IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :02.09.2022

CORAM:

THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD

Sub. Appl.No.98 of 2019 in Cont.P.No.830 of 2014

in W.P.No.34530 of 2012

The State Transport and Transport Corporations,

Retired Employees Welfare Association,

(Reg.No.127/ 2001), Pallavan Salai, Chennai 600 002.

Represented by its President,

A.Raymond.

… Petitioner

Vs

1.P.W.C.Davidar I.A.S.,

The Additional Chief Secretary to Government,    Secretariat, Fort St.George,    Chennai – 600 009.

2.Muniappan,

The Administrator,

Tamil Nadu State Transport Corporation

Employees Pension Fund Trust,    Thiruvallur House, Pallavan Salai,    Chennai 600 002.

… Respondents

PRAYER: This Sub-Application filed under Contempt Jurisdiction praying to re-open the contempt Petition in C.P.No.830 of 2014 dated 09.12.2014 .

For Petitioner        :  Mr.A.R.L.Sundaresan

Senior Counsel  for Mr.G.Sankaran

For Respondents   :  Mr.R.Ramanlal  Additional Advocate General  assisted by Mr.C.Selvaraj  Government Advocate

ORDER

This Sub-Application filed to re-open the contempt Petition in C.P.No.830 of

2014 dated 09.12.2014.

2.The case of the petitioner is that the consequent orders passed in the Writ

Petition and the Contempt Petition No.830 of 2014, the revision of the Dearness Allowance as sanctioned by the Government has not been extended to the pensioners and the family pensioners by the 2^nd respondent except for the revision of the Dearness Allowance taken place in second half of the year of 2015. Subsequently, four revision of DA’s had taken place. Whereas, the revisions and enhancement of Dearness Allowance has not been implemented by the 2^nd respondent nor any decision taken by the 2^nd respondent Trust and accordingly, the petitioner’s namely Pensioner’s/ Family pensioner’s has been deprived of their pensionary benefits as sanctioned by the

Government with reference to the periodical enhancement of Dearness Allowance. An Advocate notice was sent to the respondents on 11.11.2017 by stating that non-payment of enhancement of Dearness Allowance as ordered by the Government will be resulting in violation of the orders passed in the Contempt Petition No.830 of 2014 dated 09.12.2014 in as much as this Court issued directions that whenever the orders issued by the 1^st respondent for enhancement of Dearness Allowance to the Government employees, subject will be placed before the Board of Trustees and the resultant Dearness Allowance would be made. However, no such exercise has been carried out by the 2^nd respondent based on which the pensioners and family pensioners of the State Transport Corporation have been deprived of their pensionary benefits though it is granted by the State Government.

3.The retired pensioners and family pensioners of the State Transport Corporations are entitled for revision of Dearness Allowance as and when it is ordered by the Government. The undertaking given before this Court that the revision of Dearness Allowance  will be granted as and when the orders passed by the Government by placing the same before the Board of Trustees. However, without compliance of the same, the 2^nd respondent issued a reply notice dated 21.11.2017 by stating that the order passed by this Court in the Contempt Petition only relates to substitution of the procedure of seeking approval from the Government with a new procedure by which the approval to be obtained from the Board of Trustees in order to avoid delay, whereas, the corpus of TNSTCPF is almost exhausted the payment of monthly pensioners is the challenge and there is on external fund sources or internal fund generation available to adverse for increase in the rate of Dearness Allowance and accordingly, it is informed that there is no scope to which grant of enhancement of Dearness Allowance to the retired pensioners/ family pensioners.

4.In the reply submitted by the 2^nd respondent dated 21.11.2017, the orders passed in the Contempt Petition in Cont.P.No.830 of 2014 dated 09.12.2014 has been grossly violated since the orders of the State Government granting enhancement of Dearness

Allowance have not been placed before the Board of Trustees for granting enhanced

Dearness Allowance to retired pensioners/family pensioners of State Transport Corporation of the employees of State Government have been given the benefit of revision of Dearness Allowance. Further, the persons who are in service in Transport Corporation given the benefit of revision of Dearness Allowance as per the Government orders. While so, there is an deliberate and intentional violation of the orders of this Court, the 2^nd respondent has not even placed the Government orders relating to revision of Dearness Allowance in the Board of Trustees to sanction the same in favour of pensioners and family pensioners not even placed the Government orders relating to revision of Dearness Allowance in the Board of Trustees to sanction the same in favour of pensioners and family pensioners but giving with a generalized state with ulterior motive only to deny the pensionary benefits to the pensioners/ retired pensioners. Hence, the petitioner Union has come forward with the present Sub Application.

5.The learned Senior Counsel appearing for the petitioner Association submitted that there are 86,000 pensioners and 20,000 family pensioners who have been deprived of the enhanced Dearness Allowance as announced by the Government. The learned senior counsel appearing for the petitioner Association submitted that a 12(3) Settlement dated 13.04.2015 was also arrived between the Government and the

Workers.

