Madras High Court
Rep By Its General Secretary vs The Government Of Tamil Nadu on 23 October, 2024
W.P.Nos.24797 of 2015 & 24040 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.10.2024
CORAM
THE HONOURABLE MR.JUSTICE MUMMINENI SUDHEER KUMAR
W.P.Nos.24797 of 2015 & 24040 of 2012
W.P.No.24797 of 2015:
Tamilnadu Highways Road Employees
Association, (Regn.No.97/2001),
Rep by its General Secretary,
No.3/1076-2, Muthuramalingam Nagar,
Virudhunagar – 626 001. ... Petitioner
Vs.
1.The Government of Tamil Nadu,
Rep. by the Secretary to Government,
Highways Department,
Fort St. George, Chennai – 600 009.
2.The Chief Engineer (General),
Highways Department,
Chepauk, Chennai – 600 005. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus calling for the records connected with
the impugned orders passed by the 1st respondent in G.O.Ms.No.133 Highways
(HM2) Department dated 21.08.2006 and Government letter
No.6417/HM2/2011-5, Highways and Minor Ports (HM2) Department dated
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W.P.Nos.24797 of 2015 & 24040 of 2012
29.09.2011 and quash that portion of the order relating to the treating of the
period of absence for about 41 months from the date of termination i.e.,
05.09.2002 to till the date of re-joining as extraordinary leave without pay and
allowances and consequently direct the 1st respondent to treat the above period
“with continuity of service” as duty without any arrears of pay and allowances
which will count for notional pay fixation and pensionary benefits as per the
judgment of this Hon'ble Court dated 08.09.2004 in W.P.No.16128 of 2003 etc.
to the members of the Petitioner Association.
For Petitioner : Mr.K.M.Ramesh
For R1 & R2 : Mr.Vadivelu Deenadayalan
Additional Government Pleader.
W.P.No.24040 of 2012:
1.N.Murugesan
2.K.Devarasu
3.P.Krishnan
4.L.Chandran
5.A.Ponnusamy
6.A.Baskar
7.M.Suresh Kumar
8.A.Sundaram
9.K.Ravikumar
10.A.Jagannathan
11.P.Ramasamy
12.S.Sellamuthu
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W.P.Nos.24797 of 2015 & 24040 of 2012
13.L.Madheswaran
14.S.Subramani
15.S.Palanivel ... Petitioners
Vs.
1.The Secretary to Government of Tamil Nadu
Highways Department
Secretariat,
Chennai – 600 009.
2.The Chief Engineer (General)
Highways Department,
Chennai – 600 005.
3.T.Arjunan
4.K.Settu
5.P.Perumal
6.G.Barani
7.S.Murugesan
8.V.Rajaram
9.M.Pazhaniyapan
10.S.Sanmugam
11.R.Marimuthu
12.S.Sellapan
13.C.Kannan
14.P.Skylop
15.A.Sekar
16.A.Abifulla
17.P.Magendran
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W.P.Nos.24797 of 2015 & 24040 of 2012
18.K.Sathiyamoorthi
19.N.Ramakrishnan
20.S.Sasikumar
21.P.Murugan
22.P.Balakrishnan
23.C.P.Murugesan
24.K.P.Pazhanisamy
25.S.Venkatasalam
26.R.Selvam
27.C.Chinnathambi
28.P.Kuppusamy
29.S.Senthil Kumar
30.K.Murugesan
31.M.Karthikeyan
32.V.Pazhanivel
33.A.Kumaradevarajan
34.S.Babu Kennady
35.R.Selvarasu
36.C.Vasudevan
37.P.Pazhanichamy
38.M.Porselvan
39.P.Govindasamy
40.V.Kozhandhai Velu
41.S.Subramaniyan
42.S.Thangavel
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W.P.Nos.24797 of 2015 & 24040 of 2012
43.S.Magalingam
44.R.Sanmugam
45.G.Rajendran
46.S.Thangaraj
47.R.Anbu
48.V.Seenivasan
49.M.Nallamuthu
50.K.Murugesan
51.M.A.Najumudheen
52.C.Pazhanimuthu
53.M.Manogaran
54.G.Pazhanivel
55.T.Venkadesan
56.S.Murugesan
57.M.Murugesan
58.C.Madeshwaran
59.T.Govindarasu
60.P.Pazhanichamy
61.R.Muthusamy
62.M.Balan
63.M.Balasubramaniyan
64.A.John Basha
65.K.Paneer Selvam
66.P.Balamurali
67.N.Selvadurai
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W.P.Nos.24797 of 2015 & 24040 of 2012
68.R.Senthil Kumar
69.R.Sinnu Samy
70.P.Pradeep Sravanakumar
