Madras High Court
K.Natarajan vs Tamilnadu Generation And Distribution ... on 1 March, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.27020 of 2021, etc batch
THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 31.01.2024
Pronounced on : 01.03.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.27020, 27040, 27038, 27035, 27032 of 2021, 14354 of 2022,
27028 of 2021, 14358, 23703, 23706, 23710, 23711, 23723, 23727,
23729, 23746, 23749, 26282, 26293, 26285, 26290, 26199, 26207,
26210, 26213, 31076, 31080, 31094, 31097, 32900, 32902,
32905, 32907, 750, 753, 755, 759, 774, 1539, 1542, 1546, 1548,
3421, 3425, 3429, 3431, 3434, 3731, 3735, 3737, 3738, 3740, 3745,
8047, 8051, 8054, 8058, 12914, 12916, 12917, 14378, 14516,
14830, 14880, 14884, 15327, 15348 & 21137 of 2022 and
WMP.Nos.28463, 28493, 28490, 28486, 28483 of 2021, 13562 of 2022,
28480 of 2021, 834, 838, 841, 850, 864, 1667, 1668, 1669, 1670, 3530,
3535, 3542, 3545, 3550, 3881, 3883, 3885, 3886, 3887, 3891, 8020,
8022, 8025, 8028, 12412, 12414, 12417 of 2022
WP.No.27020 of 2021
K.Natarajan ... Petitioner
Vs.
1.Tamilnadu Generation and Distribution Corporation Limited,
Rep.by its Chairman cum Managing Director,
No.144, Anna Salai, Chennai 600 002
2.The Chief Engineer(Personnel),
Tamilnadu Generation and Distribution Corporation Limited,
No.144, Anna Salai, Chennai 600 002
3.Superintending Engineer,
Tamilnadu Generation and Distribution Corporation,
Tiruvannamalai Electricity Distribution Circle,
1/32
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Vengikkal,
Tiruvannamalai ... Respondents
PRAYER: Writ Petition is filed under Article 226 of Constitution of
India praying to issue a Writ of Certiorarified Mandamus calling for the
concerned records from the 3rd respondent, quash the order of the 3rd
respondent bearing Letter No. 000946 - 11 / SE / ADO / ADM - 2 / A.2 /
2020 dated 13.02.2020 as illegal, arbitrary and contrary of law and
consequently direct the respondents to take into account of the 50 percent
of the service rendered by the petitioner as temporary casual labourer /
nominal muster roll for the purpose of calculating pension and on that
basis pay pension.
WP.Nos.27020, 27040, 27038, 27035, 27032 of 2021,
14354 of 2022, 27028 of 2021, 14358, 23703, 23706,
23710, 23711, 23723, 23727, 23729, 23746, 23749,
26282, 26293, 26285, 26290, 26199, 26207, 26210,
26213, 31076, 31080, 31094, 31097, 32900, 32902,
32905, 32907, 750, 753, 755, 759, 774, 1539, 1542,
1546, 1548, 3421, 3425, 3429, 3431, 3434, 3731, 3735,
3737, 3738, 3740, 3745, 8047, 8051, 8054, 8058,
12914, 12916, 12917, 14378, 14516, 14830, 14880,
14884, 15327 & 15348 of 2022
For Petitioner : Mr.Balan Haridas
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For Respondents : Mr.Anand Gopalan
for M/s.Agam Legal
WP.No.21137 of 2022
For Petitioner : Mr.K.Selvaraj
For Respondents : Mr.Anand Gopalan
for M/s.Agam Legal
COMMON ORDER
Writ petitions have been filed challenging the order passed
by the third respondent thereby rejected the representations submitted by
the petitioners seeking to take into account of their 50% of services
rendered by them as Temporary Casual Labourer / Nominal Muster Roll
for the purpose of calculating pension and other benefits. Some of the
writ petitions have been filed for declaration declaring the action of the
respondents as illegal in not taking into account, the 50% of their services
rendered as TCL/NMR for the purpose of calculating their pension.