Clause 2 of the Settlement:

Dearness Allowance: The Dearness Allowance which are given to the

Government employees by way of Government order, the same will be extended to the

Transport Employees and the same also will be disbursed to the employees of the

Transport Corporation immediately.

6.The learned senior counsel appearing for the petitioner Association further drew the attention of this Court to the 12(3) Settlement dated  04.01.2018 in which the

Clause 41 is extracted hereunder:-

“(a)if there is any deficit in the Tamil Nadu State Transport

Corporation Employees Pension Fund Trust, the deficit will be paid by the Government and action will be taken to pay the pensionary benefits to the employees within a stipulated time.”

7.In the above clause, it is clearly mentioned that any deficit in Tamil Nadu State

Transport Corporation Employees Pension Fund Trust, the deficit will be paid by the Government.

8.In that Clause 37, which deals with pension, it is mentioned that

“(a)from 01.09.2010 for the pensioners who have retired prior to 01.09.2010 and the pensioners who retired on 01.09.2010 that on the basis of the pension 15% will be enhanced from the month of April, 2015.

(b)If there is any deficit in the Tamil Nadu State Transport Corporation Employees Pension Fund Trust, then the State Government will pay the said deficit.”

9.In the Status Report dated 21.02.2022, with regard to the paragraph 14 of the Report, it was stated that the Government have constituted a Preliminary Committee to analyise the possibilities for improving the source of fund to strengthen the corpus of employees pension fund trust for which they require six months time. Since, thousands of the pensioners have been waiting for the enhancement of Dearness Allowance, this Court called upon the respondents to expedite the decision referred to in paragraph 14 of the Status Report and file another Status Report on the steps taken by 04.04.2022 and the Status Report shall also indicate the possible time require for the disposal of the enhanced DA to the pensioners. In the same Status Report, it was mentioned that the funds available in the corpus of the employees pensioners trust have been eroded, the Employees Pension fund trust and all the State Government undertakings were not in a position to settle the terminal benefits. Infact, the Government have been providing funds through subsidies and loans to dispose the terminal benefits to the tune of Rs.7,854.48 Crores for the employees who retire from the State Transport undertakings for the period from 2017 to 2021. In fact, the Government itself did not allow the Dearness Allowance enhancement to the Government employees due to COVID

situation.

10.It is also further stated in the Status Report that it is the responsibility of the Tamil Nadu State Transport Corporation Employees Pension Fund Trust to take a decision of the payment of the enhancement of Dearness Allowance for the pensioners. The policy may be to adopt the Government Dearness Allowance rates but, the disbursement is subject to availability of the funds in the trust to provide for the Dearness Allowance enhancement to the pensioners. If the funds are not available in the trust, it is not possible for the Government to support employees pension fund trust for the additional fund due to the enhancement of Dearness Allowance. The Government has not provided Dearness Allowance hike even for its serving employees for few months because of the stressed financial position due to COVID pandemic. In this Scenario it is not possible for the State Government to provide funds for Dearness Allowance enhancement of the Transport Corporation.

11.The learned senior counsel for the petitioner Association further submitted a copy of the G.O.Ms.No.257 Finance (Pension) Department, dated 18.08.2022, in which the enhancement of Dearness Allowance to the pensioners and the family pensioners, revised rates admissible from 01.07.2022 by revising the rate of enhancement of DA from 31% to 34% to the State Government employees and the teachers from 31% to 34% with effect from 01.07.2022.

12.The learned senior counsel for the petitioner Association further submitted that the Dearness Allowance is not paid to the Transport employees right from the second half of the year, 2015 to till date ie., for the past seven year. Whereas, other

Departments are being paid. It is a clear case of discrimination and in violation of the

Article 14 of the Constitution of India. He submitted that in regard to the arrears of the

DA for seven years which are payable to the Transport Employees may be paid by the

Government in installments.  But, in regard to the prospective enhanced Dearness Allowance the same may be paid from November, 2022. Since, thousands of pensioners and family pensioners are being affected due to non-payment of the Dearness Allowance, which they are legally entitled to and depriving the same to them is not at all justified.

13.He further submitted that a Settlement under 12(3) of the Industrial Disputes

Act, 1947, between the Transport employees and the Government and the same is called

14^th Pension Settlement dated 24.08.2022. But even in that the payment of the Dearness Allowance to the retired employees have not been considered except this all other issues have been included in the Agenda and the Settlement has been arrived between the laborers Union and the Government.

14.The respondents filed an additional Status Report dated 04.04.2022. For better appreciation the relevant portion of the said Status Report is extracted hereunder:

“3.I most humbly submit that the Government has constituted a preliminary committee to analyse the possibilities for improving the source of fund to strengthen the corpus of the Employees’ Pension Fund Trust and other  related issues of the pensioners and not to enhance the dearness allowance to the pensioners/ family pensioners.

