LIC PENSIONERS PARITY CASE IN SUPREME COURT

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).29956-
29957/2011
(From the judgement and order dated 19/08/2011 in DBCRP No.
86/2011 & DBCRP No. 87/2011 of The HIGH COURT OF RAJASTHAN AT
JAIPUR)
L.I.C. Petitioner(s)
VERSUS
KRISHNA MURARI LAL ASTHANA & ORS. ETC. Respondent(s)
(With prayer for interim relief and office report)
Date: 14/11/2011 These Petitions were called on for hearing today.
CORAM :

HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA

For Petitioner(s) Mr.Harish N.Salve, Sr.Adv.
Mr.R.Venkataramani, Sr.Adv.
Mr. A.V. Rangam,Adv.
Mr.Buddy A.Ranganadhan, Adv.

For Respondent(s) Mr.P.S.Narsimha, Sr.Adv.
Mr.R.K.Singh, Adv.
Mr.Abhinav Sharma, Adv.
Mr.Kumar Gaurav, Adv.
Mr. Rameshwar Prasad Goyal,A.O.R.

UPON hearing counsel the Court made the following
O R D E R
Issue notice, returnable in ten weeks.
Shri R.K.Singh, learned counsel accepts notice on behalf
of the respondents.
In the meanwhile, the proceedings pending before the High
Court under the Contempt of Courts Act, 1971 shall remain stayed
subject to the condition that within eight weeks from today, the
petitioner shall deposit in the Registry of the High Court the
amount due to the employees.

(Satish K.Yadav) (Phoolan Wati Arora)
Court Master Court Master

JAIPUR H.C. CASE UPDATES

SLP 29956-57

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) No. 29956 of 2011 AND 29957 OF 2011 (against common final judgment and order dated 19.6.2011 of the Division Bench of the High Court of Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Review Petition No. 86 of 2011 and D.B. Civil Review Petiion No. 87 of 2011.

SYNOPSIS AND LIST OF DATES

The Petitioner, Life Insurance Corporation of India seeks this Hon'ble Court's gracious indulgence to approach this Hon'ble Court for the second time (within a period of three months) in respect of the instant matter.

This Hon'ble Court on the earlier occasion, by order dated 15.7.2011 in SLP (Civil) No. 16117 and 16118 of 2011, was pleased to dispose of the said SLPs filed by the petitioner, Life Insurance Corporation of India, in view of the pendency of Review Petitions filed by the petitioner herein for Review of the order of the High Court impugned therein.

The High Court was requested inter alia to decide the Review Petition as early as possible latest within three months.

The High Court by Order dated 19.8.2011 was pleased to dismiss the Review Petition on the ground that there is no error apparent on the face of records, as would merit to interference of the High Court.

In view of the said decision, the petitioner Life Insurance Corporation of India is again approaching this Hon'ble Court, this time against the Order of the High Court in the said Review Petitions.

The matter arises in the following circumstances set out in brief for a consideration of this case as under :-

In this matter, the scope and applicability of Section 48 of the Life Insurance Corporation of India Act 1956 (Central Act 31 of 1956) arises for consideration in deciding whether any resolution of the Board of the Life Insurance Corporation of India proposing an amendment to the said Pension Rules framed by the Central Government would ex proprio vigore be capable of being implemented without an amendment to the Rules. The High Court in the impugned judgment had held that it could be implemented.

The relevant Section 48 of the Life Insurance Corporation of India Act 1956 is extracted below :-

Section 48. Power to make rules

48. Power to make rules –

(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules my provide for all or any of the following matters, namely :-

-[if !supportLists]-->(a) <!--[endif]-->the term of office and the conditions of service of members;

<!--[if !supportLists]-->(b) <!--[endif]-->the manner in which the moneys and other assets belonging to any such fund as is referred to in Section 8 shall be apportioned between the trustees of the fund and the Corporation;

<!--[if !supportLists]-->(c) <!--[endif]-->the services which the chief agent should have rendered for the purpose of the proviso to Section 12;

[(cc) the terms and conditions of service of the employees and agents of the Corporation, including those who became employees and agents of the Corporation on the appointed day under this Act;}

<!--[if !supportLists]-->(d) <!--[endif]-->the jurisdiction of the Tribunals constituted under Section 17;

<!--[if !supportLists]-->(e) <!--[endif]-->the manner in which, and the persons to whom, any compensation under this Act may be paid;

