Madras High Court
N.Thayumanavar vs The Secretary on 14 February, 2017
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.02.2017 CORAM THE HON'BLE Mr.JUSTICE R.SURESH KUMAR W.P.(MD) No.69 of 2012 N.Thayumanavar ... Petitioner -vs- 1. The Secretary, Tamil Nadu State Transport Department, Secretariat, Chennai - 9. 2. The Managing Director, Tamil Nadu Transport Corporation Ltd., Vannarapettai, Tirunelveli. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a WRIT OF CERTIORARIFIED MANDAMUS calling for the records from the file of the 2nd Respondent relating to the refusal to sanction the Pension vide Letter No.4864/Admin.9/TNSTC (Tnvli)/Tnvli/2010 dated 18-04- 2011 and quash the same and further directing the respondents to concede the demand for Pension as prayed for. !For Petitioner : Mr.A.John Vincent For Respondents : Mr.V.Muruganantham Additional Government Pleader :ORDER
The prayer in the writ petition is for a writ of certiorarified mandamus calling for the records from the file of the second respondent relating to the refusal to sanction the Pension vide Letter No.4864/Admin.9/TNSTC (Tnvli)/Tnvli/2010 dated 18-04-2011 and quash the same and further direct the respondents to concede the demand for pension as prayed for.
2.The case of the petitioner is that the petitioner joined the services of the respondent Corporation as a Driver on 12.01.1996 at the erstwhile State Transport Department. Thereafter, when a policy decision was taken by the Government to establish separate Transport Corporations, in the year 1974, the petitioner's service had been brought under the Kattapomman Transport Corporation as a driver. The petitioner had been serving as a driver at the said Kattapomman Transport Corporation till 03.07.1978. Thereafter, he became absent unauthorisedly. Therefore, for this unauthorised absence, by an order dated 07.10.1978, he has been removed from service by the second respondent Corporation. As against the said order of removal, the petitioner had not made any challenge and therefore, the said order of removal has become final. Accordingly, the petitioner was removed from service on 07.10.1978.
3.The petitioner, now, has contended that the present writ petition, challenging the order of the second respondent Transport Corporation dated 18.04.2011, whereby the petitioner's request to get pension from the second respondent Corporation was turned down. Challenging the same, the present writ petition has been filed.
4.The learned counsel appearing for the petitioner would submit that the reason adduced in the impugned order is untenable because the petitioner had not opted to get pension as per OSSR, (a non pensionable scheme) and also the further reason cited in the impugned order is that those who have been removed from services between 1975 and 1982 would not be entitled to get benefit as per G.O.Ms.No.42, Transport Department, dated 27.05.2005. According to the petitioner, the petitioner had been in service with the erstwhile Transport department till 03.10.1972. Thereafter, the respondent Corporation had commenced their services in November 1972 and therefore, en masse of drivers were transferred and absorption has been made. The petitioner's service has been absorbed in the second respondent Corporation, which was the erstwhile Kattapomman Transport Corporation. The petitioner has completed 10 years of qualifying service from 1966 to 1976 and therefore, calculating the said service, he had rendered at the erstwhile transport corporation or in the present Corporation, he would be entitled to get pensionable benefits. Insofar as the contentions raised in the impugned order that he has given option under OSSR scheme is not correct and the learned counsel for the petitioner has contended that the petitioner had not given any option under that scheme, since he has been having 10 years of qualifying service combinedly both at the services of the erstwhile Transport Department and at the newly created second respondent Corporation. He is entitled for pensionable benefits. Hence, the impugned order is liable to be quashed and the writ petition has to be allowed.
5.Per contra, the learned Standing Counsel appearing for the second respondent would contend that the petitioner had been removed on 07.10.1978 and that the said order has become final. In respect of the other benefits, such as gratuity, etc., the second respondent Corporation has already paid the same and the petitioner has also received it. This has been mentioned in the order dated 05.01.2008 issued by the second respondent Corporation. Since he has received the other benefits on his removal of service, he would not be entitled to get any pension, because he was removed from service. Insofar the services rendered by the petitioner at the erstwhile Transport Department, the second respondent /Transport Corporation cannot be made responsible and it is for the petitioner to approach the said erstwhile department.