2. All the petitioners are challenging the same rejection order
and as such this Court is inclined to pass a common order in all the writ
petitions. That apart, the issues in all the writ petitions are one and the
same.
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3. The petitioners were working as Contract Labourers in the
year 1970's and 1980's under the Contract Act enacted by the Tamilnadu
Electricity Board. However, the petitioners are claiming that they were
engaged by the Tamilnadu Electricity Board directly as Temporary
Casual Labourer / Nominal Muster Roll (hereinafter called as
TCL/NMR). They were engaged for the work of digging pits, laying pole,
giving connections, fixing new meters, etc. There have been demanded for
absorption of employees working as TCL/NMR. The request went upto
the Hon'ble Supreme Court of India. After considering the issue involved
in the request made by the employees, the Hon'ble Supreme Court of
India formed a One Man Committee under the Chairmanship of the
Hon'ble Mr.Justice V.Khalid. The One Man Committee enquired the
issues thoroughly and recommended to absorb TCL/NMR's as Helper
into service in Tamilnadu Electricity Board by relaxing their qualification
by considering their experience by number of years. Accordingly, they
were absorbed as Helper. Thereafter, due to their attainment of age of
superannuation, they got retired from their respective services.
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Considering the service rendered as TCL/NMR, the Government passed
order in GO.Ms.No.408 dated 25.08.2009 ordering to take 50% of the
services rendered prior to absorption for the purpose of pension.
Accordingly, the respondents Corporation also adopted and issued Board
proceedings in BP.No.31 dated 08.09.2011 and it was decided to take
into account, half of the services rendered by the TCL/NMR for
pensionary benefits along with regular service. Therefore, the petitioners
also made representation to consider their services rendered as TCL/NMR
for their pensionary benefits. However, it was not considered and as such,
some of the petitioners approached this Court in a batch of writ petitions
and this Court directed the respondents to consider the request made by
the petitioners. However, the representations submitted by the petitioners
were rejected by the respondents.
4. The learned counsel for the petitioners submitted that the
petitioners had been continuously working for Tamilnadu Electricity
Board. Though the petitioners were working under Contractors, they had
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worked for the respondents. Therefore, 50% of their services also to be
taken into account for calculating pensionery benefits and their claim
cannot be said as belated one and hit by delay and laches. Immediately
after board proceedings, the petitioners submitted their respective
representations. In fact, those representations were not considered and as
such, they were constrained to approach this Court. Only after direction
issued by this Court, now the claim made by the petitioners have been
rejected. When the similarly placed persons were benefited by the board
proceedings in BP No.31 dated 08.11.2011 and as such the petitioners
are also entitled for the same relief. The claim of pensionary benefits is a
continuous cause of action and as such, it cannot be said as belated one.
As per the recommendations made by One Man Committee, the
petitioners were absorbed as Helper in the services of the Tamilnadu
Electricity Board in the year 1990's. In fact, at the time of absorption, the
petitioners' qualification, experience, age and other relevant records were
duly verified. Therefore, it cannot be said that the relevant records of their
employment are not available and as such, they are not entitled for any
pensionary benefits for the service rendered by them as contract
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labourers. In fact, the services rendered by them prior to the absorption
and after the absorption is one and the same. Therefore, the services
rendered by the petitioners prior to their absorption cannot be wiped out
by saying that the board proceedings is not applicable to the contract
labourers. He further submitted that one of the co-employee who retired
from the Office of the Superintending Engineer, Vellore Electricity
Distribution Circle, Vellore, was granted pension order dated 24.06.2014
in the light of the BP.No.31 dated 08.11.2011. Therefore, the similar
benefit cannot be denied to the petitioners who are also identically placed
in the same position.
4.1 All the petitioners were engaged by the Tamilnadu
Electricity Board and they were paid by their respective Assistant
Engineer / Junior Engineer. Therefore, they were working only as TCL.
