2025:MHC:1902W.P.(MD) No.3059 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved On : 28.07.2025

Pronounced On : 08.08.2025

CORAM:

THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE

W.P. (MD) No.3059 of 2017

and

W.M.P.(MD)No.2436 of 2017

1.K.Gunasekaran (Died)

S/o.R.Kamatchi

23-C, Agraharam,

Ramarkovil Street,

Palanganatham,

Madurai -3.

2.Devasena,

W/o.K.Gunasekaran,

3. Suresh Babu,

S/o.K.Gunasekaran,

4. Chitra Devi,

D/o K.Gunasekaran,

5.Rajeshkumar,

S/o.K Gunasekaran,

Petitioners 2 to 5 are residing at:

23-C, Agraharam, Ramarkovil Street,

Palanganatham,

Madurai 625 003.

(Petitioners 2 to 5 are substituted vide court order

dated 20.02.2025 in WMP(MD)No.3413/2025

in WP(MD)No.3059/2017 by SSYJ) ... Petitioners

Vs.

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W.P.(MD) No.3059 of 2017

1.The Management of Tamil Nadu

State Transport Corporation

(Madurai) Ltd.,

Represented by its

Managing Director,

Bye Pass Road,

Madurai - 10.

2.The General Manager,

Tamil Nadu State Transport Corporation

(Madurai) Ltd.,

Mddurai Region,

Madurai.

3.The Administrator,

Tamil Nadu State Transport Corporation

Pension Fund Trust,

Thiruvalluvar House,

Pallavan Salai,Chennai – 2. ... Respondents

PRAYER in W.P.:

To issue a Writ, order or direction or any other writ in the nature

of a Writ of Certiorarified Mandamus calling for the records pertaining to

the impugned order of the 2

nd

respondent in Ref:Koo.Sa.Sattam/W.P.No.

20982/2014 dated 27.06.2016, quash the same and consequently

directing the respondents to sanction and grant superannuation pension

to the petitioner by adding/counting the period of service from the date of

dismissal i.e., with effect from 23.07.1983 to the date of reinstatement

i.e., till 29.05.2010 along with the admitted period of service ordered to

be counted for the purpose of pension in W.P.(MD)No.20982/2014 and

to direct the respondents to pay him monthly pension, gratuity,

commuted value of pension, leave salary and all other attendant benefits

with arrears payable to him with effect from 01.04.2014 together with

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W.P.(MD) No.3059 of 2017

suitable rate of interest payable from 01.04.2014 to till the date of actual

payment and pass such further or other orders as this Hon'ble Court may

deem fit and proper in the circumstances of the case and thus render

justice.

PRAYER in W.M.P:

To dispense with the production of the original impugned order in

Ref :Koo.Sa.Sattam/W.P.No.20982/2014 dated 27.06.2016 passed by the

2

nd

respondent pending disposal of the above writ petition and thus

render justice.

APPEARANCE OF PARTIES:

For Petitioner : Mr.A. Rahul, Advocate

For Respondents : Mr.S.C.Herold Singh, Standing Counsel

for R1 & R2

: Mr.L.Jeen Felix, Advocate for R3

J U D G M E N T

Heard.

2. The original writ petitioner is no longer alive. At the time of

instituting the writ petition, he was 6l years old and had filed it on

21.02.2017, nearly three years after his retirement, dated 31.03.2014.

He passed away on 16.05.2017 during the Pendency of the proceedings,

and his legal representatives have since been brought on record.

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W.P.(MD) No.3059 of 2017

3. The original petitioner was employed as a Conductor in the 2

nd

Respondent Transport Corporation. In this writ petition, he assailed the

order dated 27.06.2016 of the 2

nd

Respondent, whereby his request to

reckon the period from his dismissal on 23.07.1983 until his reinstatement

on 29.05.2010 for pensionary benefits was rejected. The rejection was

premised on the ground that, as the Labour Court had denied him back

wages, the said period could not be counted towards qualifying service for

pension.

4. It is, therefore, necessary to examine the issue in light of the

award passed by the Labour Court, Madurai, in I.D. No. 44 of 2000. The

original petitioner was appointed as a Conductor in March 1977, and his

services were confirmed on 01.08.1979. In 27.07.1983, disciplinary

proceedings were initiated against him for having collected fare from

passengers without issuing tickets, thereby causing a loss of Rs. 26.55 to

the Corporation. Following an inquiry, he was dismissed from service by

order dated 04.01.1984.

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W.P.(MD) No.3059 of 2017

5. At the relevant time, a bonus dispute was pending before the

Industrial Tribunal, Chennai, in I.D. No. 62 of 1982. During this period,

the Transport Corporation filed a petition under Section 33(2)(b) of the

Industrial Disputes Act, seeking the Tribunal's approval for the petitioner's

dismissal. This petition was numbered as A.P. No. 10 of 1984. The

Industrial Tribunal dismissed the approval petition, with the result that the

petitioner's dismissal was rendered ineffective, and in law, he was deemed

never to have been dismissed from service.

