Y.Rajaian (deceased) v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 3.11.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.40508 of 2002 1.Y.Rajaian (deceased),2.Pradeep Kumar,3.Vilasini,4.Prabha5.Bindhu,6.Sindhu.(Petitioners 2 to 6 are addedas legal representatives of the deceased first petitioner vide order dated 3.11.2009 passed in WPMP No.502 of 2008 inWP.40508/02 by RSJ) ... Petitioners vs.1.The Government of Tamil Nadu, represented by its Secretary, Transport Department, Fort St. George, Chennai-9.2.The Managing Director, Tamil Nadu State Transport Corporation, (Madurai Division-II), Tirunelveli-3. ... RespondentsWrit Petition is filed under Article 226 of the Constitutionof India to issue a Writ of Certiorarified Mandamus, calling forthe records of the first respondent issued in letterNo.4122/TPT/TBC 2/01 dated 22.1.2002, quash the same insofar as thewithholding of arrears of pension from 1.5.1975 to 31.7.1999 aloneis concerned and direct the first respondent to pay arrears ofpension for the above period forthwith.For Petitioners 2 to 6 : Mr.Vijayakumar for Mr.Ravichandrabaabu For Respondents : Mrs.C.K.Vishnupriya, Additional Government Pleader for R1 : No Appearance R2----- https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe Writ Petition is filed praying to issue a Writ ofCertiorarified Mandamus, calling for the records of the firstrespondent issued in letter No.4122/TPT/TBC 2/01 dated 22.1.2002,quash the same insofar as the withholding of arrears of pensionfrom 1.5.1975 to 31.7.1999 alone is concerned and direct the firstrespondent to pay arrears of pension for the above periodforthwith. 2. It is stated that during the pendency of the writpetition, the petitioner Y.Rajaian died on 1.10.2006. To bring thelegal representatives of the deceased petitioner on record,W.P.M.P.No.502 of 2008 has been filed and the same was allowed.The petitioners 1 to 5 mentioned in W.P.M.P.No.502 of 2008 werebrought on record as legal representatives of the deceasedpetitioner Y.Rajaian as petitioners 2 to 6 in the writ petition. 3. The deceased first petitioner joined in the MadrasTransport Department as conductor on 12.7.1963. Thereafter, from1.1.1974, he was absorbed in the then Kattabomman TransportCorporation which latter became Tamil Nadu Transport Corporation.Therefore, the deceased petitioner became an employee of agovernment owned transport corporation.4. In the year 1974, disciplinary proceedings were initiatedand the petitioner was removed from service. The said order waschallenged in W.P.No.4704 of 1978 and by order dated 13.8.1981,this court set aside the order of removal and remanded the matterfor passing fresh order. Again the petitioner was dismissed fromservice on 11.10.1982 and the said order was challenged inW.P.Nos.7486 of 1990 and 4617 of 1988 and by a common order dated1.8.1990, this court directed reinstatement without back wages,however, with continuity of service. The deceased first petitionertook up the matter in Writ Appeal No.1264 of 1990 and a DivisionBench of this Court by order dated 23.1.1991 granted the benefit ofback wages to the deceased first petitioner from the date ofdismissal to reinstatement. The Division Bench in its ordergranted liberty to the respondent transport Corporation to recoverthe amount, if any, if the deceased first petitioner was proved tobe employed otherwise during any period during which he was out ofemployment. 5. The deceased first petitioner was reinstated in service asconductor in the then Kattabomman Transport Corporation on11.10.1990 and retired on superannuation on 31.7.1999. Inpursuant to the order of the Division Bench of this court, therespondent transport corporation determined the back wages to the https://hcservices.ecourts.gov.in/hcservices/ tune of Rs.1,53,568.16 and from this amount a sum of Rs.67,162/-was deducted towards income tax and the deceased first petitionerwas paid a sum of Rs.75,498.16. The sum of Rs.75,498.16 is nowsought to be recovered by order dated 17.6.1992 on the ground thatthe deceased first petitioner was employed in Doha during theperiod of dismissal from service. Therefore, in terms of the orderof the Division Bench of this Court, the Transport Department isentitled to recover the said amount. The deceased first petitionerrepaid a sum of Rs.40,000/- under protest. The respondenttransport corporation has filed a suit O.S.No.45 of 1993 before theSub Court, Kuzhithurai for recovery of Rs.1,28,154/-. The suitO.S.No.45 of 1993, however, was dismissed on 21.8.1995. Therespondent transport corporation filed A.S.No.354 of 1996 beforethis Court. Thereafter, the deceased first petitioner made arepresentation to the respondent Transport Corporation stating thathis claim has not been properly considered taking intoconsideration the date of his joining service, which falls on1.7.1975. In spite of the deceased first petitioner having morethan ten years of service in erstwhile Transport Department, therespondent transport corporation passed an order dated 22.1.2002rejecting his claim for payment of arrears of pension stating thatthe deceased first petitioner will be entitled to pension only from1.8.1999 and withheld the arrears of pension for the period from1.5.1975 to 31.7.1999. The relevant portion in para 2 of theproceedings dated 22.1.2002 reads as follows:-"I am also to state that the paymentpertaining to the period from 1.5.1975 to31.7.1999 can be made after the case inA.S.No.354/96 is disposed off finally by theHigh Court as per the directions issued inGovernment Letter(MS)No.17, dated 21.2.2001.The monthly pension may be arranged to be paidby the Transport Corporation from theCorporation funds until a final decision istaken by Government in regard to the payment ofmonthly pension through Government Treasuriesconcerned." 6. Present Writ Petition has been filed challenging the orderdated 22.1.2002 in letter No.4122/TPT/TBC.2/01 stating that thedeceased first petitioner is entitled to the pensionary benefitsfrom 1.5.1975 to 31.7.1999 and the pendency of the Appeal SuitNo.354 of 1996 cannot be a ground to deny the pensionary benefits.7. A counter-affidavit has been filed by the secondrespondent transport corporation stating that the balance amount,if any, is withheld because of the pendency of A.S.No.354 of 1996. https://hcservices.ecourts.gov.in/hcservices/

8. Learned counsel for the petitioners 2 to 6 now brought tothe attention of the court, the order dated 31.8.2009 passed inA.S.No.354 of 1996 whereby the appeal filed by the transportcorporation against the dismissal of the suit O.S.No.45 of 1993 hasbeen dismissed. 9. The reason for withholding the payment of pension arrearsfor the period from 1.5.1975 to 31.7.1999 is only because of thependency of the Appeal Suit No.354 of 1996. In view of the finalorder passed in A.S.No.354 of 1996 on 31.8.2009, there can be noimpediment in granting the relief to the petitioners.10. In the result, the Writ Petition is ordered. The secondrespondent is directed to pass appropriate orders relating to theclaim of the petitioners on merits and in accordance with law asexpeditiously as possible preferably on or before 18.12.2009. Nocosts.tsSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo 1. The Secretary to Government of Tamil Nadu, Transport Department,Fort St. George, Chennai-9.2.The Managing Director,Tamil Nadu State Transport Corporation,(Madurai Division-II),Tirunelveli-3. + 1 CC to Mr.P.Sukumar, Advocate SR NO :59041+ 1 CC to Mr.Ravichandrabaabu, Advocate SR NO :58614+ 1 CC to Government Pleader, High Court, Madras SR NO 58965 Order in W.P.No.40508 of 2002VSN(CO)PMK,SR/10.11.2009