Madras High Court
P.S.Sundaravadivelu vs Government Of Tamil Nadu on 9 January, 2015
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.01.2015
DATE OF DECISION : 09.01.2015
CORAM
THE HON'BLE MR.JUSTICE SATISH K. AGNIHOTRI
AND
THE HON'BLE MR.JUSTICE M.VENUGOPAL
W.A.No.842 of 2014
P.S.Sundaravadivelu .. Appellant
Vs.
1.Government of Tamil Nadu,
represented by its Secretary,
Transport Department,
Fort St. George,
Chennai-600 009.
2.Metropolitan Transport Corporation
(Chennai) Limited,
represented by its Managing Director,
Pallavan House,
Pallavan Salai,
Chennai-600 002. .. Respondents
The writ appeal is preferred under Clause 15 of Letters Patent against the order dated 05.12.2013 made in W.P.No.21105 of 2008.
For Appellant : Mr.S.Sadasharam
For Respondents : Mr.P.S.Sivashanmughasundaram,
Spl.G.P. for R-1
Mr.P.Paramasivadoss for R-2
- - - - -
JUDGMENT
SATISH K. AGNIHOTRI, J.
Challenge in this intra-court appeal is to the order dated 05.12.2013 made in W.P.No.21105 of 2008, wherein and whereunder, the writ petition seeking direction to the first respondent to sanction pension for the Government service put in by the petitioner between 01.07.1969 and 01.04.1982 and further to pay arrears of pension from 01.01.1988, was rejected.
2. The facts in nutshell as projected by the petitioner before the writ court are that the petitioner joined the services of Heavy Vehicle driver in the Civil Supplies Department of the Government of Tamil Nadu on 1.7.1969. The same was confirmed by order dated 23.10.1971. Thereafter, on deputation, the petitioner was sent to the Pallavan Transport Corporation Limited on 14.2.1972. By G.O.Ms.No.1028 dated 23.09.1985, the petitioner was granted gratuity in the year 1986 for the government services rendered by him. Pursuant to the scheme for permanent absorption in the said transport corporation, as per the provisions of G.O.Ms.No.378 dated 18.04.1975, the petitioner opted for the same. According to him, he was absorbed as an employee of the said Corporation with effect from 01.05.1975. Continuing in the same position, the petitioner sought voluntary retirement on 31.4.1996 under voluntary retirement scheme.
3. The Supreme Court, in the matter of The Government of Tamilnadu and others Vs. M.Ananchu Asari and others [Civil Appeal Nos.1444-1445 of 1999] and other connected civil appeal, vide judgment dated 29.10.2003 directed the cut off date as 01.04.1982 in modification of the date as prescribed in G.O.Ms.No.1028 dated 23.09.1985 and G.O.Ms.No.250 dated 18.11.1996.
4. The learned counsel appearing for the petitioner submitted that in view of the cut off date fixed by the Supreme Court in the identically situated employees, the petitioner is entitled to grant of pension as he had put in more than 10 years of government service with effect from 1.7.1969 to 01.04.1982.
5. The case of the State respondent before the writ court was that the Government of Tamil Nadu in its G.O.Ms.No.1028 granted terminal benefits to all erstwhile government transport department employees permanently absorbed in the State Transport Undertakings. As per Rule 43(2) of the Tamil Nadu Pension Rules, one should have completed 10 years of net qualifying service in the Government as on the date of his permanent absorption in the Transport corporation to become eligible for pension. Employees, who had put in 10 years of government service and above as on 01.05.1975 and 15.09.1975, were sanctioned pension as per G.O.Ms.No.1028.
6. The Supreme Court in its judgment and order dated 29.10.2003 directed that 01.04.1982 be adopted as cut off date for the purpose of assessing the requisite length of service and further directed the employees who have retired, shall get the arrears of pension only from 1.1.1988. It was further contended that the cut off date as 01.04.1982 was fixed in respect of the erstwhile Tamil Nadu State Transport Department employees, who had put in less than 10 years of government service as on their permanent absorption in the State Transport Undertakings for the limited purpose of assessing the requisite length of qualifying service of 10 years for the purpose of grant of pension. The petitioner was not an employee of the State Transport Department to have the benefit of aforestated G.O., as he was appointed in the Civil Supplies Department as a driver and thereafter appointed in the Pallavan Transport Corporation Limited on 21.2.1972 and as such, the petitioner is not entitled to the benefit of the said G.O and also the order passed by the Supreme Court in The Government of Tamilnadu and others Vs. M.Ananchu Asari and others (supra). The petitioner had put only four years in the Government department, i.e., Civil Supplies Corporation. However, the petitioner has put in 24 years of qualifying service in the respondent Corporation and he would be eligible only for family pension.
7. The learned writ court, after having examined the case and also having considered the rival contentions advanced by the learned counsel appearing for the parties, held that the petitioner was not entitled to the benefit of the said G.O., as he was the employee of the Civil Supplies Department and after he got transferred on deputation to the Pallavan Transport Corporation Limited, he became the permanent staff of the Pallavan Transport Corporation Limited. He had also tendered his resignation under the Voluntary Retirement Scheme as on 30.04.1996. All his service benefits have been settled, however, it was observed that if any service benefits remained due, the same shall be settled and disbursed.