<!--[if !supportLists]-->(f) <!--[endif]-->the time within which any matter which may be referred to a Tribunal for decision under this Act may be so referred;

<!--[if !supportLists]-->(g) <!--[endif]-->the manner in which and the conditions subject to which investments may be dame by the Corporation;

<!--[if !supportLists]-->(h) <!--[endif]-->the manner in which an Employees and Agents Relations committee may be constituted for each zonal office;

<!--[if !supportLists]-->(i) <!--[endif]-->the form in which the report giving an account of the activities of the Corporation shall be prepared;

<!--[if !supportLists]-->(j) <!--[endif]-->the conditions subject to which the Corporation may appoint employees;

<!--[if !supportLists]-->(k) <!--[endif]-->the fees payable under this Act and the manner in which they are to be collected;

<!--[if !supportLists]-->(l) <!--[endif]-->any other matter which has to be or may be prescribed.

[(2-A) The regulations and other provisions as in force immediately before the commencement of the Life Insurance Corporation (Amendment) Act, 1981, with respect to the terms and conditions of service of employees and agents of the Corporation including those who became employees and agents of the Corporation on the appointed day under this Act, shall be deemed to be rules made under clause (cc) of sub-section (2) and shall, subject to the other provisions of this section, have effect accordingly.

(2-B) The power to make rules conferred by clause (cc) of sub-section(2) shall include-

<!--[if !supportLists]-->(i) <!--[endif]-->the power to give retrospective effect to such rules ; and

<!--[if !supportLists]-->(ii) <!--[endif]-->the power to amend by way of addition, variation or repeal, the regulations and other provisions referred to in sub-section (2-A), with retrospective effect from a date not earlier than the twentieth day of June 1979.

(2-C) The provision of clause (cc) of sub-section (2) and sub-section (2-B) and any rules made under the said clause (cc) shall have effect, and any such rule made with retrospective effect from any date shall also be deemed to have had effect from that date, notwithstanding any judgment, decree or order of any court, tribunal or other authority and notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947) or any other law or any agreement, settlement, award or other instrument for the time being in force.]

[(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or to be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." The Petitioner herein is Life Insurance Corporation of India (hereinafter referred for the convenience as L.I.C.) The Respondents herein comprises of various individuals [collectively referred to as Writ Petitioners] and the Union of India.

1956 The Life Insurance Corporation of India came into being through the enactment of an ordinance since replaced by Central Act No. 31 of 1956. The Corporation has several thousands of employees throughout the country. Their appointment and conditions of services are being regulated by various statutory Rules framed by the Central Government in respect of various aspects of conditions of service including Pension benefits etc.

1981 The Life Insurance Corporation Act, 1956 was amended through Life Insurance Corporation (Amendment) Act, 1981 and the Central Government was empowered to make rules, by notification in the Official Gazette, to provide for the terms & conditions of service of the employees & agents of the Corporation.

1995 Life Insurance Corporation of India (Employees) Pension Rules 1995 were framed by the Central Government providing for index linked pension in lieu of Corporation's contribution to Provident Fund w.e.f. 1.11.1993. However employees who retired between 1.1.1986 to 31.10.1993 were allowed an option to become member of the said scheme. True copy of the said rules is filed herewith as Annexure P-1 at pages (34 to 37)

1.8.1997 Subsequently there were three wage revisions in the L.I.C. in 1997, 2002 and 2007.

2001 L.I.C. felt the need for rationalization of Dearness Relief to the group of Pensioners who retired prior to 1.8.1997 in order to reduce various administrative difficulties. Accordingly a proposal to amend the Life Insurance Corporation of India (Employees) Pension Rules by upgrading pension to AICPI 1740 and 100% Dearness Relief neutralization thereof in respect of retirees prior to 1997 was put up to the Board of the Life Insurance Corporation for their approval to the proposal so that the matter would be taken up with Central Government for suitable amendment of the Life Insurance Corporation of India (Employees) Pension Rules 1995 by notification in the official Gazette

Accordingly a Note to the Board was put up for consideration and true copy is annexed hereto and marked as Annexure P-2 at (38 to 41) pages

24.11.2001 The Board of L.I.C. at its 492^nd meeting by resolution approved the proposal and resolved further that is should be implemented prospectively after obtaining Government's approval. True copy of the of the minutes of the meeting in relation to the said item is annexed herewith and marked as Annexure P-3 at pages (42 to 43)