Hence, board proceedings in BP.No.31 dated 08.11.2011 is very much
applicable to the petitioners.
4.2 He relied upon the Commissioner's report of the Hon'ble
Mr.Justice V.Khalid dated 11.02.1991. Before the Commission, the
Electricity Board had taken specific stand that the Labourers engaged by
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contractors are not entitled for absorption in the regular service of the
Electricity Board as Helpers in relaxation of qualification of National
Trade Certificate / National Apprentice Certificate. Accordingly, the
Commission framed issues. The Commission answered that raw hands
with technical qualification will be superior to persons with long periods
of practical experience. It is a matter of common knowledge that practical
experience is an excellent substitute for technical qualification in many
cases in handling the work like that of the Electricity Board. Accordingly,
the qualification was relaxed considering their experience for absorption
to the post of Helper. Further held that in recommendation of the services
rendered by the contract workers for the benefit of the board, the Board
could have evolved suitable proposals to recruit contract workers who are
otherwise qualified whenever regular vacancies arise in the Board. Insofar
as the contract labourers are concerned, every worker against whom a
plea that he is a contract labourer is put forward, has to be treated as the
worker of the principal employer unless two conditions are satisfied i.e.
(i) that the principal employer has secured a certificate of registration for
the relevant period and (ii) it had employed contract labour through a
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licenced contractor. If either of the two conditions is missing, then the
contract labour employed through the contractor shall be treated as
worker of the principal employer. Therefore, the respondents ought to
have considered the petitioners as their workers since there were no
certificate of registration for the relevant period and they were not
employed under the licenced contractor.
4.3 In support of his contention, the learned counsel for the
petitioners also relied upon the judgment of the Hon'ble Supreme Court of
India in the case of Prem Singh Vs. State of Uttar Pradesh and Others
reported in (2019) 10 SCC 516, there is a provision to count service spent
on work-charged contingencies or non-pensionable service, in case, a
person has rendered such service in a given between period of two
temporary appointments in the pensionable establishment or has rendered
such service in the interregnum two periods of temporary and permanent
employment. The work-charged service can be counted as qualifying
service for pension in the aforesaid exigencies.
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4.4 He also relied upon the judgment of the Full Bench of this
Court rendered in W.A.Nos.158 of 2016, etc batch dated 03.12.2019,
wherein it is held that in case, a Government employee/servant had also
rendered service in non-provincialised service or on consolidated pay or
on honorarium or daily wage basis and if such services were regularised
before 01.04.2003, half of such service rendered shall be counted for the
purpose of conferment of pensionary benefits.
4.5 In respect of continuous cause of action is concerned, he
relied upon the judgment of the Hon'ble Supreme Court of India in the
case of Union of India Vs. Tarsem Singh reported in (2008) 8 SCC 648,
wherein it is held that where a service related claim is based on a
continuing wrong, relief can be granted even if there is a long delay in
seeking remedy, with reference to the date on which the continuing wrong
commenced, if such continuing wrong creates a continuing source of
injury.
5. Per contra, the respondents filed counter and the learned
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counsel appearing for the respondents submitted that all the petitioners
were employed as Contract Labourers. Therefore, they are not entitled for
any claim. Even assuming that they are TCL/ NMR, it is a disputed
question of fact and it cannot be gone into by way of writ petition under
Article 226 of the Constitution of India. They were engaged only as
Contract Labourer prior to their absorption into service of the Tamilnadu
Electricity Board and only based on the One Man Committee
recommendation, they were absorbed into service of the Tamilnadu
Electricity Board. As per their service records, it is clearly mentioned that
they rendered service as Contract Labourer before their absorption.