8. The learned counsel appearing for the appellant reiterates the same submissions before us. This Court heard the learned counsel appearing for the respondents also.
9. Indisputably, the appellant was appointed as driver in the Pallavan Transport Corporation on deputation. Thereafter, he was absorbed in the said post. G.O.Ms.No.1028 contemplates grant of pension, gratuity, provident fund, earned leave, family pension and commutation of pension in respect of employees of Tamil Nadu State Transport Department, which was wound up with effect from 14.9.1975 and thereafter employees were absorbed permanently in the various Transport Corporations based on the option exercised by the said employees. Thus, the benefit of cut off date granted by the Supreme Court in The Government of Tamilnadu and others Vs. M.Ananchu Asari and others (supra), is available only to those employees who are governed under G.O.Ms.No.1028. The Review, thereafter, preferred against the said judgment was dismissed on 01.02.2005 in Review Petition Civil Nos.648-649 of 2004 in Civil Appeal Nos.1444-1445 of 1999.
10. It is a trite law that the law laid down by the Courts must be understood and appreciated in the backdrop of the question of law and facts involved in the case. (See : ICICI Bank Vs. Municipal Corporation of Greater Bombay1, Commissioner of Customs (Port) Vs. Toyota Kirloskar Motor (P) Ltd.2 and Subramanian Swamy Vs. State of Tamil Nadu3).
11. The issue before the Supreme Court in the The Government of Tamilnadu and others Vs. M.Ananchu Asari and others (supra) was as to whether the cut off date fixed by the Government for the purpose of entitlement to pension for the erstwhile Transport department employees, who were absorbed in the Transport Corporation, was constitutionally valid, which was negatived by the High Court and a direction was issued by the High Court for fixation of cut off date afresh in the light of the observations made therein. In that view of the matter, the Supreme Court fixed the cut off date as on 1.4.1982 for the transport department employees who were later on absorbed in the transport corporation.
12. In pursuance thereof, the respondent State issued G.O.Ms.No.42, Transport (RW) Department dated 27.05.2005, wherein it was clearly provided as under :
The erstwhile Tamil Nadu State Transport Department was wound up with effect from 14.9.75 and all its employees were absorbed permanently in the various Transport Corporations. At the time of permanent absorption an agreement was entered with these employees under Section 18(1) of the Industrial Disputes Act, 1947 and according to this all the erstwhile employees were treated to have joined the Corporation service with effect from 1.5.1975 in respect of all State Transport Undertakings except State Express Transport Corporation (Tamil Nadu) Limited and 15.9.75 for State Express Transport Corporation (Tamil Nadu) Limited and that they ceased to be Government Servants.
* * * * * * * * *
5......The fixation of pension and payment of arrears shall be done accordingly as ordered by the Hon'ble Supreme Court of India as per the rules and Government Orders applicable to them in the following manner :-
a)The erstwhile Tamil Nadu State Transport Department employees who were absorbed in Tamil Nadu State Transport Corporations and retired before 1.1.1988 or after 1.1.1988 but before 1.9.1998 be paid pension if they had put in the qualifying service of 10 years as on 1.4.1982. Period of Daily paid services, leave on loss of pay and suspension treated as specific punishment should be excluded while arriving the net qualifying service.
b)As per the clause 2(p)(ii) & clause 14(b) of the Tamil Nadu State Transport Corporation Employees Pension Fund Rules issued in G.O. fourth read above and with reference to Rule 7 of the Tamil Nadu Pension Rules the erstwhile Tamil Nadu State Transport Department employees who were absorbed in Tamil Nadu State Transport Corporations and retired after 1.9.98 be paid pension as per the Pension Scheme of the State Transport Corporations brought into force by the settlement under section 12(3) of the Industrial Disputes Act, 1947 and they are not eligible for the second pension as per the G.O. third read above.
13. Thus, a bare perusal of the judgment of the Supreme Court and also the consequential G.O., thereafter, issued by the respondent Government, clearly indicate that the G.O was applicable only to the transport department employees who were absorbed on dissolution of the department in the State Transport Corporation.
14. There is one more issue which needs to be considered. The applicability of the G.O.Ms.No.42 was clear. The petitioner has not questioned the legality of the applicability of the said G.O to only those employees, who have come from the transport department on dissolution by way of absorption in the corporation, at any stage of time. Thereafter, after a period of about three years, the petitioner by this writ petition seeks the benefit under the said G.O, on the basis of the judgment passed by the Supreme Court in The Government of Tamilnadu and others Vs. M.Ananchu Asari and others (supra), to which the petitioner is not entitled to.
15. Having considered all aspects of the matter, we are of the considered opinion that the order passed by the learned Single Judge cannot be flawed and deserves to be upheld. We, accordingly, dismiss the writ appeal. Costs made easy.
(S.K.A., J.) (M.V., J.)
09.01.2015
Index : Yes
vvk
To
1.The Secretary,
Government of Tamil Nadu,
Transport Department,
Fort St. George,
Chennai-600 009.
2.The Managing Director,
Metropolitan Transport Corporation
(Chennai) Limited,
Pallavan House,
Pallavan Salai,
Chennai-600 002.
SATISH K. AGNIHOTRI, J.
and
M.VENUGOPAL, J.
vvk
JUDGMENT IN
W.A.No.842 of 2014
09.01.2015