C.Vishalakshi v. Commissioner Secretary Department of Municipal Administration and Water Supply Govt. of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.10.2009CORAMTHE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMW.P.No.16547 OF 1999C.Vishalakshi ... PetitionerVs1. The Commissioner Secretary Department of Municipal Administration and Water Supply Govt. of Tamil Nadu Secretariate Fort St.George, Chennai 600 009 2. The Commissioner Corporation of Chennai Chennai - 600 003 ... RespondentsPrayer :Writ petition filed under Article 226 of the Constitution of Indiapraying for a writ of Certiorified Mandamus, to call for the recordsrelating to Letter No.G.D.Na.Ka.B3/4653 dated 04.03.1998 andG.O.Na.Ka.No.B3/19061/98 dated 17.06.1998 sent by the Commissioner,Corporation of Chennai and Letter No.11636/Ma Wa 3/98-2 dated11.05.1998 Govt. Sub Secretary and quash the same and direct thefirst respondent to communicate to the second respondent that thesaid G.O.Ms.208 dated 14.08.1997 and G.O.Ms.No.210 dated 16.03.1990can be applicable to the petitioner's case also consequently directthe second respondent to sanction and pay the Pension and FamilyPension arrears from 01.09.1976 and continuous Family Pension to thepetitioner.For Petitioner : Mr.D.Govinda ReddyFor Respondents: Mr.V.Bharathidasan Standing Counsel for R-1 Mr.G.Desingu Special Government Pleader for R-2 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe prayer in the writ petition is for the issuance of a writ ofCertiorified Mandamus to call for the records relating to LetterNo.G.D.Na.Ka.B3/4653 dated 04.03.1998 and G.O.Na.Ka.No.B3/19061/98dated 17.06.1998 sent by the Commissioner, Corporation of Chennai andLetter No.11636/Ma Wa 3/98-2 dated 11.05.1998 Govt. Sub Secretary,quash the same, to direct the first respondent to communicate to thesecond respondent that the said G.O.Ms.208 dated 14.08.1997 andG.O.Ms.No.210 dated 16.03.1990 can be applicable to the petitioner'scase and also consequently direct the second respondent to sanctionand pay the Pension and Family Pension arrears from 01.09.1976 andcontinuous Family Pension to the petitioner.2.The petitioner's husband was working as Assistant Fitterin the Metro Water Works Division, Corporation of Chennai. He hadjoined service on 16.03.1939 and retired on 11.08.1976 and his lastdrawn pay was Rs.163/- plus D.A. of Rs.95/-. The petitioner's husbanddied on 06.10.1991 leaving the petitioner and her son as his legalrepresentatives. 3.The petitioner would submit that though her husband hasrendered more than 37 years of service as Assistant Fitter in theMetro Water Division, Corporation of Madras, no pensionary benefitswere paid to him till his demise, though several Government Ordersare passed extending pensionary benefits. The petitioner hadapproached the Legal Aid Centre, attached to this Court and sent arepresentation to the second respondent on 06.02.1998 requesting forgrant of Family Pension. The second respondent, by an order, dated04.03.1998, rejected the petitioner's request stating thatG.O.Ms.No.132, Municipal Administration Water Supply Department,dated 01.08.1984, granted pension from 01.08.1984 to those whoretired from service and those who died after rendering service inthe Labour Division of the Corporation of Chennai and that thepetitioner's husband rendered service in the Labour Division prior to01.08.1984 as he had retired from service on 11.08.1976 and died on06.10.1991 and therefore Family Pension cannot be granted.4.The petitioner has further submitted that by theGovernment Order in G.O.Ms.No.654, Municipal and Water SupplyDepartment, dated 13.08.1984 family pension was sanctioned to oneMrs.Rajalakshmi Ammal, wife of Late C.S.Subramanian, who was also anemployee working in the Corporation and who died on 03.03.1951.Further, that the Government of Tamil Nadu in G.O.Ms.208, dated14.08.1997 had granted pension in respect of the persons employed inMunicipalities who have retired on or after 14.01.1970. Therefore thepetitioner would contend that the impugned order rejecting thepetitioner's request is untenable. https://hcservices.ecourts.gov.in/hcservices/

5.Mr.D.Govinda Reddy, learned counsel appearing for thepetitioner would assail the correctness of the impugned orders bysubmitting that the same are arbitrary, illegal and against theGovernment orders issued in this regard and the Government Orderissued by the Municipal Administration Water Supply Department areequally applicable to the second respondent / Corporation and thetechnical objection raised by the Corporation is unreasonable. 6.Mr.V.Bharathidasan, learned standing counsel for thesecond respondent would submit that the Government Orders, which hasbeen passed in G.O.Ms.208 dated 14.08.1997, is not applicable to theservice in the respondent Corporation and the said Government Ordercame to be passed in the light of representation from retiredMunicipal employees for re-fixing the cut of date for Pension underRule 6 of the Tamil Nadu Municipal Service Pension Rules, 1970. TheGovernment, after considering the recommendations of the Director ofMunicipalities, had fix the cut of date as on 14.01.1970. 