6. Aggrieved by the Tribunal's order, the 2

nd

Respondent filed W.P.

No. 12278 of 1985 before this Court challenging the same. However,

during the pendency of the writ petition, and without prejudice to its

contentions, the original petitioner was reinstated as a Conductor with

effect from 19.04.1985. In the meantime, the respondent Corporation

underwent bifurcation into two separate entities, and the petitioner was

absorbed into the services of the Corporation headquartered at Dindigul.

7. Following his reinstatement and absorption into the new

Corporation, the petitioner was granted his first annual increment on

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W.P.(MD) No.3059 of 2017

23.04,1986. Upon completion of five years of service, his performance

was reviewed on 01.08.1991 for the purpose of granting a higher pay

scale. Subsequently, the writ petition filed by the respondent Corporation

in W.P.No.12278 of 1985 was taken up for hearing before this Court.

Without entering into the merits, this Court remanded the matter to the

Tribunal for fresh consideration.

8. The order dated 02.01.1996 passed by this Court reads as

follows:

“The arguments of the learned Advocate of both

sides are heard.

2. The learned Advocate for the 2

nd

respondent

stated across the Bar that he is not arguing the matter on

merits and sought for remand. Having considered the

entire materials available on record, I am of the clear

opinion that it is just and proper to accept the request of

the learned Advocate for the 2

nd

respondent to remand the

matter to the 1

st

respondent for fresh disposal according to

law.

3. In the result, this Writ Petition is allowed and the

order passed by the 1

st

respondent in Petition No. 10 of

1984 in I.D. No. 62 of 1982 dated 21.01.1985 is hereby set

aside and the matter is remanded to the 1

st

respondent for

fresh disposal according to law after giving an opportunity

to both sides; but in the circumstances without costs."

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W.P.(MD) No.3059 of 2017

9. Pursuant to the remand, the Industrial Tribunal, Chennai, took up

the matter for fresh disposal in terms of this Court's directions. However,

as the original petitioner, being the respondent in the approval petition,

failed appear, he was set ex parte in A.P. No. 10 of 1984, By order dated

24.02.1997, the Tribunal granted approval for his dismissal. Relying on

the said order, the 2

nd

Respondent Corporation, by proceedings dated

25.02.1998, dismissed the petitioner from service with retrospective effect

from 23.07.1983, the date of his initial suspension.

10. Since the grant of approval for dismissal under Section 33(2)(b)

does not preclude the raising of a regular industrial dispute under Section

2A(2), the petitioner initiated conciliation proceedings before the

Government Labour Officer. Upon receipt of the failure report, he filed a

claim statement before the Labour Court, Madurai. The dispute was

registered as I.D.No. 44 of 2000, and notice was issued to the Corporation.

The Labour Court found that the domestic inquiry had been conducted in

accordance with law and that the charges against the petitioner stood

proved.

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W.P.(MD) No.3059 of 2017

11. However, in exercise of its powers under Section 11A, the

Labour Court, in its award dated 05.08.2009, held as follows:

“kDjhuUf;F toq;fg;gl;Ls;s jz;lidia

ftdj;jpw;F nfhs;Sk;nghOJ kDjhuUf;F

toq;fg;gl;Ls;s jz;lid kpfTk; mjpfkhdJ

vd;gjhfNt jPh;khdpf;f Ntz;bAs;sJ.

kDjhuUf;F toq;fg;glf;$ba Ntiy ,oe;j

ehl;fSf;fhd Cjpa ,og;Ng NghJkhd jz;lid

vd;gjhf jPh;khdpj;J kDjhuUf;F kPz;Lk; gzp

njhlh;r;rpAld; $ba gzp toq;Ftijg; nghWj;J

,e;j kDit gFjpahf mDkjpf;fyhk;

vd;W ,e;jg; gpur;rpidfSf;F jPh;T fhz;fpd;Nwd;.

9. Kbthf ,e;j njhopy; jfuhW gFjpahd

mDkjpf;fg;gLfpd;wJ. kDjhuUf;F vjph;kDjhuh;

2 khjq;fSf;Fs; kPz;Lk; gzp njhlh;r;rpAld;

$ba gzp toq;f Ntz;Lk; vd;W jPh;Tk;

gpwg;gpf;fg;gLfpd;wJ. kDjuhh; kDtpy;

NfhhpAs;s ,ju ghpfhuq;fisg; nghWj;J kD

js;Sgb nra;ag;gLfpd;wJ. nryT

njhif ,y;iy.”

