue
to pay the dearness allowance at the present rate without
any change. However, it is contrary to the Tamil Nadu
State Transport Corporation Employees Pension Fund
Trust Rules.
19. Further, a Government Order cannot overrule
the Rules, when the Rules says that the employees entitled
to the benefits immediately after retirement, the
employees worked in the respondent Transport
Corporation, who have retired between 01.09.2016 and
31.12.2017, are entitled to receive revised monetary
benefits from the date on which the revised monetary
benefits were given to the working employees under the
13th Wage Settlement. Further, the employees who have
retired between 01.01.2016 and 31.03.2018 are entitled to
receive the revised monetary benefits from the date on
which the revised monetary benefits were given to the
working employees as per 7th Pay Commission. Hence, to
that extent, the impugned G.O., is modified. Further, with
regard to dearness allowance, the retired employees are
entitled to the percentage of dearness allowances as fixed
by the State Government to the in-service employees. The
respondents are directed to calculate the arrears of
pension payable to the petitioners and settle the entire
benefit, within a period of twelve weeks from the date of
receipt of a copy of this order.”
7. Though it is necessary that a wage revision settlement has to be arrived
at once in three years, there was a delay in arriving at a wage settlement under
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W.P.(MD).Nos.23847 to 23851 of 2023
Section 12(3) and 14th wage settlement was arrived between the various state
holders only on 24.08.2022. In the case mentioned supra, it has been held that a
Government order cannot overrule the rules. Thus, the employees, who worked
in the respondent Transport Corporation, who have retired between 01.09.2019
and 31.07.2022 are entitled to receive revised monetary benefits from the date
on which, revised monetary service benefits were given to the working
employees under 14th wage settlement.
8. The learned Standing Counsel for the respondent Administrator
submitted that the pension has been revised from the date of the impugned
order. However, such an argument is not sustainable, in view of the fact that the
pension has been revised in terms of 14th wage settlement and Rule 15 of the
Tamil Nadu State Transport Employees' Pension Fund Trust Rules, the
pensionable salary shall be the last drawn basic salary and it has been fairly
conceded by the learned Counsel for the petitioner that the last drawn basic
salary has been revised in terms of the 14th wage settlement. Hence, to that
extent, the difference in revised pension is payable from the date on which the
revised monetary benefits were given to the working employees till the date of
the impugned order. However, with regard to the dearness allowance, the
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W.P.(MD).Nos.23847 to 23851 of 2023
retired employees are entitled to the percentage of dearness allowance as fixed
by the State Government to the in-service employees.
9. This Court is duty bound to observe that the respondents have
preferred an appeal in W.A(MD)No.1240 of 2023, dated 29.09.2023 as against
the order passed by this Court in W.P(MD)No.1147 of 2020, dated 02.03.2023
and the same was also dismissed and the relevant portion of which is extracted
as follows:
"5.3. Thus it can be clear that even though it was within the
realm of the Board of Directors to have postponed the actual
financial benefits, they thought it otherwise and consequently even
the pension fund trust ordered implementation. When that being so,
without even referring to G.O(Ms)No.134, the impugned
Government order in G.O(Ms)No.142, dated 26.08.2019 is issued by
restricting the monetary benefit prospectively. In this regard, it is
the Government which decided to extend subject to conditions and it
is the Corporations which expected to extend with or without any
modification of the Government Scheme. Once a particular decision
of implementing the Revised Pay Rules, is implemented as such
granting the benefits retrospectively, then at the time of carrying out
of the same, it cannot proclaim one and restrict thereafter. In this
regard, useful reference can be made to the Judgment of the
Division Bench of this Court in Tamil Nadu Electricity Board and
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W.P.(MD).Nos.23847 to 23851 of 2023
Another Vs. G.Sethuraman and Paragraph Nos.13 and 14 of the
said judgment are extracted hereunder:
"13. In an oft quoted passage in East End Dwelling Co. Ltd
Vs. Finsbury Borough Council, (1951) 2 All.E.R 587, Lord Asquith
observed: -
"If you are bidden to treat an imaginary state of affairs as
real, you must surely, unless prohibited from doing so, also imagine
as real the consequence and incidents which, if the putative state of
affairs had in fact existed, must inevitably have flowed from or
accompanied it. The statute says that you must imagine a certain
state of affairs; it does not say that having done so, you must cause
or permit your imagination to boggle when it comes to the
inevitable corollaries of that state of affairs"
The above observation has been quoted with approval by the
Supreme Court in several decisions e.g. Bhavnagar University Vs.
Palitana Sugar Mills Private Limited, AIR 2003 SC 511 (para-33),
C.W.T Vs. Trustees of H.E.H., (2003) 5 SCC 122 (para-20), Dipak
Chandra Ruhidas Vs. Chandan Kumar Sarkar, (2003) 7 SCC 66
(para-12), etc.
14. In the present case, the legal fiction which has been
created by order dated 07.06.1996 is that the writ petitioner is
deemed to have been retrospectively promoted as Executive
Engineer from 09.06.1988. Hence full effect must be given to this
legal fiction, and for all purposes we have to treat it as if the writ
petitioner had in fact been promoted as Class I officer from
09.06.1988, and our eyes should not boggle half way. For these
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reasons, we fully agree with the view taken by the learned single
Judge in the impugned judgment."
(emphasis supplied)
Thus it can be seen that in the instant case also, after making
a conscious decision implementing the order partly by way of
Statutory Rule and partly by way of extending the benefit, at the
final lap, the eyes of the Government had boggled. Therefore the
same is impermissible."
10. In view of the same, this Court is inclined to quash the paragraph 3(c)
in G.O(Ms)No.142 of the Transport (E) Department, dated 26.08.2019 passed
by the second respondent and consequently direct the respondents to revise the
percentage of dearness allowance payable to the petitioners on par with
dearness allowance revised from time to time for the serving employees of the
Tamil Nadu State Transport Undertakings and to calculate the arrears of
pension payable to the petitioners and settle the entire benefits within a period
of twelve (12) weeks from the date of receipt of a copy of this order.
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11. These writ petitions stand disposed of in the above terms. There shall
be no order as to costs. Consequently, connected Miscellaneous Petitions stand
closed.
29.09.2023
NCC : Yes
Index : Yes
Internet : Yes
BTR
To
1.The Principal Secretary to Government,
The State of Tamil Nadu,
Finance Department,
Fort St. George,
Chennai-600 009.
2.The Principal Secretary to Government,
The State of Tamil Nadu,
Transport Department,
Fort St. George,
Chennai-600 009.
3.The Managing Director,
Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Corporate Office,
Kumbakonam-612 001.
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4.The Administrator,
Tamil Nadu State Transport Corporation
Employees Pension Trust,
Thiruvalluvar House,
Pallavan Salai,
Chennai-600 002.
5.The Managing Director,
Metropolitan Transport Corporation (Chennai) Limited,
Pallavan Illam,
Anna Salai,
Chennai-600 002.
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L.VICTORIA GOWRI, J.
BTR
W.P.(MD).Nos.23847 to 23851 of 2023
29.09.2023
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