{"id":175250,"date":"2004-10-05T00:00:00","date_gmt":"2004-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-ethendra-babu-vs-the-state-of-tamil-nadu-on-5-october-2004"},"modified":"2017-12-15T19:08:08","modified_gmt":"2017-12-15T13:38:08","slug":"s-ethendra-babu-vs-the-state-of-tamil-nadu-on-5-october-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-ethendra-babu-vs-the-state-of-tamil-nadu-on-5-october-2004","title":{"rendered":"S.Ethendra Babu vs The State Of Tamil Nadu on 5 October, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Ethendra Babu vs The State Of Tamil Nadu on 5 October, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 05\/10\/2004  \n\nCORAM   \n\nTHE HONOURABLE MR. JUSTICE A.K. RAJAN          \n\nWrit Petition No.43396  of 2002\n\n\n1. S.Ethendra Babu \n2. M.Jayaraj\n3. M.Rajkumar \n4. R.Rathnasabapathi \n5. R.Ganesan \n6. P.Gangadaran \n7. M.Venkatakrishnan \n8. N.Kalyanam \n9. C.S.Srinivasan\n10.K.Ssubramanian  \n11.N.Sabapathy  \n12.P.Murugesan                                  .. Petitioners\n\n-Vs-\n\n1. The State of Tamil Nadu\nrep by the Secretary to Govt.,\nTransport Dept.,\nFort St. George\nChennai 9.\n\n2. The Administrator\nTamil Nadu State Transport Corporation\n  Employees Post Retirement Benefit Fund \nC\/o. Transport Development Finance \n      Corporation\n93, Greams Road  \nChenai 6.\n\n3. The Tamil Nadu State Transport Corporation\nCoimbatore (Division I) Ltd.,\nCoimbatore, \nrep by its Managing Director\n37, Mettupalayam Road  \nCoimbatore. \n\n4. The Metropolitan Transport Corporation Limited\nrep by its Managing Director\nPallavan Salai, Chennai 2.\n\n5. The Tamil Nadu State Express \n    Transport Corporation Ltd.\nrep by its Managing Director\nPallavan Salai\nChennai. \n\n6. The Tamil Nadu State\n     Transport Corporation\nKumbakonam (Division I) Ltd \nrep by its Managing Director\nKumbakonam.   \n\n\n\n\n7. The Tamil Nadu State\n    Transport Corporation Ltd.\nVillupuram (Division II) Ltd.\nrep by its Managing Director\nVellore.                                                .. Respondents\n\n        PRAYER :  Petition filed under Article  226  of  the  Constitution  of\nIndia  praying for the issuance of a Writ of Certiorarified Mandamus as stated\ntherein.\n\n\n!For Petitioners ..  Mr.  M.Palani\n\n^For RR 1,2,4,5 ..  Ms.  V.Velumani, AGP \nFor R.3         ..  Mr.  R.Palanisamy\nFor R6 & R7     ..  Mr.  V.R.Kamalanathan\n\n:O R D E R \n<\/pre>\n
                The  prayer  in  the  writ  petition  is  to  issue  a Writ of
\nCertiorarified Mandamus to call for the records of  the  first  respondent  in
\nLetter  No.19287\/D\/99-8,  dated  24.9.2002,  quash  the  same  and  direct the
\nrespondent- Corporation herein to pay pension to  the  petitioners  herein  in
\naccordance  with  the  Government  Order in G.O.138, Transport (D) Department,
\ndated 10.5.1999.\n<\/p>\n
                2.   The  petitioners,  who were all Officers, were working in
\nvarious Transport Corporations in the managerial cadre.  In the year 1992, the
\nTransport Corporations introduced a Post Retirement Benefit Fund Scheme.    As
\nper  that  scheme,  the  employee  has to contribute Rs.50\/- per month and the
\nmanagement would  pay  Rs.1,000\/-  as  their  share.    The  scheme  was  made
\napplicable only  to  the  employees  “workers” including the Supervisors.  The
\nFederation of Officers in  the  cadre  of  management  of  all  the  Transport
\nCorporations  made a representation to the first respondent to extend the said
\nscheme also to the Officers.  Considering the  representation,  G.O.Ms.No.138,
\nTransport,  dt.10.5.19 99 was issued, extending the benefits to the managerial
\ncadre, subject to the condition that Officers  have  to  contribute  Rs.1000\/-
\nthemselves apart from  Rs.50\/-  per  month from 1.9.1992.  This G.O.  was made
\napplicable to all Officers who were  working  since  1992,  even  though  they
\nretired on  the  date  of issue of the said Government Order.  The petitioners
\nherein retired before the G.O.  was issued.    All  the  Corporations  sent  a
\nletter to the Officers, demanding the contribution calculated as per the G.O.;
\nand it  was paid by the petitioners.  But, the Government did not pay pension,
\ninspite of repeated requests.  The respondents sent a letter, stating that the
\nprovisions of the Government Order is only prospective and it would apply  for
\nthe  Officers who retired on or after the date of the Government Order and not
\nto  the  persons  who  retired  before  the  Government  Order   was   issued.