6.Heard the said submissions made by the learned counsel appearing for the respective parties.
7.It is an admitted fact that the petitioner had been removed from service for his alleged unauthorized absent by an order dated 07.10.1978. From that date, the petitioner was not in service with the second respondent Corporation, because he was removed from service. It is a settled proposition of law that a dismissed employee is not entitled to get pension. In this case, the petitioner was dismissed from service on 07.10.1978 and the said order has become final. Admittedly, as against the said order, dated 07.10.1978, the petitioner cannot seek any benefit from the second respondent Corporation and the only amount for which he is eligible is the gratuity and the said amount, also, as has been rightly pointed out by the learned counsel appearing for the second respondent, has been paid to the petitioner.
8.Insofar as the claim made by the petitioner that the services rendered by him to the second respondent Corporation has to be taken, is concerned, the learned counsel for the petitioner would invite the attention of the Court to the Government letter dated 28.04.2005, wherein, the following has been mentioned.
?2. I am directed to state that due to various litigations in the various courts (High Court), TAT, Supreme Court of India and administrative reasons the settlement of terminal benefits in respect of TNSTD employees absorbed in State Transport Undertakings is being settled belatedly from 1986 onwards as per the orders issued in G.O.Ms.No.1028, Transport dated 23.09.1985 after a long gap of 10 years and above with 15% interest as per the directions of the Honourable Supreme Court of India. In view of the above position, the employees in question referred to in your letter cited were not paid the pension/gratuity as ordered in the said G.O. at the time of their relief from the erstwhile TNSTD.
3. I am further to state that Rule 351(1) of the M.L.P.R.1960 applies only to the pensioners already receiving pension for their services in the TNSTD and withholding or withdrawing of pension or part thereof as per the section 351(1) arises only from the stage where the employees in question were discharged removed from service in Transport Corporation. As the employees in the instant case have not been sanctioned pension/gratuity for the services rendered in TNSTD so far, the question of applying the said rule 351(1) at this stage does not arise. the fact that they were discharged/removed from service in the Corporation will not disentitle them to receive pension/gratuity for the period of Government service.?
9.In the said letter, it has been clarified with the fact that the employees who had dismissed or removed from service in the Transport Corporation will not disentitle them to claim pension/gratuity in the Government service. Therefore, if at all the petitioner had been removed from service, that would not disentitle him to claim pension or gratuity, if he is otherwise eligible, for seeking pension from the erstwhile Department, within the meaning of M.L.P.R 1960 under Rule 351(1). In view of the same, it is for the petitioner to approach the State Transport Department to seek pension under the said rule, provided, he is entitled to get the same.
10.Resultantly, the following orders are passed in the present writ petition.
i)The impugned order, which is under challenge herein is sustainable and therefore, no interference is required.
ii)In view of the clarification made in letter of the Transport Corporation, dated 28.04.2015, it is open to the petitioner to approach the State Transport Department for getting pension/gratuity, provided, he is entitled to get it or advised to do so.
iii)If any such representation or request is made by the petitioner, the same shall be considered and decided on merits and in accordance with law, especially on the basis of Rule 151(1) of the M.L.P.R 1960 and also the clarification Letter No.19359/ Tpt/ TBC-2/ 2003-24 dated 28.04.2005 and an order to that effect to be passed by the concerned authority, to him, such representation is made, within a period of 8 weeks from the date of receipt of the said representation.
iv)It is made clear that the petitioner is advised to make representation, as indicated above, within a period of two weeks from the date of receipt of a copy of this order.
11. In the result, this writ petition is dismissed. No costs.
To
1. The Secretary, Tamil Nadu State Transport Department, Secretariat, Chennai - 9.
2. The Managing Director, Tamil Nadu Transport Corporation Ltd., Vannarapettai, Tirunelveli.
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