71.M.Krishnan
72.M.Sadhasivam
73.V.Mariyappan
74.K.Anbazhagan
75.S.Muthukumar
76.E.Arivazhagan
77.P.Periyasamy
78.M.Senthil Kumar
79.R.Manickam
80.K.Senthil Kumar
81.G.Sekar
82.N.Ponnusamy
83.N.Sandhiramogan
84.V.Dhanasekaran
85.K.Sasikumar
86.V.Sangameshwaran
87.K.Ramesh
88.M.Prakash
89.K.Selvarasu
90.D.Ramesh
91.K.Jayaraj
92.K.Ramesh Kumar
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W.P.Nos.24797 of 2015 & 24040 of 2012
93.R.Kalyanasundaram
94.E.P.Suresh
95.P.Manogaran
96.Selvaraji
97.M.Mogandass
98.P.Kandasamy
99.P.Jaisankar
100.S.Pandiyan
101.P.Arumugam
102.P.Anbarasan
103.M.Rajendran
104.K.Muthusamy
105.A.Ragu
106.A.Veeramuthu
107.S.Durai
108.S.Sakthivel
109.M.Subramaniyan
110.V.Arumugam
111.M.Dhanarasu
112.K.Ravi
113.R.Kalimuthu
114.K.Thaniyarasu
115.K.Ramdass
116.M.Karuppannan
117.R.Pazhanisamy
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W.P.Nos.24797 of 2015 & 24040 of 2012
118.V.Kanagasekaran
119.P.Rajendran
120.A.Angamuthu
121.C.Palan
122.P.Karunanidhi
123.S.Naraynan
124.A.Madhayan
125.A.Senthil Kumar
126.K.Rajan
127.M.Govindasamy
128.K.Sivakumar
129.A.Selvaraj
130.N.Ravi
131.K.Kumaravel
132.A.Kannan
133.K.Kesavakumar
134.M.Mahalingam
135.P.Kumar
136.M.Kandasamy
137.M.Ganesan ... Respondents
*R3 to R137 are impleaded as per order dated 10.03.2017 in
W.M.P.No.13124/2016 in W.P.No.2040/2012
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus calling for the records connected with
the impugned orders passed by the 1st respondent in G.O.Ms.No.133 Highways
(HM2) Department dated 21.08.2006 and Government letter Highways and
Page 8 of 18
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W.P.Nos.24797 of 2015 & 24040 of 2012
Minor Ports (HM2) Department dated 29.09.2011 and quash that portion of the
order relating to the treating of the period of absence for about 41 months from
the date of termination i.e., 05.09.2002 to till the date of re-joining as
extraordinary leave without pay and allowances and consequently direct the 1st
respondent to treat the above period “with continuity of service” as duty
without any arrears of pay and allowances which will count for notional pay
fixation and pensionary benefits as per the judgment of this Hon'ble Court
dated 08.09.2004 in W.P.No.16128 of 2003 etc. in so far as the petitioners
concerned.
For Petitioners : Mr.R.Rengaramanujam
For R1 & R2 : Mr.Vadivelu Deenadayalan
Additional Government Pleader.
COMMON O R D E R
These two writ petitions have been filed by the petitioners challenging
G.O.Ms.No.133, Highways (HM2) Department dated 21.08.2006, and the
consequential Letter No.6417/HM2/2011-5, dated 29.09.2011, whereby the
period during which the members of the petitioners' association were out of
service due to termination of their services was treated as extraordinary leave,
on the ground that the said impugned Government order is contrary to the order
passed by this Court in W.P.No.14661 of 2004 and batch dated 08.09.2004.
2. The brief facts of the case are, the petitioner, in W.P.No.24797 of
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W.P.Nos.24797 of 2015 & 24040 of 2012
2015 is an association of Gang Mazdoors working in the Tamil Nadu Highways
Department, whereas, the petitioners in W.P.No.24040 of 2012 are the persons
worked as Gang Mazdoors in Tamil Nadu Highways Department. When the
respondent State have abolished the services of Gang Mazdoors working in
Highways Department by issuing G.O.Ms.No.160, Highways (HM)
Department, dated 05.09.2002, the said order was challenged before the then
Tamil Nadu Administrative Tribunal in O.A.No.5028 of 2002 and batch etc.