Pursuant to the said Board's Resolution the matter was put up to the Central Government by the LIC with a request to make appropriate amendments to the concerned Pension Rules. A true copy of the letter is annexed herewith and marked as Annexure P-4 at pages (44 to 46)

Government has not so far promulgated any such amendment to the Rules pursuant to such request of the L.I.C. While so, two Writ Petitions were filed by certain former employees of the L.I.C. in the High Court of Judicature of Rajasthan, Jaipur Bench at Jaipur in SBCWP No. 6676/1998 and 654/2007. complaining against the discrimination by LIC in grant of dearness allowance in regard to Pensionary benefits. It was inter alia contended by the Writ Petitioners (contesting Respondents) that their grievance "can come to an end" if the resolution of the Board of the LIC is implemented

12.1.2010 The learned single Judge of the High Court holding that the action by the Central Government for the amendment of the Pension Rules was not necessary and that the Resolution of the L.I.C. Board could be "implemented at the level of the Respondent Corporation itself, and that "there was no reasons to seek approval because day to day decision are not required to be sent for approval of the Central Government", and also holding that it is only a policy decision which involve public interest and not every decision of the Board which needed approval of the Central Government. The learned judge allowed the Writ Petition on the view that the aforesaid resolution does not need approval of the Central Government and L.I.C. will be able to implement the resolution aforesaid dated 24.11.2001. A true copy of the said Judgment is annexed herein and marked as Annexure P-5 at pages (47 to 68)

Writ Appeals were taken to the Division Bench by the Petitioner LIC in Division Bench Special Appeal (Writ) No. 493 and 494/2010.

21.1.2011 The Division Bench of the High Court dismissed the Writ Appeal by their final judgment. True copy filed as Annexure P-6 at pages (69 to 74)

23.02.2011 The petitioner moved the High Court for Review of its Order by Review Petitions in D.B. Civil Review Petition No. 86/2011 and 87/2011.

Against the aforesaid Judgments, the petitioner LIC approached this Honble Court in S.L.P. Civil Nos. 16117 & 16118/2011

15.7.2011 This Hon'ble Court disposed of the said Special Leave Petitions with a request to the High Court to dispose of the Review Petitions latest within three months. This Hon'ble Court was further pleased to order the stay of contempt proceedings to continue till the disposal of the case by the High Court. True copy thereof is filed as Annexure P-7 at pages (75 to 76)

19.8.2011 The Division Bench of the High Court in its final orders dismissed the said Review Petitions by its order which is impugned herein.

<!--[if !supportLists]-->1.10.2011 <!--[endif]-->Hence the present Special Leave Petitions.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) No. ______of 2011 (against common final judgment and order dated 19.6.2011 of the Division Bench of the High Cout of Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Review Petition No. 86 of 2011 and D.B. Civil Review Petiion No. 87 of 2011.

L.I.C. of India and another

Versus

Krishna Murari Lal Asthana

And others

The humble petition of the

Petitioners abovenamed

MOST RESPECTRULLY SHOWETH

<!--[if !supportLists]-->1. <!--[endif]-->The present petitioners for Special Leave to Appeal under Article 136 of the Constitution of India, are filed against common final Judgment and Order dated 19.8.2011 of the Division Bench of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Review Petition No. 86/2011 and 87/2011 whereby the High Court dismissed the Review Petitions.

<!--[if !supportLists]-->2. <!--[endif]-->QUESTION OF LAW:

The following questions of law arise for consideration by this Hon'ble Court:-

<!--[if !supportLists]-->I. <!--[endif]-->Whether the High Court was correct in holding that the Review Petitions do not call for interference in the Review jurisdiction ?

<!--[if !supportLists]-->II. <!--[endif]-->Whether the High Court was correct in holding that there is no apparent error o the face of the record ?

<!--[if !supportLists]-->III. <!--[endif]-->Whether the High Court could have issued a mandamus for implementation of a Resolution of the Life Insurance Corporation of India seeking Government of India's exercise of its statutory powers for amending concerned the Pension Rules before the Government of India made the amendments as requested by the Life Insurance Corporation of India?

<!--[if !supportLists]-->IV. <!--[endif]-->Whether the High Court could issue a mandamus directing the parties to do something which is not permitted by law, which if done will tantamount to without the authority of law ?