Therefore, their pensionary benefits were rightly calculated from the date
of their absorption into service of the respondents. Even assuming that
they are entitled for benefit under the above said Government order and
the subsequent board proceedings, they made claim after lapse of eight
years. Further, the petitioners were not direct employees of the Tamilnadu
Electricity Board and hence, the board proceedings No.31 dated
08.09.2011 would not be applicable to the facts of the petitioners. That
apart, the Hon'ble Division Bench of this Court categorically held that
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benefits under GO.Ms.No.408 Finance (Pension) Department dated
25.08.2009 or the board proceedings No.31 dated 08.09.2011 could be
extended to Contract Labourers, unless the Government or the Board
specifically takes a conscious decision to extend the benefit to the
members of the Society, who had put in long years of service as Contract
Labourers and were subsequently absorbed.
6. Heard the learned counsel appearing on either side.
7. On perusal of records, revealed that on 01.07.1957, Madras
State Electricity Board was formed under the Electricity Supply Act to
take over the operations of the Electricity Department of the then
Government of Madras. Before the formation of the Board, the Electricity
Department of the Government of Madras was having employees only in
the staff category and technical category like Engineers and Technicians.
As far as unskilled manual work was concerned, the Madras State
Electricity Board was engaging only persons on NMR or as TCL. Upon
formation of the Board, Service Regulations in exercise of powers
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conferred under Section 79 of the Electricity Supply Act, 1948,
Regulation 92 codified that appointment to the Distribution Systems and
General Circles of categories specified in Annexure-1 and the same shall
be made in the manner prescribed in the Regulations. The Board in its
initial years met its manpower requirement for doing unskilled manual
work by engaging TCL or NMR for whom the Board used to maintain a
muster roll and pay them daily wages directly.
8. In the year 1972, there was a bipartite settlement made with
Tamil Nadu Electricity Workers' Federation. In this settlement, it was
agreed that the TCL workmen who had completed four years of service as
on 31.12.1972 in the Distribution Systems and Generation Circles shall,
according to their seniority, be absorbed in the Regular Work
Establishment Category in the respective Systems or Circles, as the case
may be as Helper with effect from 01.01.1073 by relaxing the
qualifications prescribed in the TNEB Service Regulations. If the total
number of TCL workmen to be absorbed as Helper was in excess of the
number of posts for which there were existing vacancies, then
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Supernumerary Posts of Helpers shall be created to absorb such excess
number of TCL Workmen. As and when additional posts of Helpers are
sanctioned, the number of supernumerary posts of Helpers shall be
reduced correspondingly. Again a representation was made that TCL
Workmen, who have completed 4 years of service as on 31.09.1972 in
the Distribution Systems and Generation Circles, should also be absorbed
in the Regular Work Establishment or Temporary Work Establishment as
the case may be with effect from 01.01.1973. This demand was also
accepted by issuing BP No.34 dated 04.01.1973. The Chief Engineer
(General) forwarded a proposal for absorption of TCL who have
completed 4 years of service as on 31.12.1973 in the Regular Work
Establishment.
9. On 29.04.1974. BP.No.617 was issued directing TCL's who
have completed 4 years of service as on 31.12.1973 be absorbed as
Helper in the Regular Work Establishment in the respective Systems /
Circles with effect from 01.05.1974. By BP.No.1887 dated 22.11.1976,
orders were issued for absorption of TCL workmen who have completed
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4 years of service as on 31.12.1975 with effect from 01.01.1977. On
18.02.1977, there was a settlement between TNEB and Workers Union
that TCL Workmen who have completed 4 years of service as on
31.12.1975 should also be absorbed with effect from 01.04.1977.
Accordingly, BP.No.1887 dated 22.11.1976 was issued. Further,
pursuant to BP.No.512 dated 30.04.1977, TCL Workmen who had
completed 4 years of service as on 01.04.1977 were also absorbed. Still
there were TCL workmen to be absorbed, as they had not completed 4
years of service. There was a further absorption of TCL Workmen who
had completed three years of service as on 01.10.1977. The last batch of
2600 TCL Workmen were absorbed pursuant to BP.No.512 dated
30.04.1977. Between 1972 and 1978, approximately 4500 persons
working as TCL were absorbed by TNEB. After October 1978, no person
was appointed or engaged as TCL.