\nChallenging the said letter, the present writ petition has been filed.\n<\/p>\n
                3.   The  case  of  the  respondents, as seen from the counter
\naffidavit, is that the Tamil Nadu State Transport Corporation employees’  Post
\nRetirement  Benefit  Fund Scheme was introduced with effect from 1.9.199 2; it
\nwas part of the Wage Settlement  1992;  G.O.Ms.No.138,  Transport  Department,
\ndated  10.5.1999,  extends  the  benefit  of  pension  to  the Officers in the
\nmanagerial cadre, who were on the rolls of the Corporations on the date of the
\nGovernment Order.  The Scheme was the outcome  of  the  Wage  Settlement  1992
\nunder  Section  12(3)  of the Industrial Disputes Act, and as such Officers in
\nmanagerial cadre were not eligible for the benefit under the  Scheme  as  they
\nwere not  parties  to the settlement.  Later on, on the representation made by
\nthe Officers, the Government passed the said G.O..  It  applies  only  to  the
\nOfficers  in the managerial cadre, who were on the rolls of the Corporation on
\nthe date of the Order; the G.O.  is only prospective.   The  petitioners  have
\nremitted  the  amount  at  their  risk  and  the  Corporation has not demanded
\ncontributions.  The letter issued by the Corporation was  without  concurrence
\nof the  Government and the Administrator.  It was due to mis-interpretation of
\nthe said G.O., for which  the  respondents  are  not  liable.    It  has  also
\ninstructed various Corporations to refund the amount so paid erroneously.\n<\/p>\n
                The said G.O.Ms.No.138, dated 10.5.1999, reads as follows:-
\n        “The  Employees  Pension  Benefit Scheme was introduced as a result of
\nthe agreement between the employees and the management  in  the  year  19  92.
\nThis applies  only  to the workmen.  But, there are about 900 Officers working
\nin the managerial cadre and they have requested the scheme to be  extended  to
\nthem.   The  employees  in the cadre of Assistant Engineer also come under the
\ncadre of ‘Award staff’.  Hence, they are entitled to  the  benefit  under  the
\nscheme.   When  they  get promoted, they go out of the cadre of ‘Award staff’.
\nYet, since they have already became members of the Scheme, they  can  continue
\nto pay  the  contribution.    Such  persons though entered into the managerial
\ncadre, they are eligible to get benefits under the scheme.  But, at  the  same
\ntime,  it  was  not extended to the persons, who were in the Officers cadre on
\n1.9.1992.  It is considered to extend the scheme to the Officers also.\n<\/p>\n
        (4) The Government directs that subject  to  the  conditions  referred
\nhereunder  the  Tamil  Nadu  State  Transport  Corporation  Employees’ Pension
\nBenefit Scheme be extended to the persons in the Officers  cadre  also.    The
\nconditions were that –\n<\/p>\n
(1) they shall contribute Rs.50\/- per month from 1.9.1992.