The said batch of O.As were dismissed by the then Tribunal granting six
months salary to the Gang Mazdoors whose services were abolished.
Aggrieved by the same, the petitioner association and other Gang Mazdoors
approached this Court by filing W.P.No.14661 of 2004 and batch and the said
batch of writ petitions were allowed by the learned Division Bench of this
Court by an order dated 08.09.2004. The operative portion of the said order
reads as under:
“[99] Therefore, on an over all analysis of the stand of the
State Government, we find that its various submissions are
without any sound basis and the challenge of the Gang
Mazdoors to their orders of termination being well justified,
in normal course, there can be no other relief to the said
Gang Mazdoors except directing the respondent State to
reinstate all of them with continuity of service and all other
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W.P.Nos.24797 of 2015 & 24040 of 2012
attendant benefits and even full back wages. Yet we have
some hesitation regarding payment of full back wages, not
because we have any doubt regarding the illegality and
imprudence of the State's a misadventure but because of the
financial impact. The State was obviously at fault and the
individuals (albeit in thousands) were the hapless victims.
However, the difficult and delicate question remains- should
the entire burden be borne by the entire public of the State?
It is obvious that the State Government had made some
alternate arrangements for maintenance of roads by
incurring certain expenditure. If the employees would be paid
the entire back wages, obviously, there would be huge burden
on the public exchequer. Even though the State Government
is responsible for such a situation and not the employees,
having regard to the facts and circumstances of the case, we
feel interest of justice would be served by directing payment
of back wages for a period of six months, which would
roughly be equivalent to one fourth of the entire back wages,
and ordered accordingly. We accordingly direct the State
Government to reinstate all the Gang Mazdoors, with
continuity of service, but with six months backwages.”
3. From the above, it is evident that this Court, directed the
respondent State to reinstate all the Gang Mazdoors with continuity of service
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W.P.Nos.24797 of 2015 & 24040 of 2012
but with six months back wages only. Then, implementing the said order, the
respondent State issued impugned order in G.O.Ms.No.133 Highways (HM2)
Department dated 21.08.2006. The operative portion of the impugned
Government order reads as under:
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FLk;g ey epjp nghd;w rYiffis clnd
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4. From the above, it is evident that the period from the date of
termination till the date of reinstatement into service is now sought to be treated
as extraordinary leave, thereby dis-entitling the petitioners to count the said
services for the purpose of fixation of pay, continuity of service, terminal
benefits, etc. Under those circumstances, the petitioners made a claim for
treating the said period as in-service for all practical purposes. But the said
request of the petitioners was rejected by passing impugned Letter dated
29.09.2011 stating that the same would be contrary to the Tamil Nadu Pension
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W.P.Nos.24797 of 2015 & 24040 of 2012
Rules.
5. From the order dated 08.09.2004 passed by the learned Division
Bench of this Court, it is evident that, Gang Mazdoors were granted the benefit
of continuity of service from the date of termination till the date of
reinstatement. The said order has become final and the respondent State have
taken decision to implement the said order. Having taken note of the said order
and having issued G.O.Ms.No.133 dated 21.08.2006, the respondent State
erroneously intended to treat the period during which the Gang Mazdoors were
out of service, as extraordinary leave. Such an approach by the respondent
State is totally contrary to the order passed by the learned Division Bench of
this Court as noted above. Hence, that portion of the Government order is
liable to be declared as illegal and arbitrary.
6. Further, it is also necessary to notice that, in response to the notice
issued by this Court, the respondent State filed counter affidavit, wherein at
paragraph 16 they have stated as under:
“16. It is submitted that the allegations in paragraph
14 of the affidavit are denied as false and untrue. The
allegations made in the grounds of the affidavit under
counter are denied as false, frivolous, baseless and
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W.P.Nos.24797 of 2015 & 24040 of 2012
vexatious. With regard to the averments made in the grounds
of the affidavit, it is submitted as follows:-
(a) G.O.Ms.No. 133, Highways Department, dated
21.08.2006 and the Government Letter, dated 29.09.2011 are
fair, just and have been passed based on law, the order of
this Hon'ble Court, after proper application of mind by the
Government.
(b) G.O.Ms.No. 160, dated 05.09.2002 was not
cancelled by the Government, but set-aside by this Hon'ble
Court. The G.O.(Ms). No. 22, Highways Department, dated
10.02.2006 was passed to comply with the directions of this
Hon'ble Court. In consonance with the said G.O. (Ms). No.
