Madras High Court
N.Kannan vs The Commissioner on 6 July, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 01.11.2018
Pronounced on: 18.01.2019
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
W.P.(MD) No.10396 of 2015
N.Kannan ... Petitioner
-vs-
1. The Commissioner,
Hindu Religious and Charitable Endowments Department,
Government of Tamil Nadu, Uthamar Gandhi Salai,
Nungambakkam High Road, Chennai-34.
2. The Assistant Commissioner,
Hindu Religious and Charitable Endowments Department,
Government of Tamil Nadu, Sachidhananda Mooppanar Salai,
Thanjavur-613 003.
3. The Managing Director,
Tamil Nadu State Construction Corporation Ltd.,
Jawaharlal Nehru Salai, Jai Nagar,
Inner Ring Road, Arumbakkam,
Chennai-600 106/
4. The Chief Engineer,
Highways & Rural Works and Minor Ports Department,
Chepauk, Chennai-600 005.
5. The State of Tamil Nadu,
Rep. by its Principal Secretary,
Hindu Religious and Charitable Endowments Department,
Secretariat, Fort St.George, Chennai. ... Respondents
(R5 impleaded by order of this Court dated 06.07.2015)
Prayer: Petition filed under Article 226 of the Constitution of India, praying
for the issuance of a Writ of Mandamus, directing the respondents 1 to 4 to
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2
pay all the retirement benefits, including gratuity, leave encashment
benefit for 229 days earned leave and for 90 days of unearned leave as per
the orders issued by the Commissioner, H.R.&C.E., Chennai.
For Petitioner : Mr.R.Narayanan
For M/s.T.Banumathy
For R1, R2 & R5 : Mr.K.Mu.Muthu
Addl. Govt. Pleader
For R3 : No Appearance
For R4 : Mr.R.Sethu Raman
Spl. Govt. Pleader
Amicus Curiae : Mr.D.Sivaraman
*****
ORDER
This petition has been filed, seeking a direction to the respondents 1 to 4 to pay all the retirement benefits, including gratuity, leave encashment benefit for 229 days earned leave and for 90 days of unearned leave as per the orders issued by the Commissioner, H.R.&C.E., Chennai. Brief Facts:
2. The case of the petitioner was that he was initially appointed as Junior Assistant on 01.07.1984 in the Tamil Nadu State Construction Corporation Ltd., Chennai, a Public Sector Undertaking and after completion of his probation period, he was promoted as Assistant Grade on 14.05.2003 and thereafter, upgraded to the post of Selection Grade Assistant. His pay was fixed in the pay scale of Rs.5000-150-8000 and subsequently, he was deputed to H.R.&C.E.Department by the orders of the 1st respondent dated 09.12.2005, consequent to which, he was relieved on http://www.judis.nic.in 3 29.12.2005. He joined in the H.R.&C.E. Department at Thanjavur on 06.01.2006 after availing the joining time from 30.12.2005 to 05.01.2006 and the duty pay for the interim period of joining time was also paid to him.
2.1. It was the further case of the petitioner that since he had rendered continuous service without any break in service, the entire period of 26 years has to be taken into consideration for the purpose of pension and other benefits. Since he was absorbed as a permanent employee with the respondents 1 and 2, the benefits applicable to the employees working under them would also be applicable to him. As per the terms and conditions laid down in G.O.Ms.No.172 dated 01.07.2009, issued by the Secretary, Tamil Development, HR&CE and Information Departments, Government of Tamil Nadu Chennai, the employees, who were transferred from Government undertakings to HR&CE Department on deputation basis and subsequently, absorbed permanently in HR&CE Department are governed by the rules and regulations applicable to the Government employees of Tamil Nadu and as per Para 3(v), pay protection alone will be admissible and further promotions cannot be claimed with reference to previous service.
http://www.judis.nic.in 4 2.2.It was submitted that as per G.O.Ms.No.27 Finance (PBE) Department dated 24.01.2007 “the employees of State Public Sector Undertakings / Co-operative working on deputation / Contract with other State Public Sector Undertakings / Government Undertakings may be considered for permanent absorption, only after they completed two years of service in foreign body and pay protection alone will be given as per Para 3(v)”. Therefore, on his permanent absorption in the 1st and 2nd respondents' Department with effect from 29.12.2007 on completion of 2 years of regular and continuous service in the 1st and 2nd respondents Department, he became eligible for all the privileges as stipulated in the G.O.Ms.No.172 dated 01.07.2009.
