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Madras High CourtWP(MD)/19921/2017allowed

S.Chorimuthu, v. The Government Of Tamil Nadu,

2018-01-24Honourable Mr Justice G.R.Swaminathan6 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 24.01.2018 CORAM :

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN W.P(MD)No.19921, 20616 to 20624 of 2017 and WP(MD)Nos.20672 to 20675 of 2017 S.Chorimuthu .... Petitioner in W.P(MD).No.19921/2017 I.Mariadass .... Petitioner in W.P(MD).No.20616/2017 P.Ananchaperumal .... Petitioner in W.P(MD).No.20617/2017 E.Krishnaswamy Naidu .... Petitioner in W.P(MD).No.20618/2017 S.Ananthakrishnan .... Petitioner in W.P(MD).No.20619/2017 M.Subbaiah .... Petitioner in W.P(MD).No.20620/2017 D.Murugesa Pillai .... Petitioner in W.P(MD).No.20621/2017 M.Nadarajan .... Petitioner in W.P(MD).No.20622/2017 V.Ganesa Pillai .... Petitioner in W.P(MD).No.20623/2017 S.Bahuleyan Nair .... Petitioner in W.P(MD).No.20624/2017 P.Ramachandran .... Petitioner in W.P(MD).No.20672/2017 S.Gangadharan .... Petitioner in W.P(MD).No.20673/2017 V.Ramasubramania Achari .... Petitioner in W.P(MD).No.20674/2017 B.Sivakamiammal .... Petitioner in W.P(MD).No.20675/2017 Vs.

1. The Government of Tamil Nadu, Rep.by its Commissioner and Secretary, Transport Department, Fort St. George, Chennai.

2. The Government of Tamil Nadu, Rep.by its Secretary, Finance Department, Fort St. George, Chennai.

3. The Principal Accountant General, Accountants and Entitlements, 361, Anna Salai, Chennai - 600 018. ... Respondents 1 to 3 in all WPs

4. The Managing Director, TNSTC Department, Nesamani Nagar, Rani Thottam, Nagercoil, Kanyakumari District. ... 4th Respondent in WP(MD).Nos.19921,20616 to 20621/17,20623,20624/17, 20672 to 20674/17

The Managing Director, TNSTC Department, Kattabomman Transport Corporation Ltd., Tirunelveli, Tirunelveli District. 4th Respondent in WP(MD).No.20622/2017 The Managing Director, Tiruvaluvar Transport Corporation, Pallavan Salai, Chennai - 600 002. 4th Respondent in WP(MD).No.20675/2017 Prayer : Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, to direct the respondents 1 to 3 to implement the order of the Hon'ble Apex Court in S.L.P.No.19016 of 2008 dated 07.02.2013 and order in S.L.A(C)No.10152 of 2016 on 04.04.2016 and G.O.Ms.(3D)No.21, Transport (RW1) Department dated 06.05.2016 and on the basis of their own undertaking given before the Hon'ble Division Bench Contempt Application No.290 to 292 of 2015 dated 24.02.

2015 by refixing and remitting the petitioner's pension, arrears with emoluments and with interest at the rate of 18% per annum in his pension 1)pass book order No.A560737 Huzur Treasury, Nagercoil, Kanyakumari District. -Prayer in W.P(MD).No.19921/2017 2)pass book order No.C380475/TPT Huzur Treasury, Nagercoil,-Prayer in W.P(MD).No.20616/2017 3)pass book order No.C304758/TPT Eraniel Sub Treasury, -Prayer in W.P(MD).No.20617/2017 4)pass book order No.C380647/TPT Thovalai Sub Treasury @ Boothapandi -Prayer in W.P(MD).No.20618/2017 5)pass book order No.A560772 Eraniel Sub Treasury - Prayer in W.P(MD).No.20619/2017 6)pass book order No.A560672 Huzur Treasury at Nagercoil - Prayer in W.P(MD).No.20620/2017 7)pass book order No.A560538 Eraniel Sub Treasury - Prayer in W.P(MD).No.20621/2017 8)pass book order No.

A551941 Thovalai Sub Treasury at Boothapandi - Prayer in W.P(MD).No.20622/2017 9)pass book order No.A552249 Eraniel Sub Treasury - Prayer in W.P(MD).No.20623/2017 10)pass book order No.A560474 Sub Treasury, Vilavancode - Prayer in W.P(MD).No.20624/2017 11)pass book order No.C380475/TPT Huzur Treasury, Nagercoil - Prayer in W.P(MD).No.20672/2017 12)pass book order No.C380728/TPT Huzur Treasury, Nagercoil - Prayer in W.P(MD).No.20673/2017 13)pass book order No.C380475/TPT Huzur Treasury, Nagercoil - Prayer in W.P(MD).No.20674/2017 14)pass book order No.A560737/TPT Huzur Treasury, Nagercoil, Kanyakumari District - Prayer in W.P(MD).No.

For Petitioner : Mr.Joseph Thatheus Jerome For Respondents : Mrs.S.Srimathy, Special Government Pleader for R1 and R2 Mr.P.Gunasekaran for R3 Mr.S.Sathiyasingh for R4 COMMON ORDER The writ petitioners were originally appointed in the Madras Transport Corporation. Following the creation of the various public transport corporations, the petitioners were absolved in various transport corporations. All the writ petitioners retired from service long back. The service details of the individual writ petitioners is set out in the following table : Date of Retirement And Designation No.20672 S.