\n(2)  In  respect  of  workmen, including the Award staff, the Management would
\ncontribute Rs.1,000\/-.  In case of Officers  in  the  managerial  cadre,  they
\nshall pay Rs.1,000\/-.\n<\/p>\n
(3)  Persons  who  became  members  of the scheme as workmen on 1.9.1992, but,
\nlater promoted to the managerial cadre are permitted to continue in the scheme
\npaying the contribution of Rs.50\/- per month.”\n<\/p>\n
                4.  Subsequent to this Government Order, various  Corporations
\nsent  letters  –  a  few  letters  were  also filed along with the type set of
\npapers.  From this, it is seen that on behalf of the Managing Director,  Tamil
\nNadu  Transport  Corporation, Coimbatore, a letter has been sent to one of the
\npetitioners on 24.5.1999 informing him that the contribution at  the  rate  of
\nRs.50\/- per month together with Rs.1,000\/- as their own contribution “would be
\ndeducted  from  V  Pay  Commission arrears payable to him”, and on 15.7.1999 a
\nsimilar letter has been sent to pay the  balance  amount.    The  Metropolitan
\nTransport  Corporation ( Chennai Division-I) Limited had sent a letter stating
\nthat persons who retired after 1.9.1992 as an Officer would also  get  benefit
\nof the  scheme.    Based  on  such  letter,  those  officers  also  paid their
\ncontribution.  The learned counsel for the petitioners  submitted  that  these
\nletters  created  an expectation among the Officers that they are eligible for
\nthe benefits under the scheme.  Therefore, the respondents cannot go back from
\ntheir stand.\n<\/p>\n
                5.  In the impugned letter, the Government has stated that the
\nretirement benefits would apply only from 10.5.1999.  The  argument  that  the
\nscheme applied  to  the  Officers  from  1.9.1992 is not correct.  The learned
\ncounsel for the respondents submitted that the G.O.  is only prospective.   It
\nis  applicable  only to the persons in the Officers cadre on the date when the
\nGovernment Order came into force, and it would not be  applicable  to  persons
\nwho retired  from  service on the date of the G.O.  Therefore, the plea of the
\npetitioners cannot be accepted.\n<\/p>\n
                6.  The case of the petitioners is that the  benefits  of  the
\nWage  Settlement  under  Section  12(3)  of  the  Industrial Disputes Act were
\naccepted and was also extended  to  the  officers  cadre  by  the  Government.
\nExtension of the scheme means extension of the benefits.  So viewed, this G.O.
\nwhich confers the benefit to all the Officers who were in service on 1.9.1992.
\nSince  the  petitioners were members of service in Officers cadre on 1.9.1992,
\nthey are also eligible to get the benefits of the  scheme.    That  apart  the
\nTransport Corporations themselves deducted the contribution from 1.9.1992 from
\nthe  Pay  Commission  Arrears  and  any balance was directed to be paid by the
\npetitioners; and that was  also  paid  promptly.    Therefore,  it  created  a
\nlegitimate   expectation   in   the   minds  of  Officers\/petitioners  herein.
\nTherefore, the Doctrine of Promissory Estoppel would also apply in this  case.
\nUnder the Doctrine, when these petitioners were made to expect the benefits of
\nthe  scheme  by  their  conduct  and parties performed their duties as per the
\npromise, thereafter, the Department cannot go back from the promise.    In
\nsupport of his argument, he referred to the judgement of the Supreme Court  in
\nM.C.DHINGRA v..   UNION OF INDIA [(1996) 7 SCC 564 ].  In this case, a person,
\nwho was originally in a State service, later entered into the Central Service,
\nand circular permitted the computation of the previous service  for  grant  of
\npension  and  the  provision  in  the  circular  confining the benefit only to
\npersons retiring on or after the date of issuance of  the  circular  was  held
\narbitrary.   The  Court  held that a person retired earlier than the said date
\nwas also entitled to pro rata pension for previous service from the said  date
\nof circular.    In UNION  OF  INDIA v..  DEOKI NANDAN AGGARWAL [199 2 Supp (1)
\nSCC 323], the Supreme Court held that fixing a cut off  date  for  liberalised
\nscheme was held not permissible and it was made applicable to all persons.  In
\nR.L.MARWAHA v..    UNIONOF  INDIA [(1987) 4 SCC 31] the Supreme Court has held
\nthat pension scheme in autonomous body, which  was  made  applicable  only  to
\nthose  retired on or after issuing of Office Memorandum and denied the benefit
\nto those retired prior to that date, was held discriminatory and violative  of
\nArticle 14 of  the  Constitution.  In D.S.NAKARA v..  UNION OF INDIA [(1983) I
\nSCC 305], the Constitution Bench of  the  Supreme  Court  has  held  that  all