2.3. It was further submitted that there was a stipulation in the Government Order in Para 2(ix) that the employees, on absorption, should clear the department tests, otherwise further increments will not be paid. Since the said Government Order was issued just prior to one year and three months of his retirement period, he had sent several representation to the respondents for exempting him from the departmental examination on account of efflux time. However, his request was not considered and no increment was sanctioned for the service rendered by him, as a result of which, he incurred huge monetary loss. Consequent to his absorption in the 2nd respondent's office, his Service Register was handed over to the 2nd http://www.judis.nic.in 5 respondent's office, which was originally maintained by his parent department.
2.4. It was the grievance of the petitioner that though he had earned leave of 229 days and unearned leave of 90 days to his credit, it was informed by the 1st respondent that the orders for payment of gratuity for the entire period of service are awaited from the Government and hence, there was no objection or impediment to disburse the leave encashment payment for the leave days at credit on the date of superannuation. However, till date, he has not been paid any amount towards the gratuity for the entire period of service of 26 years and therefore, it was prayed that on the basis of his representation dated 10.03.2014, the payment of leave encashment of earned leave for 229 days and unearned leave on private affairs for 90 days are to be paid.
3. The 1st respondent has filed a counter affidavit, wherein it has been inter alia stated as follows:
i) the Government Order in G.O.Ms.No.27 Finance (BPE) Department dated 24.01.2007 was issued with regard to absorption, subject to fulfillment of ten conditions therein and since Tamil Nadu State Construction Corporation Limited was wound up, the petitioner was http://www.judis.nic.in 6 permitted to work under the 1st respondent Department on contract basis.
Though he had worked as Selection Grade Assistant in the 3rd respondent Department, he was relieved to join the 1st respondent on contract basis only and the petitioner also joined as Assistant on 06.01.2006 in the 2nd respondent Office.
ii) the petitioner, on completion of 3 years and 7 months of service on contract basis in the 1st respondent Department, he was absorbed as a permanent employee and thereafter, he attained superannuation on 30.11.2010. The petitioner was deputed from the Corporation and was appointed in the HR&CE Department, subject to the conditions laid down in G.O.Ms.No.27 dated 24.01.2007, as per which, he is entitled to pay protection only and not other service benefits. Since the petitioner has been appointed in the 2nd respondent office on the basis of the said Government Order, the prayer of the petitioner cannot be considered and it is liable to be brushed aside and the petition is to be dismissed in limine.
4. The 2nd respondent has also filed a counter affidavit, reiterating the very same stand urged by the 1st respondent.
5. As there was no assistance from the learned counsel for the http://www.judis.nic.in 7 petitioner till the last date hearing of this matter, this Court had appointed Mr.D.Sivaraman, learned counsel as Amicus Curiae to assist the Court, who has submitted that if any deduction has been made towards the employee's contribution for EPF and the same was transferred to the third respondent / TNSCC by HR&CE as alleged by the petitioner, then the third respondent is accountable for the same, but unfortunately, the third respondent has not filed any counter affidavit. The 4th respondent has clearly stated that if EPF contribution from 01.03.2006 till the retirement is paid by the original employer / TNSCC along with applicable damages under Section 14(B) of EPF Act and interest under Section 7(Q) of the Act, his pension will be revised. He has further submitted that in case it was found that the EPF contribution was duly deducted by HR&CE and transferred to TNSCC, which in turn failed to remit the same in his account, then this Court is empowered to issue suitable direction to pay the contribution along with damages and interest, though the petitioner has not sought for such relief. He has also submitted that as per order dated 01.07.2009, the petitioner was directed to be included under CPF scheme, the petitioner is not entitled for such direction, if any deductions were made by HR&CE under CPF contribution and he would be entitled to eligible benefits under the CPF scheme.
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6. Learned counsel for the petitioner, by filing a reply affidavit has strenuously contended that since the petitioner attained superannuation as Government employee of 1st respondent, he is entitled to all the benefits, including leave salary encashment, as applicable to other Government employees. The Government Order in G.O.Ms.No.27 Finance (BPE) Department dated 24.01.2007 was misunderstood by the respondents, as it clearly states that it was issued only in respect of promotion and selection grade appointments of absorbed employees and the same cannot be relied upon by the respondents for denying the benefits to the petitioner. He has further contended that similarly placed employees of the third respondent, namely, D.Rajendran and C.Amutha Devi, who were absorbed in Tamilnadu Backward Classes Economic Development Corporation, were granted all service benefits in accordance with the Government Orders and since there was a discrimination on the part of the respondents in settling the benefits accrued to the petitioner, the petitioner is entitled to the direction sought for in this writ petition.