No Case No Petitioner's Name Date of Appointment and Designation 30.11.1991 Tradesman Kattabomman transport Corporation No.20673 P.Ramachandran 26.06.1965 Mechanic Madras state Corporation 01.12.1990 No.60674 S.Ganagadharan 06.02.1963 Madras State Corporation 31.05.1997 Fore man No.20675 P.Ramasubramania Achari 13.11.1963 Mechanic Madras state Corporation B.Sivakamiammal W/o.Late.

M.Balasubramaniyn 01.11.1956 Thiruvanthapuam Metropolitan Department 30.04.1985 Senior Driver Thiruvallur No.20616 I.Mariadass 01.10.1966 Liner Madras state Corporation 28.02.1991 Liner

No.20617 30.04.1996 Tradesman Special Grade No.20618 P.Ananchaperumal 28.06.1965 Mechanic Madras state Corporation 31.08.1994 Tradesman Special Grade No.20619 E.Krishnaswamy 26.06.1965Mecha nic Madras state Corporation 31.08.1997 Fore man No.20620 S.Ananthakrishnan 14.11.1963Mecha nic Madras state Corporation 31.01.1996 Driving Instructor No.20621 M.Subbaiah 23.03.1963 Driver Madras state Corporation 31.01.1995 Tradesman Special Grade No.20622 T.Murugesa pillai 12.11.1963 Pharmacist Madras state Corporation 31.05.1994 Traffic Manager No.20623 M.Nadarajan 15.03.1960 Madras state Corporation V.Ganesapillai 01.01.1964 Pharmacist Madras state Corporation 30.04.1994 Chief Pharmacist No.20624 S.Bahuleyan Nair 13.11.1963 Pharmacist Madras state Corporation 31.07.1981 Tradesman Special Grade

No.19921 S.Chorimuthu 26.11.1956 Thiruvanthapuam Metropolitan Department Traffic Inspector 2.The writ petitioners were disbursed the pensionary benefits by the respondent transport corporations. But, the grievance of the writ petitioners is that the services put in by them in the Transport Department of the Government of Tamil Nadu was not taken into account while computing their pensionary and other benefits. 3.When the erstwhile Government employees were absorbed as employees of the various transport corporations, an option was given to them. Some of the employees availed commutation benefts from the Government and therefore in those cases, the question of taking into account the services rendered in the Government department did not arise for calculating the pensionary benefits.

But, where the erstwhile Government employees did not avail the commutation benefits, the services put in by them in the Government department will have to be taken to account by the transport corporation and their pensionary benefits will have to be fixed accordingly. The issue is no longer res integra. 4.The Hon'ble Supreme Court of India while dismissing SLP(C) No.19016 of 2008 filed by the State of Tamil Nadu questioning the order dated 16.04.2008 in WA.No.3265 of 2002 fixed the cut of date as 01.04.1982 and held that pensionary benefits will have to be extended to the eligible employees who did not exercise the option for availing the commutation benefit from the Government. 5.

In the present case, in the affidavits filed in support of these writ petitions, the petitioners have specifically made an averment that they belonged to pensionable service and they had not given any option for commutation of the pensionary benefits and the provident fund and they had specifically pleaded that they had not given up their claim for pension in the government service at any point of time. They can only make an averment to this effect and they cannot be called upon to prove the negative. If the writ petitioners had exercised an option for availing provident fund benefit from the Government on 01.04.1982, it is for the respondents to produce the document showing that the writ petitioners have already relinquished their claim by availing the benefit from the Government.

6.This writ petition was filed way back in the year 2017. Till date, the respondents have not been in a position to rebut the aforesaid assertions made by the writ petitioners. Therefore, this Court has to proceed on the footing that the writ petitioners did not exercise any option for availing the commutation benefit. Therefore, their request for re-fixation and payment of arrears, in the light of the order of the Hon'ble Supreme Court in SLP.No.19016 of 2008 dated 07.02.2013 will have to be necessarily

accepted. The respondents are directed to refix the pension of the writ petitioners accordingly and disburse the pensionary benefits within a period of four months from the date of receipt of a copy of this order.

7.The learned counsel appearing for the writ petitioners on instructions foregoes the claim for any interest. The learned Special Government Pleader as well as the other counsel submitted that they are not in a position to trace out the relevant documents. The writ petitioners had retired almost 25 years ago. Therefore, they are not in a position to maintain the records. This is because of this difficulty that they are not in a position to meet the averments set out in the writ petitions. The learned counsel would also contend that the writ petitions deserve to be dismissed on the ground of laches. This Court is unable to agree with the said contention. The writ petitioners were the employees of the respective transport corporations. They are still getting pension. Therefore, the stand of the respondents that the records are not available cannot be accepted.

8.These writ petitions are allowed. No costs. Sd/- Assistant Registrar(W) /True Copy/ Sub Assistant Registrar To

1. The Commissioner and Secretary, Transport Department, Fort St. George, Chennai.

2. The Secretary, Government of Tamil Nadu, Finance Department, Fort St. George, Chennai.

3. The Principal Accountant General, Accountants and Entitlements, 361, Anna Salai, Chennai - 600 018.

+ 1 cc TO Mr.P.Gunasekaran , Advocate in SR No. 44249 + 1 cc TO Mr.K.Sathiya Singh , Advocate in SR No. 44137 + 1 cc TO The Special Government Pleader in SR No. 44613 skm AE/SV MMS/SAR3/02.07.2018/6P/7C W.P(MD)No.19921, 20616 to 20624 of 2017 and WP(MD)Nos.20672 to 20675 of 2017 24.01.2018