IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.11.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.40508 of 2002 1.Y.Rajaian (deceased), 2.Pradeep Kumar, 3.Vilasini, 4.Prabha 5.Bindhu, 6.Sindhu. (Petitioners 2 to 6 are added as legal representatives of the deceased first petitioner vide order dated 3.11.2009 passed in WPMP No.502 of 2008 in WP.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. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent issued in letter No.4122/TPT/TBC 2/01 dated 22.1.2002, quash the same insofar as the withholding of arrears of pension from 1.5.1975 to 31.7.1999 alone is concerned and direct the first respondent to pay arrears of pension 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 R The Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent issued in letter No.4122/TPT/TBC 2/01 dated 22.1.2002, quash the same insofar as the withholding of arrears of pension from 1.5.1975 to 31.7.1999 alone is concerned and direct the first respondent to pay arrears of pension for the above period forthwith. 2. It is stated that during the pendency of the writ petition, the petitioner Y.Rajaian died on 1.10.2006. To bring the legal 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 were brought on record as legal representatives of the deceased petitioner Y.Rajaian as petitioners 2 to 6 in the writ petition. 3. The deceased first petitioner joined in the Madras Transport Department as conductor on 12.7.1963. Thereafter, from 1.1.1974, he was absorbed in the then Kattabomman Transport Corporation which latter became Tamil Nadu Transport Corporation. Therefore, the deceased petitioner became an employee of a government owned transport corporation. 4. In the year 1974, disciplinary proceedings were initiated and the petitioner was removed from service. The said order was challenged 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 matter for passing fresh order. Again the petitioner was dismissed from service on 11.10.1982 and the said order was challenged in W.P.Nos.7486 of 1990 and 4617 of 1988 and by a common order dated 1.8.1990, this court directed reinstatement without back wages, however, with continuity of service. The deceased first petitioner took up the matter in Writ Appeal No.1264 of 1990 and a Division Bench of this Court by order dated 23.1.1991 granted the benefit of back wages to the deceased first petitioner from the date of dismissal to reinstatement. The Division Bench in its order granted liberty to the respondent transport Corporation to recover the amount, if any, if the deceased first petitioner was proved to be employed otherwise during any period during which he was out of employment. 5. The deceased first petitioner was reinstated in service as conductor in the then Kattabomman Transport Corporation on 11.10.1990 and retired on superannuation on 31.7.1999. In pursuant to the order of the Division Bench of this court, the respondent 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 petitioner was paid a sum of Rs.75,498.16. The sum of Rs.75,498.16 is now sought to be recovered by order dated 17.6.1992 on the ground that the deceased first petitioner was employed in Doha during the period of dismissal from service. Therefore, in terms of the order of the Division Bench of this Court, the Transport Department is entitled to recover the said amount. The deceased first petitioner repaid a sum of Rs.40,000/- under protest. The respondent transport corporation has filed a suit O.S.No.45 of 1993 before the Sub Court, Kuzhithurai for recovery of Rs.1,28,154/-. The suit O.S.No.45 of 1993, however, was dismissed on 21.8.1995. The respondent transport corporation filed A.S.No.354 of 1996 before this Court. Thereafter, the deceased first petitioner made a representation to the respondent Transport Corporation stating that his claim has not been properly considered taking into consideration the date of his joining service, which falls on 1.7.1975. In spite of the deceased first petitioner having more than ten years of service in erstwhile Transport Department, the respondent transport corporation passed an order dated 22.1.2002 rejecting his claim for payment of arrears of pension stating that the deceased first petitioner will be entitled to pension only from 1.8.1999 and withheld the arrears of pension for the period from 1.5.1975 to 31.7.1999. The relevant portion in para 2 of the proceedings dated 22.1.2002 reads as follows:- "I am also to state that the payment pertaining to the period from 1.5.1975 to 31.7.1999 can be made after the case in A.S.No.354/96 is disposed off finally by the High Court as per the directions issued in Government Letter(MS)No.17, dated 21.2.2001. The monthly pension may be arranged to be paid by the Transport Corporation from the Corporation funds until a final decision is taken by Government in regard to the payment of monthly pension through Government Treasuries concerned." 6. Present Writ Petition has been filed challenging the order dated 22.1.2002 in letter No.4122/TPT/TBC.2/01 stating that the deceased first petitioner is entitled to the pensionary benefits from 1.5.1975 to 31.7.1999 and the pendency of the Appeal Suit No.354 of 1996 cannot be a ground to deny the pensionary benefits. 7. A counter-affidavit has been filed by the second respondent 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 to the attention of the court, the order dated 31.8.2009 passed in A.S.No.354 of 1996 whereby the appeal filed by the transport corporation against the dismissal of the suit O.S.No.45 of 1993 has been dismissed. 9. The reason for withholding the payment of pension arrears for the period from 1.5.1975 to 31.7.1999 is only because of the pendency of the Appeal Suit No.354 of 1996. In view of the final order passed in A.S.No.354 of 1996 on 31.8.2009, there can be no impediment in granting the relief to the petitioners. 10. In the result, the Writ Petition is ordered. The second respondent is directed to pass appropriate orders relating to the claim of the petitioners on merits and in accordance with law as expeditiously as possible preferably on or before 18.12.2009. No costs. ts Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 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 2002 VSN(CO) PMK,SR/10.11.2009 https://hcservices.ecourts.gov.in/hcservices/