7. Per contra, learned Special Government Pleader appearing for R4 and the learned Additional Government Pleader appearing for R1, R2 and R5 have chorusly stated that since the petitioner was appointed by the 1st respondent on contract basis pursuant to the winding up the third http://www.judis.nic.in 9 respondent, he would be entitled to pay protection alone and he would not be eligible to other service rights, as claimed by him. Therefore, it was vehemently argued that this petition is liable to be dismissed.
8. Heard the learned counsel for the petitioner, learned Special Government Pleader appearing for R4, learned Additional Government Pleader appearing for R1, R2 and R5 and also the learned Amicus Curiae. There was no representation for R3. This Court also perused the material documents available on record.
9. On a careful scrutiny of the entire averments raised by the petitioner, it is seen that he was initially appointed as Junior Assistant on 01.07.1984 in the office of the 3rd respondent / Tamil Nadu State Construction Corporation Ltd., (in short “TNSCC”) Chennai, a Public Sector Undertaking and after completion of his probation period, he was promoted as Assistant Grade on 14.05.2003 and thereafter, upgraded to the post of Selection Grade Assistant. His pay was fixed in the pay scale of Rs. 5000-150-8000 and subsequently, he was deputed to H.R.&C.E. Department by the orders of the 1st respondent dated 09.12.2005, consequent to which, he was relieved on 29.12.2005. He joined the H.R.&C.E. Department at Thanjavur on 06.01.2006 and was later absorbed therein. It was his case http://www.judis.nic.in 10 that since he had rendered continuous service without any break in service, the entire period of 26 years has to be taken into consideration for the purpose of pension and other benefits, applicable to other employees working under the respondents 1 and 2. In support of his submission, he has also relied upon various Government Orders in G.O.Ms.No.172 dated 01.07.2009, issued by the Secretary, Tamil Development, HR&CE and Information Departments, Government of Tamil Nadu Chennai and G.O.Ms.No.27 Finance (PBE) Department dated 24.01.2007.
10. The petitioner also drew the attention of this Court to the letter sent by 1st respondent to the 2nd respondent in Na.Ka.No. 5075/2007/B.3 dated 23.05.2011, in which, the 1st respondent had observed that insofar as the petitioner is concerned, since he had already attained superannuation, the question of hike in salary does not arise at all and therefore, there is no impediment for the 2nd respondent to release other terminal benefits due to him. Further, in terms of G.O.Ms.No.300 dated 15.12.2008, some of the employees, who have been deputed from TNSCC to the State Human Rights Commission have been duly absorbed and their services have also been regularized and they were extended pensionary benefits too, as they were governed by the old pension scheme. Since the case of similarly placed persons was considered favourably, the deprivation http://www.judis.nic.in 11 of rights of the petitioner cannot be sustainable. It is worthwhile to refer to a judgment of the Hon'ble Supreme Court in the case of Dakshin Haryana Bijli Vitran Nigam and others vs. Bachan Singh, reported in (2009) 14 SCC 793, wherein it has been held as follows:
“20. This court time and again had observed that the principle underlying the guarantee of Article 14 of the Constitution is that all persons similarly placed shall be treated alike, both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation without any discrimination.
21. In E.P. Royappa v. State of Tamil Nadu & Anr. (1974) 4 SCC 3, this court observed as under:-
"From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
22. In Mrs. Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248, this court observed as under:-
"Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. .........Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding http://www.judis.nic.in 12 omnipresence."
23. In D.S. Nakara & Ors. v. Union of India (1983) 1 SCC 305, this court observed as under:-
"The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare state will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate if to the objects sought to be achieved."
24. In Ajay Hasia & Others .v. Khalid Mujib Sehravardi & Others (1981) 1 SCC 722 this court observed as under:-
"That is must, therefore, now be taken to be well settled that what Article 14 strikes at is arbitrariness http://www.judis.nic.in 13 because any action that is arbitrary must necessarily involve negation of equality. The court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law, and is, therefore, violative of Article 14."