12. Thus, while directing reinstatement without back wages, the

Labour Court made it clear that the original petitioner was entitled to

continuity of service. The 2

nd

Respondent Corporation did not challenge

this award by way of a writ petition. On the contrary, by order dated

29.05.2010, it reinstated the petitioner. The order stated as follows:

“jpU.K.FzNrfud;> Kd;dhs; elj;Jdh;>

60387 Njdp fpis vd;gth; ghh;itapy; fz;Ls;s

njhopyhsh; ePjpkd;w jPh;g;G kw;Wk; epUthf Fok

jPh;khdk; mbg;gilapy; 29.05.2010-e; Njjp Kjy;

kPz;Lk; gzpj; njhlh;r;rpAlDk; gpd;dPl;Lr; rk;gsk;

,y;yhkYk; (With continuity of service but without

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W.P.(MD) No.3059 of 2017

back wages) gzp epakdk; nra;ag;gLfpwhh;.

,th; ,f;fofj;jpy; mt;tg;NghJ

eilKiwapy; cs;s rl;l jpl;lq;fSf;F

cl;gl;L gzpGhpa Ntz;Lk;.”

13. Thereafter, the petitioner served in the Corporation without any

complaint and retired on attaining the age of superannuation on

31.03.2014. Upon being denied pension, he filed W.P.(MD) No. 20982 of

2014 seeking a direction to the Corporation for its grant. This Court, by

order dated 12.04.2016, passed the following:

“8. So far as the disputed question viz.,

"continuity of service" and other benefits are concerned,

it is open to the petitioner to make a representation to

the second respondent and the second respondent shall

consider and dispose of the same within a period of four

weeks from the date of receipt of such representation.”

14. Pursuant to the said direction, the 2

nd

Respondent passed the

impugned order, assigning the following reasons for declining to grant

relief :-

“,e;epiyapy; ghh;it 2-y; fhZk; jq;fsJ

kD jkpo;ehL muR Nghf;Ftuj;J fof Copah;fs;

Xa;T+jpa ek;gfk; tpjp vz;.13 [C] “if there is non-

contributory period during the service it shall not be

counted for arriving the actual service”-d; gb jhq;fs;

gzpGhpahj fhyj;ij [Non-employment period]

Xa;T+jpa fzf;fPl;bw;F vLj;Jf;nfhs;s ,ayhJ

vdj; njhptpj;Jf; nfhs;fpNwhk;. VdNt jq;fsJ kD

cah;ePjpkd;w cj;jutpw;fpzq;f (Accordingly your

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W.P.(MD) No.3059 of 2017

Representation is disposed off) Kbj;J

itf;fg;gLfpwJ.”

15. Challenging the said order, the present writ petition has been

filed. It is unclear why the respondents have chosen to create difficulties

for the original petitioner, and, after his demise, for his legal

representatives. In view of the award passed by the Labour Court, there

can be no dispute that the petitioner's service is to be treated as

continuous; accordingly, he is entitled to reckon his service from 1997

until his retirement in 2014.

16. In W.P.(MD)No.20982 of 2014, upon notice from this Court,

the respondent filed a counter affidavit dated Nil, March 2016. In

paragraph 6 thereof, the 2

nd

Respondent set out the following reason for

denying pension:

"6. I state that the Petitioner had rendered a total

service of 7 years 9 months and 24 days only. Whereas, the

Tamil Nadu State Transport Corporation Pension Fund

Rules have filed a Minimum 10 years of qualifying service

for eligibility of Pension. As per TNSTC Employees

Pension Fund Trust Rule No.21 the Petitioner is not eligible

for monthly pension and commutation. The Petitioner's

Service Details as follows:

Date of service 01.08.1979

Date of Dismissed 23.07.1983

Date of Reinstatement 23.04.1985

Date of Stopped from service 25.02.1998

Date of Reinstatement 29.05.2010

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W.P.(MD) No.3059 of 2017

Date of Superannuation31.03.2014

Total Eligibility Service7 Years, 9 Months,

24 days

17. The calculation made by the respondent is wholly untenable. It

is pertinent to note that the original petitioner was appointed in 1977 and

confirmed in 1979. Although he was sought to be dismissed by order

dated 04.01.1984 with effect from 23.07.1983, an industrial dispute was

then pending before the Industrial Tribunal, Chennai, leading to the filing

of an approval petition seeking confirmation of his dismissal. That petition

was dismissed on 21.01.1985, which in law meant that the petitioner was

deemed to have continued in service as though no order of dismissal had

ever been passed.

18. Although the respondent Corporation had filed W.P. No. 12278

of 1985, the petitioner was reinstated in service by order dated 19.04.1985,

albeit without prejudice to the outcome of the writ petition. Throughout

the pendency of the writ proceedings, the petitioner continued in service

and drew his wages. In fact, following his reinstatement, the respondent,

while treating it as fresh employment, granted him his first annual

increment on 23.04.1986 and subsequently reviewed his service for the

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grant of senior scale, which was conferred on 01.08.1991.