\npensioners  have  equal  right  to receive the benefits of liberalised pension
\nscheme.  The pensioners form a class as a whole and cannot be micro-classified
\nby an arbitrary, unprincipled and unreasonable eligibility criterion  for  the
\npurpose  of  grant of revised pension; Criterion of date of enforcement of the
\nrevised scheme entitling benefits of the revision to those retiring after that
\ndate while depriving the benefits to those retiring prior to  that  date,  was
\nheld to  be  violative of Article 14.  It further held that the specified date
\nis to be retained only for the purpose of re-computation of pension  of  those
\nretired earlier to it.  No arrears can be claimed by such pensioners.  In this
\ncase,  the  Supreme  Court  also held that reading down the provision does not
\namount to judicial legislation and hence  unconstitutional  portion  which  is
\nunrelated to the object sought to be achieved, can be severed and omitted from
\notherwise constitutional  provision  by  reading down the provisions.  It also
\nheld that the Doctrine of Severability  need  not  only  limit  the  scope  of
\nlegislation, it can in effect, enlarge the scope of the impugned measure.  The
\nlearned  counsel  submitted  that  from  the principles evolved by the Supreme
\nCourt in these decisions, it is clear that  fixing  of  a  cut  off  date  for
\npayment of pension is not legal.  Hence the impugned letter is to be quashed.\n<\/p>\n
                7.  A  portion  of  G.O.Ms.No.138,  dated  10.5.1999.    is as
\nfollows:\n<\/p>\n
@fPH;f;fz;l epge;jidfSf;Fl;gl;L @jkpH;ehL khepy nghf;Ftuj;Jf;fHf bjhHpyhsh;fs;
\nXa;t{jpa  eyj;jpl;l;ij@   nghf;Ftuj;Jf;fHfj;jpd;   nkyhsh;   bjhFjpapy;   cs;s
\nmYtyh;fSf;Fk; ePl;of;fyhbkd muR ,jd;tHp MizapLfpwJ\/@
\nThe  above  portion reads that the Government hereby order that the Tamil Nadu
\nState Transport Corporation Employees Pension Benefit Scheme  be  extended  to
\nthe   Officers   of  the  Transport  Corporations  subject  to  the  following
\nconditions.  In the impugned letter, the word “cs;s@ in  the  said  G.O.    is
\ninterpreted as the person “serving” on the date of the Government Order.  From
\nthe decisions of the Supreme Court it is seen that under similar circumstances
\nfixing of  a  cut  off  date  is  not legal.  It is true that reading down the
\nGovernment Order would enlarge  its  scope.    As  per  the  decision  of  the
\nConstitutional  Bench of the Supreme Court (referred above) such a enlargement
\nis permissible.\n<\/p>\n
                8.  A perusal of the G.O.  makes it  clear  that  the  pension
\nscheme  which  was  made  applicable  from  1.9.1992  for  the Award staff was
\nextended also to the persons in the Officers cadre.  The Government Order  has
\ntaken  into account such of those persons, who were members of the award staff
\non 10.5.1992, but, later entered into the Officers cadre.  The G.O.  made  the
\nscheme applicable  to  such  Officers also.  With this background, if the G.O.
\nconsidered it is clear that the G.O.  extends the scheme to the Officers also,
\nsubject to the conditions specified thereunder.  From this,  it  appears  that
\nthe  said  word  “cs;s” means as the persons who were in the Officers cadre on
\nthe date when the pension scheme itself come into force i.e.  1.9.1992.    The
\nreading of  G.O.    in  its  entirety  would convey a meaning that the pension
\nscheme which was made applicable from 1.9.1992 to the Award staff was extended
\nalso to the Officers cadre.  When the scheme had come into force  on  1.9.1992
\nand  when that was extended to Officers, it cannot be said that the scheme was
\nextended only prospectively from the date of such extension, namely, from  the
\ndate on which  the  G.O.   was issued.  Though the literal meaning of the word
\n@cs;s@ would mean that the Officers, who “are” in service, yet, on reading the
\nG.O.  as a whole, bearing in mind the purpose for which it was passed  and  on
\nthe background of acceptance of representation made by the Officers, it has to
\nbe interpreted  as “1.9.1992y; cs;s@ i.e.  those persons who “were” in service
\non 1.9.1992.  The word “1.9.1992” has to be read along with the  word  “cs;s@.
\nOnly such interpretation would be in consonance with the object of issuance of
\nthe said Government Order.\n<\/p>\n
                9.   Further,  the  Officers  were directed to pay the monthly
\ncontribution from 1.9.1992 and Rs.1,000\/-.  If the intention of the Government
\nwas to make the pension scheme applicable to the Officers only from 10.5.1999,
\nthen,  there  was  no  need  to  direct  the  Officers\/  petitioners  to   pay
\ncontribution from  1.9.1992.   To the Award staff, the scheme was applied from
\n1.9.1992.  They were directed to pay contribution only from that date onwards.
