Madras High CourtWP(MD)/8910/2024disposed of

Krishnan. A v. The Additional Chief Secretary To Government Of Tamil Nadu

2024-06-25Honourable Ms Justice R.N.Manjula18 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.06.2024

CORAM:

THE HONOURABLE MS.JUSTICE R.N.MANJULA and W.M.P(MD)Nos.8095, 8157, 8191, 9204 & 10286 of 2024 1.W.P(MD)No.8910 of 2024:

A.Krishnan ... Petitioner Vs.

1.The Additional Chief Secretary to Government of Tamil Nadu, Transport Department, Secretariat, Chennai - 09.

2.The Tamil Nadu State Transport Corporation (Madurai) Limited, Represented by its Managing Director, Madurai. 3.The General Manager, The Tamil Nadu State Transport Corporation (Madurai) Limited, Madurai Region, Madurai.

4.The Administrator, The Tamil Nadu Transport Corporation Employees Pension Fund Trust, Thiruvalluvar Illam, Pallavan Salai, Chennai - 02.

... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the 1/18

records pertaining to the impugned Government letter issued by the first respondent in Ref.No.2048/E1/2022-2 Transport (E1) Department, dated 17.02.2023 quash the same in so far as restricting the payment of revised pension prospectively and freezing rate of Dearness Allowance at present rates and in so far as not giving any direction to the second respondent to pay other terminal benefits to the petitioner including difference amounts in Gratuity, Leave Salary and commuted value of pension based on the revised salary payable to him as on the date of his retirement as per pay revision given under 14th wage revision settlement signed under Section 12(3) of the Industrial Disputes Act, dated 24.08.

2022 and consequently directing the respondents to pay the petitioner difference amounts in gratuity, leave salary, commuted value of pension and revised pension with arrears along with Dearness Allowance at the percentage of Dearness Allowance as fixed by the State Government to the in-service employees of the transport Corporation based on such wages payable to him as on the date of his retirement that is as on 30.11.2021 in terms of the above settlement along with interest at the rate of 6% per annum within a time frame fixed by this Court. For Petitioner : Mr.A.Rahul For Respondents : Mr.J.Ashok Additional Government Pleader for R.1 : Mr.K.Ramaiah Standing Counsel for R.2 & R.3 : Mr.S.C.Herold Singh for R.

2.W.P(MD)No.8972 of 2024:

R.Nagarajan ... Petitioner Vs.

1.The Additional Chief Secretary to Government of Tamil Nadu, Transport Department, Secretariat, Chennai - 09.

2.The Tamil Nadu State Transport Corporation (Madurai) Limited, Represented by its Managing Director, Madurai.

3.The General Manager, The Tamil Nadu State Transport Corporation (Madurai) Limited, Madurai Region, Madurai.

4.The Administrator, The Tamil Nadu Transport Corporation Employees Pension Fund Trust, Thiruvalluvar Illam, Pallavan Salai, Chennai - 02.

... 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 pertaining to the impugned Government letter issued by the first respondent in Ref.No.2048/E1/2022-2 Transport (E1) Department, dated 17.02.2023 quash the same in so far as restricting the payment of revised pension prospectively and freezing rate of Dearness Allowance at present rates and in so far as not giving any direction to the second respondent to pay other terminal benefits to the petitioner including difference amounts in Gratuity, Leave Salary and commuted 3/18

value of pension based on the revised salary payable to him as on the date of his retirement as per pay revision given under 14th wage revision settlement signed under Section 12(3) of the Industrial Disputes Act, dated 24.08.2022 and consequently directing the respondents to pay the petitioner difference amounts in gratuity, leave salary, commuted value of pension and revised pension with arrears along with Dearness Allowance at the percentage of Dearness Allowance as fixed by the State Government to the in-service employees of the transport Corporation based on such wages payable to him as on the date of his retirement that is as on 31.07.2022 in terms of the above settlement along with interest at the rate of 6% per annum within a time frame fixed by this Court. For Petitioner : Mr.A.Rahul For Respondents : Mr.S.Shanmugavel Additional Government Pleader for R.1 : Mr.K.Ramaiah Standing Counsel for R.2 & R.3 : Mr.S.C.Herold Singh for R.4 3.W.P(MD)No.9009 of 2024 :

P.Ramachandran ... Petitioner Vs.

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1.The Additional Chief Secretary to Government of Tamil Nadu, Transport Department, Secretariat, Chennai - 09.

2.The Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Represented by its Managing Director, Kumbakonam.

3.The General Manager, The Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Trichy Region, Trichy.