25. In Ramana Dayaram Shetty v. International Airport Authority of India & Ors. (1979) 3 SCC 489 again this court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
26. In view of the law as has been articulated in a large number of cases where this court has observed that any discriminatory action on the part of the Government would be liable to be struck down. Hence, in this case, it would be totally unreasonable and irrational to deny the respondent the pensionary benefits under the scheme particularly when the appellants have failed to produce any record showing that the instructions dated 6.8.1993 and 9.8.1994 were actually got noted in writing by the respondent. In the absence of any such material it can well be inferred that the respondent had no knowledge about the options called by the appellants.
27. In our considered opinion, the view taken by the Division Bench of the High Court in the impugned judgment is indeed a rational, just and fair view and no interference is called for.
28. These appeals are devoid of any merit and are accordingly dismissed leaving the parties to bear their own costs.”
11. Though it was stated across the bar that TNSCC was wound up, as on date, there is no evidence regarding initiation of winding up proceedings. Even otherwise, in the light of Section 529-A of the Companies Act, all sums due to any workman from a provident fund, a pension fund, a http://www.judis.nic.in 14 gratuity fund or any other fund for the welfare of the workmen, maintained by the company shall be paid to him.
12. A bare reading of G.O.No.284 dated 31.03.1980 issued by the Government, relating to pension, gratuity, Provident Fund, Earned Leave, Family Pension and Commutation of Pension in respect of Government Employees, who opt for permanent absorption in the State- Owned Corporations and Boards, would reveal that the Government employees, who opt for services in the State-Owned Corporations/Statutory Boards were granted benefits accrued thereon and the entire amount has been transferred after obtaining due willingness from them, but in the present case on hand, persons like the petitioner have been transferred by the Government and therefore, benefits already accrued to them cannot be refused to be granted. Since the petitioner did not have the option of getting pension, except CPF, it is not fair on the part of the State to deprive his rights, who had been deputed by the Government to HR&CE from TNSCC, which would definitely amount to discrimination and having two sets of service conditions to employees working under the same roof is highly arbitrary in nature, as Article 43 of Constitution of India deals with the topic of Living wage, etc., for workers and it in incumbent upon the State to endeavour to secure living wage, conditions of work ensuring a http://www.judis.nic.in 15 decent standard of life and full enjoyment of leisure and social and cultural opportunities.
13. In G.O.Ms.No.154 (Handlooms, Handicrafts, Textiles and Khadi (F2) Department dated 21.11.2009 and G.O.Ms.No.125 (Handlooms, Handicrafts, Textiles and Khadi (F1) Department dated 02.09.2010, referred to by the petitioner, especially Clause No.8, it was stipulated that the employees, who were deputed from the said Department to other State- Owned Corporations and Boards, would be entitled to pay protection alone and they are not entitled to any service protection. However, in the subsequent Government Order in G.O.Ms.No.152 (Handlooms, Handicrafts, Textiles and Khadi (F1) Department dated 12.07.2012 in Paragraph No.4, the said clause was modified so as to read that the deputed employees would be entitled to service protection. For better understanding, the modified clause is extracted here-under:
“4. jkpH;ehL fjh; fpuhkj; bjhHpy; thhpa
jiyikr; bray; mYtyhpd; braw;Fwpg;gpid muR
ed;F ghprPyid bra;jJ/ nkYk; khz;g[kpF mikr;rh; (fjh; kw;Wk; fpuhk bjhHpy;fs;) mth;fspd; nkw;fz;l mwptpg;gpw;fpz';f. jkpH;ehL fjh; fpuhkj; bjhHpy;
thhpag; gzpahsh;fs; gpw Jiwfspy;
gzpakh;j;jg;gLk;nghJ mth;fs; jkpH;ehL fjh; fpuhkj; bjhHpy; thhpaj;jpy; gzpg[hpe;j fhy';fis mth;fs; gzpakh;j;jg;gl;l Jiwfspy; Xa;t[{jpag; gad;fSf;F fzf;fpy; vLj;Jf;bfhs;syhk; vd;w tifapy;. Vw;fdnt murpdhy; gpwj;Jiwfspy; gzpakh;j;jg;gLtjw;fhf btspaplg;gl;l nkny xd;wpy; gof;fg;gl;l muR Mizapd;
gj;jp 2 tHpKiw 8?f;Fk; kw;Wk; nkny ,uz;oy;
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16
gof;fg;gl;l muR Mizapd; gj;jp 3 tHpKiw 8?f;Fk;
eilKiwapy; cs;s Xa;t{jpa tpjpfSf;F vt;tpj Fe;jfKkpd;wp gpd;tUk; jpUj;jj;ij nkw;bfhs;syhk; vd muR Kot[ bra;J mt;thnw MizapLfpwJ/ ““jkpH;ehL fjh; fpuhkj; bjhHpy;
thhpaj;jpypUe;J gpwJiwfs;-bghJj;Jiw
epWtd';fs;-jd;dhl;rp chpik bgw;w
epWtd';fs; kw;Wk; FGk';fspy;
<h;j;Jf;bfhs;sg;gLk; CHpah;fSf;F rk;gs
ghJfhg;g[ mspg;gJld; (Pay Protection)
mth;fSf;F gzpg;ghJfhg;g[k; (Service
Protection) mspf;fyhk;/ nkYk;. mg;gzpahsh;fs;
thhpaj;jpy; gzpahw;wpa gzpf;fhyj;ij
ghJfhf;Fk; tifapy; thhpag;
gzpf;fhy';fis mth;fs; gzpg[hpa[k; Jiwapd;
gzpf;fhyj;Jld; nrh;j;J Xa;t{jpag;
gad;fSf;F fzf;fpl;Lf; bfhs;syhk;/ nkYk;.