\nThey were not directed to pay contribution from an earlier date.    Therefore,
\nfrom the condition that the Officers shall pay contribution from 1.9.1992 till
\nthe  date  of  the Government Order, would mean only that the intention of the
\nGovernment Order was to make it applicable to all the Officers from  1.9.1992.
\nThat  was  understood correctly by various Heads of the Transport Corporations
\nand that was why they  have  deducted  such  amount  payable  as  contribution
\ntowards  this  scheme  from  and  out  of  the  Pay Commission arrears and the
\nindividuals were also directed to pay the balance if any.\n<\/p>\n
Therefore, the impugned letter that the scheme is  applicable  only  from  the
\ndate  of  Government  Order,  namely,  10.5.1999,  in case of Officers, is not
\nlegally sustainable and hence, the interpretation given by the respondents  in
\nthe letter is not acceptable.\n<\/p>\n
                10.   The  writ petitioners have challenged the letter written
\nby the respondents  and  they  have  also  prayed  for  issuance  of  writ  of
\nCertiorarified  Mandamus  to quash the letter and to direct the respondents to
\npay the pension as per the pension scheme.  It has to be  mentioned  that  the
\nletter  need not be and cannot be quashed as the letter is only a statement by
\nOfficers.  It  is  not  a  Government  Order.    It  may,  at  the  most,   be
\nclarificatory of the  G.O..  But, such clarification is erroneous.  Therefore,
\nthe prayer of Certiorarified Mandamus as such need not be granted.  Under  the
\ncircumstances,  a  Writ  of  Mandamus  is  issued  to consider the case of the
\npetitioners in the light of this judgment, ignoring the impugned letter.   The
\nrespondents  are  directed  to pass appropriate Orders within a period of four
\nweeks from the date of receipt of a copy of the Order.\n<\/p>\n
                11.  With the above direction, the writ petition  is  disposed
\nof.  No costs.\n<\/p>\n
5.10.2004 <\/p>\n
Index:  Yes
\nInternet:Yes<\/p>\n
pb<\/p>\n
To\n<\/p>\n
1.  The State of Tamil Nadu
\nrep by the Secretary to Govt.,
\nTransport Dept.,
\nFort St.  George
\nChennai 9.\n<\/p>\n
2.  The Administrator
\nTamil Nadu State Transport Corporation
\nEmployees Post Retirement Benefit Fund
\nC\/o.  Transport Development Finance <\/p>\n
Corporation
\n93, Greams Road
\nChenai 6.\n<\/p>\n
3.  The Tamil Nadu State Transport Corporation
\nCoimbatore (Division I) Ltd.,
\nCoimbatore,
\nrep by its Managing Director
\n37, Mettupalayam Road
\nCoimbatore.\n<\/p>\n
4.  The Metropolitan Transport Corporation
\n                Limited
\nrep by its Managing Director
\nPallavan Salai
\nChennai 2.\n<\/p>\n
5.  The Tamil Nadu State Express
\nTransport Corporation Ltd.\n<\/p>\n
rep by its Managing Director
\nPallavan Salai
\nChennai.\n<\/p>\n
6.  The Tamil Nadu State
\nTransport Corporation
\nKumbakonam (Division I) Ltd
\nrep by its Managing Director
\nKumbakonam.\n<\/p>\n
7.  The Tamil Nadu State
\nTransport Corporation Ltd.\n<\/p>\n
Villupuram (Division II) Ltd.\n<\/p>\n
rep by its Managing Director
\nVellore.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Ethendra Babu vs The State Of Tamil Nadu on 5 October, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05\/10\/2004 CORAM THE HONOURABLE MR. JUSTICE A.K. RAJAN Writ Petition No.43396 of 2002 1. S.Ethendra Babu 2. M.Jayaraj 3. M.Rajkumar 4. R.Rathnasabapathi 5. R.Ganesan 6. P.Gangadaran 7. M.Venkatakrishnan 8. N.Kalyanam 9. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-175250","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.Ethendra Babu vs The State Of Tamil Nadu on 5 October, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-ethendra-babu-vs-the-state-of-tamil-nadu-on-5-october-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Ethendra Babu vs The State Of Tamil Nadu on 5 October, 2004 - 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