10. After 1978, in order to meet any contingent manpower
requirement which arose consequent to the launching of an electrification
drive throughout the State, Contractors were engaged. They signed
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agreements which were called as K2 / Chit Agreements for executing
these works. The contractors were paid the amounts payable in terms of
the K2/Chit agreement. They in turn would pay the persons employed by
them. The persons employed by them by usage were termed as contract
labourers. After 01.10.1978, no persons were directly engaged for doing
unskilled manual work in the Distribution Systems and Generation
Circles. In 1984, pursuant to a settlement with the recognized Unions,
TNEB committed to fill 700 posts of Helper by direct recruitment from
candidates possessing the prescribed qualification. By Board proceeding
No.38 dated 23.05.1986, the service regulations were amended, which
prescribed qualification of National Trade Certificate and National
Apprenticeship Certificate. The prescription of new qualification for the
post of Helper was challenged by the Unions and Associations on behalf
of the contract labourers, who were carrying out field work after 1978
onwards. This issue went up to the Hon'ble Supreme Court. By order
dated 10.04.1990, the Supreme Court directed appointment of a one man
Commission headed by a retired Judge of Hon'ble Supreme Court of India
i.e. Mr. Justice Khalid to recommend the criteria to be applied for
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recruitment to the post of Helper.
11. Various trade Unions got themselves impleaded and
submitted list of contract workmen who should be considered for
absorption. On 11.02.1991, Mr.Justice Khalid submitted the
Commission's report recommending absorption of 18006 contract
labourers as Helper in a phased manner. The report was accepted by the
Hon'ble Supreme Court and they were absorbed in a phased manner till
March 1998. The persons identified by Mr.Justice Khalid were all
working as contract labourers. Even after absorption of the 18006
contract labourers identified by Mr.Justice Khalid Commission, the Board
voluntarily decided not to engage contract labourer in its Generation
Circles. Accordingly, Board Proceedings were passed and more than
10,000 contract labourers were absorbed into the services of the Board.
These persons were also absorbed only prospectively. On 10.08.2007, the
Board entered into a settlement under Section 12(3) of the Industrial
Disputes Act with the Unions for absorption of 21,000 contract labourers.
These contract labourers number around 21,000 persons were absorbed
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in a phased manner from 2005 to 2012 in terms of the settlement. In
respect of these persons also, the absorption was a prospective date.
12. The Board issued B.P.No.9 dated 09.01.2008 with regard to
absorption of the left-over contract labourers, that is those not eligible for
absorption in terms of the settlement but were being continued to be
engaged in the service of the Board. In terms of these Board Proceedings,
more than 4000 persons have been absorbed. All around 35,000 persons
who were alleged to be working as contract labour has been absorbed
into the services of Board between 1999 and 2013 as narrated above. The
service rendered by them as contract labour has not been reckoned for
any purposes till date. In fact, Industrial Disputes were raised to reckon
the service rendered by the contract labourers who had been absorbed in
the year 1999 in the Generation circles. The same has been rejected by
the Industrial Tribunal and awards have been passed. Similarly, in the
settlement dated 10.08.2007 entered under Section 12(3) of the Industrial
Disputes Act 1947, the Union have explicitly agreed that the period spent
as contract labour would not be reckoned for any purpose.
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13. The Government of Tamil Nadu issued G.O.Ms.No.408
dated 25.08.2009, stating that 50% of the service rendered by employees
NMR/TCL'S prior to absorption in Government service should be
reckoned for pension purposes. In GO.Ms.408 Finance (Pension
Department) dated 25.08.2009, the Government of Tamil Nadu ordered
that half of the service rendered by the Government Servants in
temporary service, viz., non-professionalized service on or after
01.01.1961 and absorbed in regular service before 01.04.2003 shall be
counted for pensionary benefits along with regular service. On behalf of
the employees of TNEB, a demand was made that the service rendered by
persons as NMR/TCL should also be taken into account as pensionable
service. Acceding to the said BP.No.31 was issued on 08.03.2011,
providing that half of the service rendered by the employee of
TANGEDCO, prior to absorption, either as Nominal Muster Roll or
Temporary Casual Labour would be counted for pensionary benefits.