mg;gzpahsh;fs; Xa;t[ bgWk;nghJ
gzpakh;j;jg;gl;l muRJiwfns Xa;t{jpag;
gad;fis bjhFg;g[ epjpapypUe;J tH';fyhk;/”
(in translation)
“4. Upon consideration of the proceedings of the Chief Executive Officer, Tamil Nadu Khadi & Village Industries Board and based on the announcement of the Hon'ble Minister (Khadi and Village Industries), the period of service rendered by employees, who had worked in Khadi and Village Industries and were subsequently deputed to other departments shall be reckoned for the purpose of retiral benefits and the Government has decided to modify the Government Orders already issued under reference-I at Paragraph No.2 and Clause No.8 and under reference-II at Paragraph No.3 and Clause No. 8 without affecting the existing pensionary rules as under:
“The employees, who were deputed from Tamil Nadu Khadi and Village Industries and absorbed in other Departments / Public Sector Undertakings/Autonomous Undertakings would not only be entitled to Pay Protection, but also Service Protection and the period of service earned in Khadi Board shall be counted along with http://www.judis.nic.in 17 the period earned in the present Departments for the purpose of extension of retiral benefits. The retiral benefits applicable to those employees shall be paid from the consolidated funds of that Departments itself.” A reading of the above Government Order would amply prove the fact that the employees, who have been deployed from Khaid Board and absorbed in other State-Owned Corporations and Boards were granted both pay as well as service protections, whereas the persons like the petitioner were denied such amenities. It is pertinent to mention here that there cannot be two sets of service conditions under one roof and the benefits already accrued cannot be withdrawn in an arbitrary manner, as the benefits accrued by means of earned wages, PF, gratuity, etc are all property within the meaning of Article 300-A of the Constitution of India, which cannot be deprived except in accordance with law.
14. The Hon'ble Supreme Court, while dealing with the service conditions applicable to employees under Standing Orders in the case of Agra Electric Supply Co. Ltd., vs. Sri Alladin and others, reported in 1970 AIR 512, had observed as follows:
“The consequence of holding that the company is barred by principles analogous to res judicata would be that there would be two sets of conditions of service, one for those previously employed and the other for those employed after http://www.judis.nic.in 18 the standing orders were certified, a consequence wholly incompatible with the object and policy of the Act. The very basis of the award in Ref. 91 of 1964, namely, the wrong understanding of the decision in Guest, Keen, Williams Private Ltd.(5), having gone, it becomes all the more difficult and undesirable to perpetuate the distinction made therein between those who were previously appointed and those appointed subsequently and to refuse on such an untenable distinction relief to the company.” If the above judgment is applied to the present case on hand, the persons like the petitioner are also entitled to the benefits, which were extended to employees deputed from Khadi, etc., and there should not be any discrimination between the employees working under one roof and the Government is bound to extend the same benefits to the persons like the petitioner by issuing appropriate Government Order. Say for example, if the petitioner has been deputed from Khadi Board instead of TNSCC to HR&CE Department, then he would have had the benefit of the above Government Order and the case of other employees would be otherwise. The purpose of deputation and absorption must ensure that the services rendered earlier are protected and such benefits are given to the employees for the services rendered, except the gratuity, PF and CPF (unless they are governed by Pension Rules that existed previously and applicable to them).