4.The Administrator, The Tamil Nadu Transport Corporation Employees Pension Fund Trust, Thiruvalluvar Illam, Pallavan Salai, Chennai - 02.

respondents to pay the petitioner difference amounts in gratuity, leave salary, commuted value of pension and revised pension with arrears along with Dearness Allowance at the percentage of Dearness Allowance as fixed by the State Government to the in-service employees of the transport Corporation based on such wages payable to him as on the date of his retirement that is as on 31.01.2020 in terms of the above settlement along with interest at the rate of 6% per annum within a time frame fixed by this Court. For Petitioner : Mr.A.Rahul For Respondents : Mr.J.Ashok Additional Government Pleader for R.1 : Mr.K.Jagadees Balan Standing Counsel for R.2 & R.3 : Mr.S.C.Herold Singh for R.4 4.W.P(MD)No.10208 of 2024:

S.Vembulu ... Petitioner Vs.

1.The Additional Chief Secretary to Government of Tamil Nadu, Transport Department, Secretariat, Chennai - 09.

2.The Managing Director, Tamil Nadu State Transport Corporation (Madurai) Limited, Bye-Pass Road, Madurai - 16.

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3.The General Manager, The Tamil Nadu State Transport Corporation (Madurai) Limited, Madurai Region, Bye-Pass Road, Madurai - 16.

4.The Administrator, The Tamil Nadu Transport Corporation Employees Pension Fund Trust, Thiruvalluvar Illam, Pallavan Salai, Chennai - 2.

... 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 connected with the impugned order passed by the first respondent in Letter No.2048/E1/2022-2, dated 17.02.2023 quash the same and consequently, direct the respondents to settle the difference in Pay, Pension and Pension Arrears, Commutation, Gratuity and Leave Salary as per the 14th 12(3) Settlement dated 24.08.2022 and in the light of the Judgment of this Court in W.P(MD)No.1060 of 2024 dated 04.03.2024 as per the revision of wages as on the date of retirement on 31.05.2022.

For Petitioner : Mr.S.Govindan For Respondents : Mr.S.C.Herold Singh for R.4 5.W.P(MD)No.11540 of 2024:

A.Paramathma ... Petitioner Vs.

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1.The Additional Chief Secretary to Government of Tamil Nadu, Transport Department, Secretariat, Chennai - 09.

2.The Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Represented by its Managing Director, Kumbakonam.

3.The General Manager, The Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Karaikudi Region, Karaikudi.

4.The Administrator, The Tamil Nadu Transport Corporation Employees Pension Fund Trust, Thiruvalluvar Illam, Pallavan Salai, Chennai - 02.

revision settlement signed under Section 12(3) of the Industrial Disputes Act, dated 24.08.2022 and consequently directing the respondents to pay the petitioner difference amounts in gratuity, leave salary, commuted value of pension and revised pension with arrears along with Dearness Allowance at the percentage of Dearness Allowance as fixed by the State Government to the in-service employees of the transport Corporation based on such wages payable to him as on the date of his retirement that is as on 31.03.2020 in terms of the above settlement along with interest at the rate of 6% per annum within a time frame fixed by this Court. For Petitioner : Mr.A.Rahul For Respondents : Mr.N.Ramesh Arumugam Government Advocate for R.1 : Mr.K.Jagadees Balan Standing Counsel for R.2 & R.3 : Mr.S.C.Herold Singh for R.4 COMMON ORDER Since the issue raised in these writ petitions is one and the same, these writ petitions are disposed of by way of this common order.

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2. Heard the learned counsel appearing on either side.

3. The impugned letter, dated 17.02.2023 obviously deprives the petitioners' right to refixation of their terminal benefits including Gratuity, Leave Salary, Commuted value of pension based on the revised salary, which was vested on them under clause 1 and 2 of the 14th wage revision settlement.

4. It is submitted by the learned counsel for the petitioner that the benefits settled under the 14th wage revision settlement. As a result of the collective bargaining between the representatives of the State Government, State owned transport undertakings and the various other trade unions, with full and matured deliberation, after taking into account of the interest of the employees, the interest of the Transport Corporation and the State, with a view to realize the goal of a living wage as envisaged under Article 43 of the Constitution and hence, unreasonable restriction of the same through the impugned letter will not stand the scrutiny of law and the same has to be quashed.

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5. During the implementation of the 13th wage revision settlement, the Government had issued directions through a Government Order in G.O.Ms.No.142 dated 26.08.2019, for implementing the revision of pension as per 7th Pay Commission to the pensioners with notional effect from 01.01.2016 and with monetary benefits prospectively, but freezing the dearness allowance at the present rate. The said G.O. was challenged by the pensioners by filing W.P.(MD)No.1147 of 2020 etc., batch and a learned Single Judge of this Court, by order, dated 02.03.2023, modified the aforesaid Government order with certain directions.