This Board Proceeding was issued to cover persons who had been
directly engaged by the board and hence pertained only to persons who
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had worked as TCL or NMR. The objective of GO.No.408 and BP.No.31
is only to provide benefits to persons who were in direct employment but
whose services were irregular. The fundamental premise of the scheme
was existence of a master and servant relationship. However, as it was
irregular, 50% of the same was to be counted and the remaining was
being considered. It was a benevolent gesture and the same cannot be
cited by the petitioner who are not covered by the Government or Board
proceedings.
14. The claim of the Petitioners is belated and is hit by delay and
latches. The Petitioners would be entitled to benefits only from the date of
actual absorption into the services of the Board and that they had no
statutory rights to claim any benefits for the period prior to their actual
absorption into the services of the Board. It is only in these circumstances
that, despite the petitioners having been absorbed many years ago, he did
not raise any dispute or make a claim for reckoning a part of the period
he had worked as Contract Labourer for pensionary benefits or any other
purpose. Though the Board Proceeding No.31 was passed as early as on
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08.03.2011, there was no claim of the Petitioners within a reasonable
period of time. There has been a substantial delay in raising a claim for
benefits in terms of B.P.No.31 dated 08.03.2011. In fact, the Petitioners
were well aware that the benefits of B.P.No.31 were not available to them
and it is only in these circumstances, they had not claimed the benefits as
per Board proceedings No.31 dated 08.03.2011.
15. The benefits of BP No.31 would be available only to the
NMR's and TCL's who actually received wages directly from the Board
and whose engagement details were available with the Board. Persons
like Petitioners who worked as contract labourers through third party
contractors, were neither paid wages directly by the respondents nor were
their work supervised by the respondents. There were no records with
regard to the number of days actually worked by the Petitioners. In such
circumstances, they cannot have claim in terms of the Board Proceedings
No.31 dated 08.11.2007. Therefore, the claim of the petitioners cannot be
equated with TCL's who were worked directly with the Board. There was
no relationship of master and servant between the petitioners and
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respondents in any manner subsisted before actual absorption and hence
on that ground as well, the petitioners cannot claim the benefit of BP
No.31. The benefit of BP.No.31 is available only to those who were in
direct employment and received wages from the Board directly.
NMR/TCL when they were engaged before 1978, they were engaged
directly by TNEB. Hence, records were available for the days they
worked. Whereas no such records are available with regard to Contract
Labourers like the Petitioners. The payments were made to the concerned
contractors who had entered into K2/Chit agreement and no direct
payment was made by TNEB to contract labourers like the Petitioners.
The contractors had given certificates stating that they had engaged by
them and based on such certificates, Mr.Justice Khalid had prepared a list
of eligible persons. The actual days that was worked had not been
verified at any point of time nor was it available.
16. Even otherwise factually, it is not possible to countenance
the claim of the Petitioners. As narrated above, no records are available
with the Board to even verify their claim. In respect of NMR and TCL,
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records were available. Records were never available in respect of the
petitioners' engagement by the contractors and it was never verified. In
the absence of records, it is not possible to verify the veracity of their
claim. The contractors covered their employees under the Employees
Provident and Miscellaneous Provisions Act, 1952. A person covered
under the PF Act cannot have a claim for pension. The Petitioners cannot
seek dual benefit especially given the amendment to Section 16 from
01.08.1988, by which the Respondents establishment ceased to be an
establishment for the purpose of the EPF Act. In fact, alleging non-
payment of contribution by the contractors and claims have been raised
against the respondents. Being so, the Petitioners who were covered
under the provident fund for the period they had worked with the
contractors cannot claim pension for the same period. A contract labour
like petitioners had filed a writ petition seeking 50% of his service as
contract labour should be considered for the purposes of pension. A
Division Bench of the Madurai Bench of this Court by judgment dated
28.10.2015 in WA(MD) No. 785 of 2015, rejected the claim and held
that BP No.31 would not cover contract labourers. As the issue has
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already been decided by a Division Bench, the petitioners claim cannot be
considered on this ground as well.