19. Even after the writ petition was allowed by order dated

02.01.1996, the respondent continued the petitioner in service, pending the

outcome of the Tribunal's fresh decision, which was ultimately rendered

on 24.02.1997. Following the approval order, the respondent once again

dismissed the petitioner on 25.02.1998. This means that from 19.04.1985

until 25.02.1998, the petitioner had in fact worked for the Corporation and

earned his salary.

20. As already noted, in the dispute raised by the petitioner, the

Labour Court in I.D. No. 44 of 2000 passed an award in his favour,

directing not only reinstatement but also continuity of service, though

without back wages. Accordingly, during the so-called period of

non-employment, the petitioner was, save for brief intervals, in service and

drawing wages; such service cannot lawfully be ignored by the

respondent. In any event, the Labour Court's award granting continuity of

service from the original date of dismissal until reinstatement is binding

on the respondent. Following his restoration, the petitioner served until his

retirement in 2014. It is, therefore, wholly unjustified for the respondent to

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W.P.(MD) No.3059 of 2017

deny him continuity of service for the entire period.

21. In this context, learned counsel for the petitioner placed

reliance on the judgment of a Division Bench of this Court in W.A. No.

2302 of 2021, dated 03.02.2022, It is apposite to extract the following

passages from paragraphs 5.6 and 8 thereof:

“5.6. When the petition was taken up for final

hearing on 15.03.2021, it was disposed of without any

interference in the impugned order (rejecting approval

application). Since the workman would be entitled to all

consequential benefits, considering the concession given

on behalf of the workman, learned Single Judge ordered

that the workman shall not be entitled to back wages for

the period from 25.03.2013 to 19.07.2015 and further

providing that the said period shall be counted as duty

period for all purposes, including for the purpose of

calculation of pension. The payment was ordered to be

made within a period of six weeks.

8. ..... Once the action of the Management is held to

be illegal, the said action is illegal for all purposes and for

all consequences. In a given case, either Labour Court or

the Writ Court, in the facts of the case may exercise

discretion, on permissible parameters, of granting / not

granting back wages but exercise of that power under no

circumstances can be read as exclusion of that service as

non-pensionable service as sought to be canvassed on

behalf of the appellant / Management. We make it clear

that even in those cases, where back wages is not granted

for valid reason, the very fact that the termination was

held to be illegal, the period during which the workman

had remained out of employment for no fault attributable

to him, has to be counted as pensionable service unless it

is so specifically ordered / provided by the Court. Even

with the aid of stipulation 10 e as quoted above,

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W.P.(MD) No.3059 of 2017

permitting the Management or the Pension Trust to

exclude the said period as non pensionable service would

result in acceptance of the said termination to be valid for

limited purpose which is already held to be illegal. No

One can be permitted to take advantage of / benefited

from his Own wrong. The workman can not be asked to

suffer, for not being in the employment for the fault of his

employer. Keeping this in view, we find that, harmonious

reading of all the decisions relied by learned advocate for

the Pension Trust would lead to this conclusion only. So

far financial constraints are concerned, it is a matter to be

reconciled by the Pension Trust and the Management of

the respective Transport Corporations. Such

administrative difficulties can not be permitted to be

stretched to the extent of reduction of pension for no fault

on the part of the workman."

22. In view of the foregoing, the writ petition is allowed. The

respondents are directed to reckon the entire service of the original

petitioner (now deceased) for the purpose of computing pension and other

attendant benefits and to extend such benefits to the present petitioners,

who are his legal heirs. The respondents shall pass appropriate orders

within 30 days from the date of receipt of this order and duly communicate

the same to the petitioners. No costs. Consequently, W.M.P.(MD)No.

2436 of 2017 is closed.

08.08.2025

Index: Yes / No

Speaking Order / Non-speaking Order

Neutral Citation : Yes / No

LS

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Copy to:

1.The Management of Tamil Nadu

State Transport Corporation

(Madurai) Ltd.,

Represented by its

Managing Director,

Bye Pass Road,

Madurai - 10.

2.The General Manager,

Tamil Nadu State Transport Corporation

(Madurai) Ltd.,

Mddurai Region,

Madurai.

3.The Administrator,

Tamil Nadu State Transport Corporation

Pension Fund Trust,

Thiruvalluvar House,

Pallavan Salai,

Chennai – 2.

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W.P.(MD) No.3059 of 2017

DR. A.D. MARIA CLETE, J.

LS

Pre-delivery Judgment made in

W.P. (MD) No.3059 of 2017

08.08.2025

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