7.The learned standing counsel would submit that in respectof the second respondent Corporation a recommendation was sent to theGovernment stating that there are two categories of staff in theCorporation which was peculiar to the Madras Corporation and therewas persistent demand to bring all of them in the regularestablishment. The Commissioner therefore considered that theconferment of additional benefits like pension, gratuity etc. to theLabour staff of the Corporation of Madras may help in promotingindustriousness and efficiency among them and hence in the interestand the welfare of these poor employees, the labour employees may bebrought into regular establishment, so as to enable them to avail allthe benefits as enjoyed by staff under establishment of Corporationof Madras. The learned counsel for the the second respondentCorporation had also approved a proposal of the Commissioner byresolution dated 03.19.1982 in resolution No.1246/83. The Governmentconsidered the same, accepted the proposal of the Commissioner andaccordingly issued G.O.Ms.No.132, Municipal Administration WaterDistribution Department dated 01.08.1984 by considering that thelabour employees of the Corporation of Madras would be morebenefited, if they are brought under establishment and if the pensionscheme is extended to them by obtaining exemptions from theprovisions of employees Provident Fund and Miscellaneous ProvisionsAct, 1952 and the Schemes framed thereunder. Thus on and after theissuance of the said Government Order i.e., with effect from01.08.1984, the employees are enjoying the pension and the family ofthe deceased employees are also paid family pension. The learnedstanding counsel would submit that since the petitioner's husbandretired on 11.08.1976 i.e., prior to the Government Order, therespondents are justified in rejecting the request and the impugnedorders do not suffer from any infirmity. https://hcservices.ecourts.gov.in/hcservices/

8.I have carefully considered the submissions on eitherside and perused the materials available on record.9.It cannot be disputed that a directions which are issuedby the Government, more particularly, the Municipal Administrationand Water Supply Department are binding on the second respondentcorporation. Therefore, any direction issued for granting anybenefits to employees or erstwhile employes would be binding on thesecond respondent. It is seen from the facts of the present case thatthe petitioner's husband retired on 11.08.1976. The only hurdle whichprevents the second respondent from extending benefit of the familypension to the petitioner is that G.O.Ms.No.132, MunicipalAdministration Water Distribution Department dated 01.08.1984, wasgiven effect to prospectively and therefore the benefit cannot begranted to such of those employees who retired prior to 01.08.1984. 10.In my view, the recommendation of the Commissioner ofCorporation to bring all the labour employees into regularestablishment so as to extend additional benefits like pension andgratuity etc., to the labour staff was in the interest and thewelfare of the employees. It is true that such proposal from theCommissioner had emanated during 1982 and approved by a council on03.02.1982. Therefore, the first respondent while reviewing thematter accepted the recommendations of the Commissioner and broughtthem under regular establishment. If that be the case, nothingprevented the first respondent from granting such relief to all thoseemployees who were under the control of the second respondentCorporation. Though the Government Order in G.O.Ms.No.132 does notfix any cut of date the second respondent has understood that itshall apply with effect from 01.09.1984. It is to be noted that byG.O.Ms.208 dated 14.08.1997 the cut of date for payment of pensionfor Municipal Employees which was originally fixed at 16.06.1983 wassubsequently revised as 14.01.1970. If that be the case, it wasalways upon to the first respondent to consider extending similarbenefit to the erstwhile employes of the second respondentcorporation who retired from service prior to 01.08.1984. In fact theGovernment has also in G.O.Ms.No.654, Municipal and Water SupplyDepartment, dated 13.08.1984 had granted family pension to a wife ofthe deceased Corporation employee who had worked in the secondrespondent corporation and retired on 31.03.1948. 11.Hence, in my view, the interpretation given in theimpugned order is not sustainable since in respect of another retiredemployee, family pension had been sanctioned to his widow by theGovernment in G.O.Ms.No.654 dated 13.08.1984. Therefore theGovernment while passing such order, obviously did not consider that01.08.1984 was the cut of date for grant of pension. Hence the propercourse which should have been adopted is to forward the petitioner's https://hcservices.ecourts.gov.in/hcservices/ request to the Government and seek appropriate rules however withoutadopting such procedure the second respondent chose to summarilyreject the petitioner's request. Hence the impugned order is liableto be set aside on the above ground. Accordingly, the writ petitionis allowed and the second respondent Corporation is hereby directedto forward the proposal of the petitioner for grant of pensionalongwith its recommendations by considering G.O.Ms.208 dated14.08.1997 as well as G.O.Ms.No.654, Municipal and Water SupplyDepartment, dated 13.08.1984, and such proposal shall be forwarded bythe second respondent Corporation to the first respondent within aperiod of two months from the date of receipt of copy of this order.On receipt of such proposal from the second respondent, the firstrespondent shall consider the same on merits and in accordance withlaw and pass appropriate orders on the petitioner's request forfamily pension taking into consideration of G.O.Ms.208 dated14.08.1997 and G.O.Ms.No.654, Municipal and Water Supply Department,dated 13.08.1984 as well as the recommendations made by theCommissioner of Corporation, Chennai, as well as the resolutionpassed by the second respondent corporation in resolution No.1246/83dated 03.12.1983 and pass appropriate orders thereon within a periodof two months from the date of receipt of the proposal from thesecond respondent Corporation. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrnsTo1. The Commissioner Secretary Department of Municipal Administration and Water Supply Govt. of Tamil Nadu Secretariate Fort St.George, Chennai 600 009 2. The Commissioner, Corporation of Chennai, Chennai - 600 003+ 1 cc to Mr.V.Bharathidasan, Advocate, SR 56710+ 1 cc to Mr.D.Govinda Reddy, Advocate, SR 56631+ 1 cc to Govt., Pleader, SR 56497W.P.No.16547 OF 1999GGK (CO)RH (3.12.09)