6. A Writ Appeal was preferred in W.A(MD)No.1240 of 2023 to challenge the order of the learned Single Judge. The Hon'ble Division Bench of this Court has held in the Writ Appeal through the Judgment, dated 13.09.2023 indicating that the executive instructions cannot supersede the extant rules and confirmed the order of the learned Single Judge. The relevant part of the Judgment in W.A.(MD)No.1240 of 2023, dated 13.09.2023 [The Administrator and others Vs. Pokkuvarathu Kazhaka Oyvu Petra Aluvalar Nala Sangam, Kovai and others] is extracted below: 11/18

'Once a particular decision of implementing the Revised Pay Rules, is implemented as such granting the benefits retrospectively, then at the time of carrying out of the same, it cannot proclaim one and restrict thereafter. In this regard, useful reference can be made to the Judgment of the Division Bench of this Court in Tamil Nadu Electricity Board and Another Vs. G.Sethuraman [Writ Appeal No. 3235 of 2004 dated 04.04.2005] and Paragraph Nos. 13 and 14 of the said Judgment are extracted hereunder:

"13. In an oft quoted passage in East End Dwelling Co. Ltd v. Finsbury Borough Council, (1951) 2 All.E.R 587, Lord Asquith observed : - "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs"

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The above observation has been quoted with approval by the Supreme Court in several decisions e.g. Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd., AIR 2003 SC 511 (para-33), C.W.T v. Trustees of H. E.H., (2003) 5 SCC 122 (para-20), Dipak Chandra Ruhidas v. Chandan Kumar Sarkar, (2003) 7 SCC 66 (para-12), etc.

14. In the present case, the legal fiction which has been created by order dated 7.6.1996 is that the writ petitioner is deemed to have been retrospectively promoted as Executive Engineer from 9.6.1988. Hence full effect must be given to this legal fiction, and for all purposes we have to treat it as if the writ petitioner had in fact been promoted as Class I officer from 9.6.1988, and our eyes should not boggle half way. For these reasons, we fully agree with the view taken by the learned single Judge in the impugned judgment."

Thus it can be seen that in the instant case also, after making a conscious decision implementing the order partly by way of Statutory Rule and partly by way of extending the benefit, at the final lap, the eyes of the Government had boggled. Therefore the same is impermissible.'

7. The Corporation challenged the order passed in the Writ Appeal by filing a SLP(C) before the Hon'ble Supreme Court in SLP(C) 13/18

No.27785 of 2023 and the Hon'ble Apex Court, by its order, dated 06.02.2024, dismissed the same. In the same manner, after having arrived at a settlement by signing the 14th wage revision settlement, the Government has issued the impugned Government letter, dated 17.02.2023, in similar lines to the modified G.O.Ms.No.142, dated 26.08.2019 and thereby directed the respondents to implement the revision of pension with notional effect from 01.09.2019 and with monetary benefits prospectively. The said Government Order has also freezed the dearness allowance at the present rate without any change.

8. Once a particular decision for revising the wages is taken and evolved into an agreement between the parties including the State, as such granting the benefits retrospectively, then at the time of implementing the same, it cannot make any partial denial by passing orders to restrict the benefits. A Government letter cannot over rule the extant rules, when the rules say that the employees are entitled to the benefits immediately after retirement. Hence, without any doubt and in view of the settled legal position, the employees who worked in the Transport Corporation and have retired between 01.09.2019 and 31.07.2022 are entitled to receive the revised monetary benefits from 14/18

the date on which the revised monetary benefits were agreed under the 14th wage revision settlement.

9. As the pension has also been revised under the terms of the 14th wage revision settlement and Rule 15 of the Tamil Nadu State Transport Corporation Employees Pension Fund Rules, the last drawn basic salary shall be the salary to be taken for calculating pensions. As the last drawn salary has been revised in terms of the 14th wage revision settlement, the impugned letter cannot restrict the benefits. The respondents are directed to revise the monetary benefits and the difference in the revised pension which is payable from the date on which the revised monetary benefits were given to the working employees under the 14th wage revision settlement.

10. Accordingly, these Writ Petitions are allowed to the extent indicated above by quashing the impugned letter, dated 17.02.2023 and the respondent Corporation is directed to pay the difference in the benefits in respect of Gratuity and Encashment of Leave salary, commuted value of pension and monthly pension with arrears from the date of retirement, as per wage settlement, dated 24.08.2022 along with dearness allowance. This amount shall be paid 15/18

within a period of six (6) months from the date of receipt of a copy of this order. The respondent Corporation has to make out the differential payment with interest at the rate of 6% per annum to be computed from the date of the petitioners' retirement till the date of payment. No costs. Consequently, connected Miscellaneous Petitions are closed. 25.06.2024 (1/2) NCC : Yes / No Index : Yes / No ps To 1.The Additional Chief Secretary to Government of Tamil Nadu, Transport Department, Secretariat, Chennai - 09.

4.The Administrator, The Tamil Nadu Transport Corporation Employees Pension Fund Trust, Thiruvalluvar Illam, Pallavan Salai, Chennai - 02.

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5.The Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Represented by its Managing Director, Kumbakonam.

6.The General Manager, The Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Trichy Region, Trichy.

7.The Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Represented by its Managing Director, Kumbakonam.

8.The General Manager, The Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Karaikudi Region, Karaikudi.

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R.N.MANJULA,J.

ps W.P(MD)Nos.8910, 8972, 9009, 10208 & 11540 of 2024 25.06.2024 (1/2) 18/18