17. The Petitioners cannot claim benefits both under the
Employees Provident Fund and Miscellaneous Provisions Act for the
services rendered as Contract Labour and also under the Pension Scheme
of the respondents. In the light of the aforesaid Division Bench order, the
claim of the petitioners is liable to be rejected. Therefore, the impugned
order of the 3rd Respondent rejecting the claim of the petitioners cannot
be said as illegal. The absorption and regularisation of the petitioners'
services were based on the orders of the Hon'ble Supreme Court. The
orders of the Hon'ble Supreme Court did not provide for absorption of the
petitioners from an earlier date. The Service Regulations of the
respondents also do not permit for the same. Hence, the action of the
respondents in not recognising 50% of the petitioners' service as Contract
Labourer is just and valid.
18. It is relevant to rely upon the judgment of the Hon'ble
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Division Bench of this Court rendered in the case of The Superintending
Engineer, Tuticorin Thermal Power Station Vs. Pondurai in
WA(MD).No.785 of 2015, wherein the Hon'ble Division Bench rejected
the claim of the contract labour like the petitioners and held as follows:
"5. We would have accepted such plea but for
Rule 11 of the Tamil Nadu Pension Rules, 1978, which
states that the date of commencement of qualifying
service for the purpose of pension should be the date in
which he takes charge in the first appointment either
substantively or in an officiating or temporary capacity
in the concerned department. While serving through the
INDCOSERVE Society, it can never be said that the
respondent/writ petitioner was in a qualifying service
(i.e..) either substantively or in an officiating or in
temporary capacity on the rolls of the appellants Board.
6. At best, the respondent was one among many
members of the Society, working on contract basis with
the appellants Board, which was abolished by
G.O.Ms.No.950, Labour and Employment Department,
dated 08.08.1990. Therefore, the Government Order
makes it clear that there is demarcation consequent to
G.O.Ms.No.950, Labour and Employment Department,
dated 08.08.1990. Prior to that, the respondent and all
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W.P.No.27020 of 2021, etc batch
other members of INDCOSERVE were Contract
Labourers and not appointed either substantively or in
an officiating or temporary capacity of the appellants
Board in a qualifying service. On issuance of the said
Government Order, pursuant to absorption on
01.05.1999, the respondent became an employee of the
appellants Board. If that fact is clear and undisputed,
the commencement of qualifying service would be
reckoned from 01.05.1999 and not before that. Service
as a member of the Society (INDCOSERVE), a contract
which came to be abolished. can never be a qualifying
service. In such view of the matter, as per Rule 11 of the
Tamil Nadu Pension Rules, 1978, the respondent is
ineligible for pension unless and until he puts in the
qualifying years of service as required under Rule 43(2)
of the Tamil Nadu Pension Rules, 1978. G.O.Ms.No.408,
Finance (Pension) Department, dated 25.08.2009 or the
Board's Proceedings, as has been prescribed earlier
would be applicable only in respect of service viz.,
Nominal Muster Roll or Temporary Casual Labourer in
the service of the Board and not for the members of a
Society.
7. We find no reason to accept G.O.Ms.No.408,
Finance (Pension) Department, dated 25.08.2009 or the
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W.P.No.27020 of 2021, etc batch
Board's Proceedings could be extended to Contract
Labourers, unless the Government or the Board
specifically takes a conscious decision to extend the
benefit to the members of the Society, who had put in
long years of service as Contract Labourers and were
subsequently, absorbed. We would, however, like to
express our concern that the Government and the Board
should consider and issue appropriate Government
Orders similar to that of G.O.Ms.No.408, Finance
(Pension) Department, dated 25.08.2009, to consider
the plight of large number of employees, who had put in
long years of service for the benefit of the Board even as
Contract Labourers through the Society or otherwise.
