IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.03.2011 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN WRIT PETITION No.1780 of 2007 S.Ganesan .. Petitioner vs. 1. The Government of Tamil Nadu, rep. by The Secretary to Government, Housing and Urban Development Department Secretariat, St.George Fort, Chennai-600 009 2. The Managing Director Tamil Nadu Housing Board No.493, Anna Salai, Nandanam, Chennai-35 .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus directing the respondents to pay pension from 01.07.2002 with arrears till the date of payment, 40% commutation of pension, refund of Rs.48,579/- being the gratuity amount recovered for the Audit para 16/1999-2000 which was dropped on 26.11.2002, leave salary for three months on unearned leave on private affairs and family benefit fund of Rs.5000/- with interest at 18% per annum, for the delayed period within a stipulated time as may be fixed. For Petitioner : Mr.P.Veera Raghavan For 1st Respondent : Mr.S.Gopinathan,Addl.Govt.Pleader For 2nd Respondent : Mr.A.Vijaya Kumar counsel for TNHB O R D E R
Heard Mr.P.Veera Raghavan, learned counsel for the petitioner and Mr.S.Gopinathan, learned Additional Government Pleader appearing for the 1st respondent and Mr.A.Vijaya Kumar, learned counsel for the 2nd respondent.
2. This writ petition is filed by the petitioner for a direction, to the respondents to pay pension from 01.07.2002, with arrears till the date of payment, 40% commutation of pension, refund of Rs.48,579/- being the gratuity amount recovered in the audit para 16/1999-2000 which was dropped on 26.11.2002, leave salary for three months on unearned leave on private affairs and Family Benefit fund of Rs.5000/- with interest at 18% per annum for the delayed period.
3. According to the petitioner, he was appointed as Chemist in Madras State Housing Board on 09.09.1968, and promoted as Lab Chief on 06.01.1972. Thereafter, he was awarded with selection grade on completion of 10 years of service on 06.01.1982, and special grade on completion of 20 years on 06.01.1992. Further a super grade was awarded on 06.01.2002. While so, he was working as Lab Chief at Cellular Concrete Plant (herein after called as CCP) at Ennore, he was made as General Manager of the plant which is a sick unit. Therefore, the petitioner served there as Lab Chief from 06.01.1972 to 21.02.1989. He was given additional charge of General Manager in charge of CCP division from 22.02.1989 and continued as such till 03.05.2000. Since the CCP division was closed and it was made as sub division on 03.05.2000, and merged with Anna Nagar division. He served as Lab Chief at CCP Ennore sub division from 03.05.2000 to 30.04.2002 and he was transferred to Madurai division and attained the age of superannuation on 30.06.2002.
4. Before his retirement, he was issued with charge memo by the 2nd respondent, on 03.04.2002, under Rule 37(b) of Tamil nadu Housing Board Service Regulations 1969, wherein three charges were framed against him.
Charge No.1: Petitioner attended the meeting conducted for settlement of pending IAP Paras relating to CCP only at 12.30 p.m on 15.03.2002, instead of scheduled time of 11.00 a.m
Charge No.2: Petitioner has not replied to the 26 Nos of pending IAP Paras and he has not taken any efforts to prepare reply for paras and failed to settle the IAP paras relating to CCP despite specific instructions.
Charge No.3: By the above act, the petitioner proved himself unworthy to hold the responsible post. Therefore, he has violated section 20 of Tamil Nadu Housing Board officers and servants conduct regulation 1963 and TNHB 32(A) of 1969.
5. Further on 20.06.2002, another charge memo was issued under Rule 37(b) of Tamil Nadu Housing Board Service Regulations wherein two charges were framed, one for an allegation that he has not prepared a survey report for the stock of 228 Nos of Aluminium powder empty drums and the second one is that the petitioner as in charge General Manager has not taken action to utilize the cement stock. While that being so, the petitioner attained the age of superannuation on 30.06.2002. The 2nd respondent in his memo No. pa.tho.nu.1/64353/200 dated 28.06.2002, permitted the petitioner to retire from service without prejudice to the disciplinary proceedings pending against him.
6. It is further submitted that for the above two charge memos, the petitioner submitted his explanations on 17.05.2002 and 03.10.2002. Enquiry was conducted and the 2nd respondent in his two separate proceedings passed separate final orders recovery of Rs.12,300/- from DCRG of the petitioner in respect of first charge memo and in respect of the second charge memo recovery of Rs.48,806/-.