22, dated 10.02.2006 and in compliance of the order of this
Hon'ble Court, G.O.Ms. No. 133, Highways Department,
dated 21.08.2006, was passed. There is no contravention
and/or contrariness. The dismissal period has not been
treated as break in service for all practical purposes, but as
continuity of service by which the service before the dismissal
and the service after joining are taken into consideration for
calculating the service period for all attendant benefits,
including pensionary benefits. There is no illegality in the
said Government order and the same is not liable to be set-
aside.
(c) All the Gang Mazdoors are getting all monetary
and service benefits and not otherwise as alleged by the
petitioner Association. The petitioner Association have
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W.P.Nos.24797 of 2015 & 24040 of 2012
attempted to mislead this Hon'ble Court by their after
thoughts. The dismissal period has already been regulated as
extra ordinary leave without pay. There cannot be any
further regularization as claimed by the petitioner
Association. By getting the continuity of service, the
petitioner Association is not affected in any manner including
in getting their terminal benefits. The respondents have not
misconstrued the order of this Hon'ble Court and no damage,
much less any great damage, has been done. Instead the
petitioner Association wanted to illegally enrich themselves
at the cost of Government exchequer, which is in violation of
the order of this Hon'ble Court. The Government Order and
the rejection of representation of the Association are valid
and are not violative of any service norms and there is no
malice of whatsoever nature in law.
(d) No punishment of whatsoever nature has been
imposed on the Gang Mazdoors by the Government through
G.O.(Ms). No.133, Highways Department, dated 21.08.2006,
as alleged. The Government have regulated the dismissal
period with continuity of service. The GO is not against the
scope of the order of this Hon'ble Court and is not arbitrary,
but just and there is no malafide of whatsoever nature on the
part of Government/respondents.”
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W.P.Nos.24797 of 2015 & 24040 of 2012
7. From the above it is evident that, the true intend of the order
passed by the learned Division Bench of this Court is rightly understood by the
respondent State, and they have also expressed that all the benefits as narrated
in the paragraph 16 of the counter affidavit will be extended to the petitioners.
8. If that be the case, the language used in paragraph 3 of
G.O.Ms.No.133 dated 21.08.2006 to treat the period during which the Gang
Mazdoors were out of service as extraordinary leave is totally meaningless. In
the light of categorical stand taken by the respondent State in paragraph 16 of
the counter affidavit filed before this Court, and in the light of the order passed
by the learned Division Bench of this Court as noted above, the petitioners are
entitled for treating the period during which the Gang Mazdoors were out of
service as in-service for all practical purposes including continuity of service,
terminal benefits, fixation of pay, etc.
9. In the light of the above, the action of the respondent State in
treating the period during which the Gang Mazdoors in question were out of
service as leave on loss of pay is declared as illegal and the said period is liable
to be treated as in-service for all practical purposes including fixation of pay,
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W.P.Nos.24797 of 2015 & 24040 of 2012
grant of increments, continuity of service for the purpose of terminal benefits,
etc.
10. Accordingly, the impugned orders viz, G.O.Ms.No.133 Highways
Department, dated 21.08.2006 is quashed to the extent as indicated above, and
the consequential Letter No.6417/HM2/2011-5, Highways and Minor Ports
(HM2) Department dated 29.09.2011 is also quashed. The respondent State is
further directed to extend the benefits to all the persons, who are entitled for the
benefits under the orders passed by the learned Division Bench in
W.P.No.14661 of 2004 and batch dated 08.09.2004, as expeditiously as
possible at any rate within a period of eight (8) weeks from the date of receipt
of a copy of this order.
11. Accordingly, these writ petitions are allowed. The connected
miscellaneous petitions, if any, shall stand closed. No costs.
23.10.2024
(½)
dpa
Index : Yes / No
Speaking order / Non-speaking order
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W.P.Nos.24797 of 2015 & 24040 of 2012
MUMMINENI SUDHEER KUMAR, J.
dpa
To
1.The Secretary to Government,
Government of Tamil Nadu,
Highways Department,
Fort St. George, Chennai – 600 009.
2.The Chief Engineer (General),
Highways Department,
Chepauk, Chennai – 600 005.
W.P.Nos.24797 of 2015 & 24040 of 2012
23.10.2024
https://www.mhc.tn.gov.in/judis
