Madras High Court
Branch Manager vs R.Kumar on 30 October, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.10.2018
CORAM
THE HONOURABLE MR. JUSTICE G.R.SWAMINATHAN
REV.APLW(MD).No.53 of 2018
and
W.M.P(MD).No.19821 of 2018
1.Branch Manager,
Tamilnadu State Transport Corporation,
Vanarapattai,
Tirunelveli.
2.The Administrative Office,
Tamilnadu State Transport Corporation,
Tirunelveli Zone,
Tirunelveli. ... Petitioners
Vs.
1.R.Kumar
2.The Administrative Officer,
Pension Authority,
Tamilnadu State Transport
Corporation, Pallavan Salai,
Channai-2. ...Respondents
PRAYER: Application filed under Order Section 114 and Order 47 of Civil
Procedure Code, against the writ petition order in W.P(MD).No.3708 of 2018
dated 23.03.2018 passed by this Court.
For Petitioners : Mr.K.Sathiya Singh
For Respondents : Mr.V.Balasubramanian
http://www.judis.nic.in
2
ORDER
The first respondent in this review petition joined TNSTC, Tirunelveli Limited as a Conductor on 05.11.1987. He was suffered certain disabilities when he was in service. Therefore, he was medically discharged on 17.10.2000. He raised an industrial dispute in ID No.124 of 2004. Award was passed on 30.11.2007 and he was given an alternative employment. He reached the age of superannuation on 30.06.2016. Since the benefits payable to him were not disbursed, he filed W.P(MD).No.3708 of 2018. This Court, by order dated 23.03.2018, directed the Management to settle his pensionary and other retiral benefits.
2.Contending that the direction given by this Court was not complied with, the writ petitioner filed a contempt petition in Cont.P(MD).No.1161 of 2018. When the Contempt Petition was taken up for hearing, the learned Standing Counsel for the Transport Corporation submitted that the petitioner is not entitled to any pensionary benefits. He has also produced a copy of the Office order, dated 19.10.2018, in this regard. The Management subsequently filed this review petition seeking to review the order dated 23.03.2018 allowing W.P(MD).No.3708 of 2018.
http://www.judis.nic.in 3
3.The learned Standing Counsel appearing for the review applicant/TNSTC pointed out that the writ petitioner was medically discharged on 17.10.2000. He raised an industrial dispute later. In the award passed on 30.11.2007 in ID No.124 of 2004 by the Labour Court, Tirunelveli, the request for granting continuity of service has been specifically rejected. The writ petitioner was only directed to be given alternative employment. Therefore, the service of the writ petitioner will have to be computed with effect from the date, when he was given alternative employment. The said period is less than ten years. Therefore, the writ petitioner cannot be said to be entitled to any pension and since this aspect of the matter was not taken note of by this Court, the learned Standing Counsel wanted this Court to review the earlier order dated 23.03.2018 made in W.P(MD).No.3708 of 2018.
4.No doubt, the submission of the learned Standing Counsel appearing for the Transport Corporation is attractive. The award passed by the Labour Court gives an impression that the prayer for continuity of service has been rejected. It is also true that the award of the Labour Court has become final, since it was not challenged by the writ petitioner. But then this Court can neither lose sight of the larger factual matrix nor the statutory position. During the relevant time, Central Act No.1 of 1996 held the field. The writ petitioner was medically discharged, since he was said to have acquired disability during http://www.judis.nic.in 4 his service. Therefore, Section 47 of the Said Act will come into play. Section 47(1) of Central Act No.1 of 1996 reads as follows:-
“Non-discrimination in Government employment-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service;
provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits;
provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation whichever is earlier.”
5.The employee who acquired disability during service will have to be given an alternative employment and continuity of service cannot be denied. As the learned counsel appearing for the writ petitioner pointed out, the Pension Rules governing the Transport Corporation Employees are also in favour of the writ petitioner. The learned counsel appearing for the writ petitioner pointed out that those employees who have been discharged on medical grounds, if reinstated, will be entitled to the benefit of their past service and will have to be granted pension. Rule 19(e) of the Pension Rules reads as follows:-
“In the case of employee who are medically discharged and are not re-employed, they are eligible for benefits under Clause 19(a) above. If they are re-employed, they are eligible for http://www.judis.nic.in continuity of membership and the benefits will be allowed only at 5 the time of normal retirement by counting the past service also.”
6.The benefit conferred by the statute and the relevant Service Rules cannot be taken away for any reason. If the award is read as a whole, this Court is of the view that continuity of service will also have to be given to the writ petitioner. Even while sustaining the order dated 17.10.2000, whereby the writ petitioner was discharged, the Labour Court had directed the Management to grant alternative employment to the writ petitioner. It did not stop with that. It is further stated that for the period from 17.10.2000, till the date of passing of the award, the writ petitioner will have to be paid 50% of the last pay drawn salary as a compensation. Pursuant to the direction given by the Labour Court, the writ petitioner was also given alternative employment. Therefore, it cannot be contended that the continuity of service ought to be denied. .
7.In this view of the matter, no ground has been made out for reviewing the order passed by this Court on 23.03.2018 allowing W.P(MD).No. 3708 of 2018 and therefore, this Review Application is dismissed.
8.The learned Standing Counsel for the Management Corporation points out that the Pension Rules came into force with effect from 01.09.1998. Admittedly, on the said date, the revision petitioner was in service . Hence, he http://www.judis.nic.in 6 shall be entitled to the benefits of his service from the year 1987 onwards. The revision petitioner was out of service during 17.10.2000 to 22.08.2008. He rejoined in the service and was given alternative employment on 23.08.2008. He retired on 30.06.2016. Therefore, the pensionable service of the revision petitioner will be from 05.11.1987 to 17.10.2000 and the period from 23.08.2008 till 30.06.2016. Thus, approximately, the pensionable service of the revision petitioner will be 21 years. Since the revision petitioner was out of employment from 17.10.2000 to 22.08.2018, there is no contribution from his side. The said eight years alone will not be counted for the purpose of computing the pensionary benefits. No costs. Consequently, connected miscellaneous petition is also dismissed.
30.10.2018 Index : Yes / No Internet: Yes / No rmk Note: Issue order copy on 08.11.2018 http://www.judis.nic.in G.R.SWAMINATHAN,J., 7 rmk REV.APLW(MD).No.53 of 2018 30.10.2018 http://www.judis.nic.in