7. As against the two recovery orders, the petitioner preferred an appeal to the 1st respondent on 12.08.2004. The 1st respondent has not passed any orders. Even though, the petitioner was allowed to retire on attaining the age of super annuation, no provisional pension was granted to him, pending the disciplinary proceedings. The two orders of the Disciplinary authority dated 30.06.2004 and 12.07.2004 were taken on appeal and pending the same, the petitioner gave a representation to the 2nd respondent on 28.07.2004 and 08.11.2004 for payment of pension. There was no reply from the respondents and no pension was paid. After the receipt of representation, the Administrative Officer of Tamil Nadu Housing Board in its proceedings No. PT.1/50810/01 dated 14.07.2006, sanctioned gratuity of Rs.3,50,000/- to the petitioner and recovered Rs.1,09,685/- from his DCRG amount including Rs.48,579/- for the audit objection under Para No.16/99-2000 which was dropped on 26.11.2002. The 2nd respondent recovered Rs.48,579/- from the DCRG of the petitioner without any notice and enquiry and hence the petitioner in his representation dated 20.09.2006 has requested the 2nd respondent to refund the above amount of Rs.48,579/-.
8. The 2nd respondent has filed counter elaborating the events from the date of the petitioner’s appointment till the date of his superannuation. Two charges were framed against the petitioner and final orders were passed on the charges ordering recovery of a sum of Rs.48,806/- and Rs.12,300/- and besides that a sum of Rs.48,579/- was ordered to be recovered towards the audit objection under No.16/99-2000 which relates to making adjustment entries in the ledger to a tune of Rs.4,70,173.02/-. The incident relates to different periods from 1977 to 1999. There is no objection regarding loss caused to the Board and the petitioner retired on 30.06.2002.
9. Based on the two recovery orders, total amount of Rs.1,09,685/- was recovered from the petitioner. However, order was passed for sanction of the payment of service gratuity of Rs.3,50,000/- after the recovery of the said amount. Based on the above order, the gratuity amount of Rs.2,40,315/- was paid to the petitioner vide cheque No.071083 dated 31.08.2006.
10. It is the stand of the 2nd respondent that the petitioner was appointed as Chemist in CCP and he was temporarily promoted as Laboratory Chief on 06.01.1972 and he was allowed to retire on superannuation on 30.06.2002, without prejudice to the disciplinary proceedings pending against him. As a CCP employee, the petitioner was not eligible for benefits like EPF, ESI, pensionary benefits at the time of his retirement. At that point of time, the Thakkaikal Tholilar Munnetra Sangam moved this court in WP.Nos.10120/2003 and 21886/2003 praying for payment of pensionary benefits to the employees of CCP. The said relief was granted by this court as against which an appeal was filed in W.A.Nos.394/2008 and 395/2008. The Division Bench confirmed the order of the Single Judge in its order dated 28.04.2008, and ordered to pay pensionary benefits to all the employees of CCP. The averments of the 2nd respondent as stated in paras 10 and 12 of the counter are extracted as under:
“10. With regard to the averments made in para-8, it is submitted that the petitioner was one of the employees of Cellular Concrete Plant and not eligible for pension at the time of his retirement. He became eligible for pension only after the recent Judgment of Hon’ble High court dated 28.04.2008. The charges were framed against the Petitioner under Regulation 37(b) of TNHB S.R. 1969. After conducting detailed inquiry and with the approval of the disciplinary committee, the Board awarded the punishment to recover a sum of Rs.48,579/- from the DCRG payable to the petitioner vide Board Resolution No.12.05 dated 14.10.1997. The petitioner filed an appeal to Government. The Government in G.O.I.D.No.154, Housing & Urban Developpment (HB1(1) Department dated 15.06.2007 rejected the appeal filed by the petitioner.