8. Insofar as the present case is concerned, we
find that neither G.O.Ms.No.408, Finance (Pension)
Department, dated 25.08.2009 ??? the Board's
Proceedings No.31, dated 08.09.2011, would come to
the benefit of the respondent/writ petitioner and in terms
of Rule 11 of the Tamil Nadu Pension Rules, 1978,
which clearly provides that the commencement of
qualifying service of a Government servant will be the
date on which he takes charge of the post to which he is
first appointed either substantively or in an officiating
or temporary capacity. In the case on hand, appointment
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W.P.No.27020 of 2021, etc batch
has not been made in respect of the present
respondent/writ petitioner till 01.05.1999. He is not
entitled to seek inclusion of the period of service as
member of society for the purpose of pensionary benefits
in the absence of rule or otherwise.
9. On an allegation of arbitrariness and unfair
treatment, we called upon Mr.Karthick, learned counsel
for the appellants to produce the records and justify that
in all cases where the absorbed employees fell short of
qualifying service they have been uniformly treated by
declining the grant of pension. In order to dispel this
plea and to prove that there is no arbitrariness or unfair
treatment to one or other person, more particularly the
respondent, Mr.Karthick, learned counsel for the
appellants produced the details of all the employees
who were absorbed on 1.5.1999 and who had qualifying
service between 2 to 9 years and were not extended the
said benefit. Accordingly, we hold that the order of the
learned Single Judge directing appellants to consider
the period of service as member of the Society for
pensionary benefits is erroneous.
10. In the result, the writ appeal is allowed and
the impugned order is set aside. The respondent/writ
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W.P.No.27020 of 2021, etc batch
petitioner will be entitled to make a representation to
the Board in the light of what we have indicated earlier
to consider his plea and similarly placed persons for
grant of pensionary benefits de hors the government
order and board proceedings, as above. No costs.
Consequently, connected miscellaneous petition is
closed.”
19. In view of the above, this Court finds no infirmity or
illegality in the order passed by the third respondent. Further the action of
the third respondent for non considering the 50% of the petitioners'
service as Contract Labourer cannot be declared as illegal. That apart, all
the petitioners are receiving pension since they were absorbed in the
regular service prior to 01.04.2003. Therefore, all the writ petitions are
devoid of merits and liable to be dismissed. Accordingly, all the writ
petitions are dismissed. Consequently, connected miscellaneous petitions
are closed. There shall be no order as to costs.
01.03.2024
Internet: Yes
Index: Yes/No
Speaking/Non-speaking order
lok
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W.P.No.27020 of 2021, etc batch
To
1.Chairman cum Managing Director,
Tamilnadu Generation and Distribution Corporation Limited,
2.The Chief Engineer(Personnel),
Tamilnadu Generation and Distribution Corporation Limited,
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W.P.No.27020 of 2021, etc batch
3.Superintending Engineer,
Tamilnadu Generation and Distribution Corporation,
Tiruvannamalai Electricity Distribution Circle,
Vengikkal,
Tiruvannamalai
G.K.ILANTHIRAIYAN, J.
lok
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W.P.No.27020 of 2021, etc batch
W.P.Nos.27020, 27040, 27038, 27035, 27032 of 2021, 14354 of 2022,
27028 of 2021, 14358, 23703, 23706, 23710, 23711, 23723, 23727,
23729, 23746, 23749, 26282, 26293, 26285, 26290, 26199, 26207,
26210, 26213, 31076, 31080, 31094, 31097, 32900, 32902,
32905, 32907, 750, 753, 755, 759, 774, 1539, 1542, 1546, 1548,
3421, 3425, 3429, 3431, 3434, 3731, 3735, 3737, 3738, 3740, 3745,
8047, 8051, 8054, 8058, 12914, 12916, 12917, 14378, 14516,
14830, 14880, 14884, 15327, 15348 & 21137 of 2022
01.03.2024
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