Madras High Court
K.Thiravidaselvam vs The Additional Chief Secretary To on 4 March, 2024
W.P.(MD).No.1055 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.03.2024
CORAM
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD).No.1055 of 2024
and
W.M.P.(MD)No.1086 of 2024
K.Thiravidaselvam ... Petitioner
Vs.
1. The Additional Chief Secretary to
Government of Tamilnadu,
Transport Department, Secretariat,
Chennai 09.
2. The Tamil Nadu State Transport
Corporation (Kumbakonam) Ltd.,
Represented by its Managing Director,
No.27, Railway Station New Road,
Kumbakonam.
3. The General Manager,
The Tamil nadu State Transport Corporation
(Kumbakonam) Ltd.,
Pudukottai Region, Pudukottai.
4. The Administrator,
The Tamil Nadu Transport Corporation
Employees Pension Fund Trust,
Thiruvalluvar Illam,
Pallavan Salai, Chennai 02. ... Respondents
1/10
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.1055 of 2024
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Cetriorarified Mandamus, calling for the
records pertaining to the impugned Government letter issued by the 1st
Respondent in Ref.No.2048/E1/2022-2 Transport (E1) Department dated
17.02.2023, quash the same in so for as restricting the payment of revised
pension prospectively and freezing rate of Dearness Allowance at present rates
and in so far as not giving any direction to 2nd respondent to pay other terminal
benefits to the petitioner including difference amounts in Gratuity, Leave salary
based on the revised salary payable to him as on the date of his retirement as
per pay revision given under 14th wage revision settlement signed under section
12(3) of the I.D. Act dated 24.08.2022 and consequently directing the
respondents to pay the petitioner difference amounts in gratuity, Leave salary,
and Pension with arrears based on such wages payable to him as on the date of
his retirement that is as on 30.09.2019 in terms of the above settlement along
with interest at the rate of 6% per annum within a timeframe as may be fixed by
this Hon'ble Court.
For Petitioner : Mr.A.Rahul
For R-1 : Mr.R.Ragavendran
Government Advocate
For R-2 & R-3 : Mr.K.Ramaiah
For R-4 : Mr.S.C.Herold Singh,
Standing Counsel
2/10
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.1055 of 2024
ORDER
Heard, the learned Counsels on either sides. Carefully perused the
materials available on record.
2. The impugned letter dated 17.02.2023 obviously deprives the
petitioner's right to refixation of their terminal benefits including Gratuity,
Leave Salary, Commuted value of pension, monthly pension and family
pension, which was vested on them under clause 1 and 2 of the 14th wage
revision settlement. Since this deprivation of refixation of terminal benefits of
the petitioner, which was secured under the 14th wage revision settlement
arrived at, as a result of the collective bargaining between the representatives of
the State Government, State owned transport undertakings and the various trade
unions, with full and matured deliberation, after taking into account the interest
of the employees, the interest of the Transport Corporation and that of the state,
with a view to approximating towards the goal of a living wage as envisaged in
Article 43 of the Constitution, would amount to an unreasonable restriction,
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the impugned letter will not stand the scrutiny of law and the same has to be
modified.
3. During the implementation of the 13th wage revision settlement, the
Government issued G.O.Ms.No.142 dated 26.08.2019, thereby directing to
implement the revision of the pension as per 7th pay commission to the
pensioners with notional effect from 01.01.2016 and with monetary benefits
prospectively, thereby freezing the dearness allowance at the present rates
without any change. The said G.O. was challenged by the pensioners by filing
W.P.(MD)No.1147 of 2020 etc., batch and a learned Single Judge of this Court,
by his order dated 02.03.2023 modified the aforesaid Government order with
certain directions. A Writ Appeal was preferred as against the said order of the
learned Single Judge in W.A.(MD)No.1240 of 2023 and the Hon'ble Division
Bench of this Court clearly indicating that executive instructions cannot
supersede the extant rules upheld the order passed by the learned Single Judge
and the relevant portion of which is extracted as follows:
“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
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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 Another Vs. G.Sethuraman1 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 v.
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 v.
Palitana Sugar Mills Pvt. Ltd., AIR 2003 SC 511 (para-33), C.W.T v.
Trustees of H. E.H., (2003) 5 SCC 122 (para-20), Dipak Chandra
Ruhidas v. 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 7.6.1996 is that the writ petitioner is deemed to have
been retrospectively promoted as Executive Engineer from 9.6.1988.
https://www.mhc.tn.gov.in/judis
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 9.6.1988, and our eyes should not
boggle half way. For these reasons, we fully agree with the view taken
by the learned single Judge in the impugned judgment.”
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. ”
4. The same was further challenged by the respondent Corporation before
the Hon'ble Supreme Court by filing a SLP in (C) No.27785 of 2023 and the
Hon'ble Apex Court, by its order dated 06.02.2024 dismissed the same. In the
same manner, after having arrived at a settlement by signing the 14th wage
revision settlement, in the instant lis, the Government has issued the impugned
Government letter dated 17.02.2023, in similar lines to the modified
G.O.Ms.No.142, dated 26.08.2019, thereby directing the respondents to
implement the revision of the pension with notional effect from 01.09.2019 and
https://www.mhc.tn.gov.in/judis
with monetary benefits prospectively and freezing the dearness allowance at the
present rates without any change.
5. Fully fortified by the judgment passed by the Hon'ble Division Bench
of this Court in the case discussed supra, I hereby observe that once a particular
decision of implementing revision of wages 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. Concluding that a Government
letter cannot over rule the extant rules, when the rules says that the employees
are entitled to the benefits immediately after retirement, the employees who
worked in the 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 benefits were given to the working employees under
the 14th wage revision settlement.
6. Hence, in view of the fact that the pension has been revised in terms of
the 14th wage revision settlement and rule 15 of the Tamil Nadu State Transport
Corporation Employees Pension Fund Rules, pensionable salary shall be the
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last drawn basic salary and taking into account that, the last drawn basic salary
has been revised in terms of the 14th wage revision settlement, impugned letter
is hereby modified by directing the respondents to revise the monetary benefits
and the difference in the revised pension is payable from the date on which the
revised monetary benefits were given to the working employees under the 14th
wage revision settlement.
7. Further with regard to the dearness allowance the retired employees
are entitled to the percentage of the dearness allowances as fixed by the State
Government to the inservice employees. The respondents are directed to
calculate the difference in gratuity and leave salary from the date of retirement.
Further, the respondents are directed to calculate revised pension with arrears
and salary arrear 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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8. Accordingly, this Writ Petition stands disposed of. No costs.
Consequently, connected miscellaneous petition is closed.
04.03.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
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To
1. The Additional Chief Secretary to
Government of Tamilnadu,
Transport Department, Secretariat,
Chennai 09.
2. The Tamil Nadu State Transport
Corporation (Kumbakonam) Ltd.,
Represented by its Managing Director,
No.27, Railway Station New Road,
Kumbakonam.
3. The General Manager,
The Tamil nadu State Transport Corporation
(Kumbakonam) Ltd.,
Pudukottai Region, Pudukottai.
4. The Administrator,
The Tamil Nadu Transport Corporation
Employees Pension Fund Trust,
Thiruvalluvar Illam,Pallavan Salai, Chennai 02.
https://www.mhc.tn.gov.in/judis
L.VICTORIA GOWRI, J.
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04.03.2024
https://www.mhc.tn.gov.in/judis