4.Isubmit that the Administrator, Tamil Nadu State Transport Employees’ Pension Fund Trust, Chennai has convened a first meeting of the Committee on 17.03.2022 at 3.00 p.m. under the Charimanship of the Principal Secretary, Transport Department, Chennai with all the members of the said Committee to analyse the possibilities for improving the source of fund to strengthen the corpus of the Employees’ Pension Fund Trust. I further submit that various suggestions and recommendations were discussed by the representatives of Four Associaton along with the Officials of Tamil Nadu State Transport Corporations in the said meeting.

5.Irespectfully submit that the Administrator, Tamil Nadu State Transport Employees’ Pension Fund Trust, Chennai has conducted only one meeting i.e. 17.03.2022. It requires minimum six months period to conduct various meetings with all the members of the said Committee for submitting its report for improving the source of fund to strengthen the corpus of the Employees’ Pension Fund Trust. Hence, the Government requires minimum six months period to conduct various meetings with all the members of the Committee for submitting its report.”

15.The learned Additional Advocate General further submitted that the severe financial crunch is the reason for not paying the Dearness Allowance to the Transport employees. If this is true, then this Court wonders how the State Government has announced the enhancement of Dearness Allowance from 31% to 34% to the State Government employees and the Teachers  vide the G.O. stated supra. There is absolutely no justification on the part of the Government for depriving the Dearness Allowance only to the State Transport Corporation.

16.He further submitted that the enhanced Dearness Allowance are being paid to the other Departments/ Public Sector Undertakings/ Autonomous Bodies since they have adequate funds of their own and the number of employees are also less and the Dearness Allowance amount for each Department/ Public Sector Undertakings/ Autonomous Bodies/ Local Bodies/ Co-operative Institutions will be approximately four to five crores each month. But in the case of the payment of enhanced Dearness

Allowance to the State Transport Employees is 81Crores per month and the State Government at present is not in a position to pay the same due to severe financial crunch.

17.Heard the learned counsel appearing on either side and perused the materials available on record.

18.When this Court posed a query to the learned Additional Advocate General appearing for the respondents, Whether the Dearness Allowance are being paid to the employees of the other Departments and he replied that they are being paid regularly. Since the number of employees are much less in other Departments compared to that of the State Transport Corporation, where there are 66,000 pensioners and 20,000 family pensioners and the monthly terminal expenditure to be incurred by the State Government will be a sum of Rs.81,00,00,000/- Rupees Eighty One Crores approximately. There is no justification in the above reply given by the learned Additional Advocate General and the same cannot be justified or sustained under any circumstances and it is a clear case of discrimination and which is a violation of Article 14 of the Constitution of India.

19.This Court is of the view that the Transport employees State Transport Pensioners are being deprived, discriminated and isolated with regard to the payment of enhancement of Dearness Allowance and this Court is unable to understand why such discriminatory attitude is being adopted by the respondents towards the employees of the State Transport Corporation Retired Employees. When they are in a position to give the Dearness Allowance especially the enhanced Dearness Allowance from 31 to 34% to the serving employees of the State Transport Corporation according to the settlement arrived under Section 12(3) between the various transport corporation retired employees union dated 24.08.2022. Hence, this Court is of the considered view that the financial crunch cannot be a ground for depriving the enhanced Dearness Allowance to the State Transport Corporation Employees since, the same has been extended to all the other Department employees and even for the serving Transport employees.

20.When thousands of buses are being plied by this Transport Corporation throughout the State and time and again the Government comes forward to give

financial assistance to several Crores of rupees to bail out the financial condition of this Transport Corporation, still the pathetic situation of this Transport Corporation has not been improved. This past history and the present situation would clearly discloses that all is not well in the very administration and the functioning of the Transport Corporation.

21.Whenever, a question of payments of any benefits or dues to the employees,

the standard answer given by the State Government is that they are struggling with financial crunch and invariably in most of the circumstances this is the answer given by the State Government or the Transport Corporation.

22.Hence, this Court is inclined to direct the respondents to pay the enhanced Dearness Allowance to the State Transport Corporation Retired Employees and since the same involving two to three Departments namely the Transport, Finance and Expenditure Departments, it will require some time for the Government to disbursement of the same.

23.In view of the above facts and circumstances of the case, the respondents are directed to pay the enhanced Dearness Allowance to the State Government Transport Retired Employees prospectively with effect from November, 2022 onwards and to file a compliance affidavit before this Court on 25.11.2022. Accordingly, this Sub Application is disposed of.

24.List the case on 25.11.2022, for filing compliance affidavit.

   02.09.2022

Index: Yes/No Internet: Yes/No gba

To

1.The Additional Chief Secretary to Government,    Secretariat, Fort St.George,    Chennai – 600 009.

2.The Administrator,

Tamil Nadu State Transport Corporation

Employees Pension Fund Trust,    Thiruvallur House, Pallavan Salai,    Chennai 600 002.

  J.SATHYA NARAYANA PRASAD,  J.

gba

Sub.Appl.No.98 of 2019 in Cont.P.No.830 of 2014 in W.P.No.34530 of 2012

02.09.2022