…
12. With regard to the averments made in para-10, it is submitted that the respondent has already paid gratuity vie cheque No.071083 dated 31.08.2006. At the time of retirement the petitioner was not eligible for pension 40% commutation and leave on private affair. Some other Cellular Concrete Plant employees (except the petitioner) filed W.A.Nos.395/2008 and 396/2008 and the Hon’ble High court passed orders to pay pensionery benefits to those Cellular Concrete Plant employees. The petitioner is also one of the Cellular Concrete Plant employees. But the petitioner is not a party in the case filed by Cellular Concrete Plant employees. Subsequently, the Board has also issued orders to award pensionary benefits to all the employees of the Cellular Concrete Plant including those who were not party to the case filed by the employees of the Cellular Concrete Plant in the Hon’ble High court. Thereafter, steps are being taken to comply the Board’s decision to extend the benefits of the order dated 28.04.2008 of the Hon’ble High court in W.A.No.395 and 396 of 2008. The petitioner is to be paid the retirement benefits, as per his eligibility and which he is legally entitled for. However, payment of interest does not arise, since the petitioner’s eligibility itself for pensionary benefits,was not subsisting at the time of his retirement. Hence, the present writ petition is not maintainable either in law or on facts and is liable to be dismissed.”
11. At the outset, the learned counsel for the petitioner submitted that the petitioner was not paid monthly pension from 01.07.2002. The gratuity amount was paid on 14.07.2006, after recovering the amount as per the orders passed by the 2nd respondent. He would further submit that the petitioner has to be provided with arrears from 01.07.2002, till the date of payment, 40% commutation of pension, refund of Rs.48,579 being the gratuity amount recovered for the Audit para 16/1999-2000 which was dropped on 26.11.2002, leave salary for three months and unearned leave on private affairs and Family Benefit fund, as no payment was made to the petitioner. It is also his submission that when the respondent has paid the gratuity amount to the petitioner, the pensionary benefit should also to be paid to him and conceptually the logical reasons for payment of gratuity implies that he is entitled to get pensionary benefits also.
12. After noticing the averments in para 12 of the counter of the 2nd respondent, the learned counsel for the petitioner submits that in view of the specific stand taken by the Board to extend the pensionary benefits to all the employees of CCP, the statement made by the respondent in paragraph 12 of the counter may be recorded and the writ petition may be closed.
13. On the other hand, learned counsel for the 2nd respondent opposing the claim of the petitioner in respect of refund of Rs.48,579/- stated that it cannot be granted and also submitted that the petitioner is entitled for other benefits as per the orders of this court.
14. In the light of the above, as the petitioner has accepted the recovery and has contested nothing except the claim made in this petition, it is necessary for this court, to traverse on whatever the contentions pleaded in respect of disciplinary proceedings therefore, this writ petition has to be disposed of.
15. A perusal of the statement made in paragraph 12 of the counter would reveal that at the time of retirement, the petitioner was not eligible for pension 40% commutation and leave on private affairs. After the orders of this court, in W.A.Nos.394 and 395 of 2008, this court passed orders to pay pensionary benefits to the employees worked in CCP. The petitioner is also one of the CCP employee, but the petitioner was not a party in the said case. This court has passed orders directing the CCP to pay pensionary benefits to all the employees including those who are not parties in the case filed by the employees of CCP in the High court. Therefore, steps are being taken to comply with orders to extend the benefit of order dated 28.04.2008 in W.A.Nos.394 and 395 of 2008 and as the petitioner also was an employee of CCP, he is also to be paid with entire benefits as per his eligibility which he is legally entitled for. However, the payment of interest does not arise since the eligibility for pensionary benefits were not subsisting at the time of petitioner’s retirement. This stand of the respondent is recorded and the writ petition is disposed of in the following terms:
(a) The statement of the respondents in paragraph 12 of the counter is recorded.
(b) In respect of the claim of the petitioner for refund of the amount of Rs.48,579/- which was recovered towards Audit objection par 16/1999-2000 and was dropped on 26.11.2002, it is open to the petitioner to make a claim in respect of such refund by making a fresh representation. If such representation is made, respondent shall look into the same in the above stated position and pass appropriate orders.
(c) As regards the claim for interest, since this court ordered the benefit only on 28.04.2008, and the petitioner was not a party to the writ proceedings or writ appeal and now as the Board has taken a positive decision to extend the benefits to all the employees of CCP, therefore on the interest part, this court is not inclined to consider the same. No costs.
11.03.2011
Index :Yes/No
Internet :Yes/No
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V.DHANAPALAN,J.
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To
1. The Secretary to Government,
Housing and Urban Development Department
Secretariat, St.George Fort, Chennai-600 009
2. The Managing Director
Tamil Nadu Housing Board
No.493, Anna Salai, Nandanam, Chennai-35
WRIT PETITION No.1780 of 2007
Dated: 11.03.2011