15. It is pertinent to mention here that the order dated http://www.judis.nic.in 19 02.09.2010 came to be issued only in respect of employees working under Handlooms, Handicrafts, Textiles and Khadi Department and subsequently, deputed to various other Boards. However, a close perusal of the Government Order in G.O.Ms.No.675 Finance (Bureau of Public Enterprises) Department dated 22.09.1993, more particularly Sub-Clause (V) of Clause 3, which deals with employees, like the petitioner, deputed to another State Public Sector Undertaking or appointed on Contract in a Government Department before closure of the parent undertaking, would disclose the fact that the persons like the petitioner will be entitled to pay protection and their names will not be considered for only two categories, namely, for promotion, selection grade appointments etc, as rightly pointed out by the learned Additional Government Pleader 1, 2 and 5. Thus, it is vividly clear that except these two, other benefits could not be deprived and such being the case, the Government must ensure that the benefits due to the petitioner and other similarly persons (who are not before this Court) are paid without further delay.
16. To be more specific and brief, the Government Order dated 22.09.1993 stipulates that if the employees are transferred from TNSCC to State-Owned Corporations and Boards, on absorption, all the benefits due to employees shall be remitted by the previous employer to the new http://www.judis.nic.in 20 employer and the new employer is expected to sanction / grant those benefits accrued under the previous employer to the newly inducted employees. Since TNSCC, HR&CE, State-Owned Corporations and Boards are State within Article 12 of the Constitution of India, there cannot be any discrimination with regard to grant of service benefits to the persons like the petitioner in view of the fact that similarly placed employees, who were deputed to Tamil Nadu Human Rights Commission were granted benefits by G.O.Ms.No.300 dated 15.12.2008.
17. If an employee commits moral turpitude, the terminal benefits and gratuity could be deprived, but not the wages already earned by that employee for the services rendered. If the contention of the respondents that except pay protection, the petitioner is not entitled to any other monetary benefits, is accepted, it would amount to not only depriving his rights, but also placing that employee, who had not committed any misconduct on par with the employee, who had committed misconduct.
18. In view of what is stated herein-above, this Writ Petition is allowed and since TNSCC and HR&CE Department fall within the meaning of State and it is only an adjustment from one wing to another wing to be made by the Government, the 5th respondent is directed to settle the entire http://www.judis.nic.in 21 service benefits together with 12% interest per annum to all persons, including the petitioner, within a period of 30 days from the date of receipt of a copy of this order and thereafter, get it reimbursed from TNSCC;
19. This Court places on record its appreciation to Mr.D.Sivaraman, learned counsel, who was appointed as Amicus Curiae by this Court, for rendering his valuable assistance to this Court for disposal of this Writ Petition as well as W.P.(MD) No.1380 of 2015 and a sum of Rs.
30,000/- is fixed as renumeration to the Amicus Curiae payable by each of the respondents 1, 3 and 4, i.e. each of the respondents 1, 3 and 4 shall pay Rs.10,000/- totalling Rs.30,000/- to the Amicus Curiae within a period of four weeks from the date of receipt of a copy of this order. No costs.
Post on 15.03.2019 for reporting compliance.
.01.2019 Index: Yes / No Internet: Yes / No ar Note: Registry is directed to mark a copy of this order to The Regional Provident Fund Commissioner-II, Employees Provident Fund Organization, R-40 A, TNHB Office Complex, Mugappair (East), Chennai-600 037.
Issue order copy on 28.01.2019 http://www.judis.nic.in 22 S.VAIDYANATHAN.J., ar To:
1. The Commissioner, Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu, Uthamar Gandhi Salai, Nungambakkam High Road, Chennai-34.
2. The Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu, Sachidhananda Mooppanar Salai, Thanjavur-613 003.
3. The Managing Director, Tamil Nadu State Construction Corporation Ltd., Jawaharlal Nehru Salai, Jai Nagar, Inner Ring Road, Arumbakkam, Chennai-600 106/
4. The Chief Engineer, Highways & Rural Works and Minor Ports Department, Chepauk, Chennai-600 005.
5. The Principal Secretary, State of Tamil Nadu, Hindu Religious and Charitable Endowments Department, Secretariat, Fort St.George, Chennai.
PRE-DELIVERY ORDER IN W.P.(MD) No.10396 of 2015 18.01.2019 http://www.judis.nic.in