<!--[if !supportLists]-->3. <!--[endif]-->DECLARATION IN TERMS OF RULE 4(2)

The petitioners state that no other petition seeking leave to appeal has been filed by them against the impugned judgment and order.

<!--[if !supportLists]-->4. <!--[endif]-->DECLARATION IN TERMS OF RULE 6

The Annexure P-1 to P-7 produced along with the Special Leave Petition is true copy of the pleadings/documents which formed part of the records of the case in the Court below against whose order the leave to appeal is sought for in this petition.

<!--[if !supportLists]-->5. <!--[endif]-->GROUNDS

Leave to appeal is sought for on the following, amongst other grounds:

<!--[if !supportLists]-->A. <!--[endif]-->The High Court erred in law in rejecting the Review Petitions on the ground that there is no error apparent on the face of the records, as would merit interference by the High Court in its review jurisdiction.

<!--[if !supportLists]-->B. <!--[endif]-->It is submitted that various grounds before the High Court in support of the Review Petition taken individually or cumulatively would indicate the errors apparent on the face of the records which would require review by the High Court.

<!--[if !supportLists]-->C. <!--[endif]-->The High Court erred in ignoring the principle that when a particular thing has to be done in a particular way, it can only be done in that way and in no other way.

<!--[if !supportLists]-->D. <!--[endif]-->The High Court further do not take into account the legal principle that a court ought not to have compelled a party to do something which would not be permissible under the law or which if done would be in breach of prejudice of such law.

<!--[if !supportLists]-->E. <!--[endif]-->The High Court could not in law issue a mandamus directing the Petitioners to implement the Resolution concerned of the LIC without waiting for the amendment of the Pension Rules by the Central Government under Section 48 of the Life Insurance Corporation of India Act 1956.

<!--[if !supportLists]-->F. <!--[endif]-->The High Court in law could not treat the Resolution of the LIC by which Government was approached for amending the Pension Rules into a self operating decision when a mere Resolution to recommend to the rule making authority cannot ex proprio vigore have the force of law in the absence of statutory amendments to the Pension Rules.

<!--[if !supportLists]-->G. <!--[endif]-->The High Court ought to have seen that the entitlement of the additional pension benefit granting amendments to the concerned pension rules can in law arise only when the amendment to the Rules is made by the Central Government under the LIC Act.

<!--[if !supportLists]-->H. <!--[endif]-->The High Court ought to have held that Resolution of the L.I.C. is only in the nature of a request to the Central Government for necessary and appropriate action for the amendment of the Pension Rules.

<!--[if !supportLists]-->I. <!--[endif]-->The High Court has ignored the legal position that when law provides for doing a particular thin in a particular way, that thing has to be done in that way and not otherwise.

<!--[if !supportLists]-->J. <!--[endif]-->By the reason of the High Court Judgment an amendment to the Pension Rules which are to be made by the Central Government is in fact being brought into force through making a resolution of the LIC requesting the Government for such amendment as self operating, which would be contrary to the statutory provisions.

<!--[if !supportLists]-->K. <!--[endif]-->The High Court's finding that this is a policy decision and so unnecessary for any amendment of the rules goes contrary to the express provisions in section 48 of the LIC Act.

<!--[if !supportLists]-->L. <!--[endif]-->The High Court ought to have seen that the Pension having been provided by statutory Pension Rules, LIC cannot change the Pension Rules except when there is necessary amendment to the original Pension Rules which amendments can only be made by the Central Government.

<!--[if !supportLists]-->M. <!--[endif]-->The High Court ought to have appreciated that the Petitioners Life Insurance Corporation of India cannot be placed in a position of acting contrary to the law which created the corporation.

<!--[if !supportLists]-->N. <!--[endif]-->The High Court was in error in preferring the oral submissions of the learned counsel appearing for the Union of India in preference to the express words of the statute

<!--[if !supportLists]-->O. <!--[endif]-->The High Court was in error in characterizing the resolution as "day to day decision not required to be sent for approval of the Central Government". IN this connection the High Court ought to have seen that the Resolution itself had resolved to address the Central Government for necessary amendment of the Rules.

<!--[if !supportLists]-->P. <!--[endif]-->The High Court ought to have seen that the resolution concerned was based on a note to the Board on which alone the Board's resolution was passed to address the Central Government for suitably amending the rules.

<!--[if !supportLists]-->Q. <!--[endif]-->In that situation the question of tearming the resolution as a day to day decision which could be implemented on its own in totally untenable in law.

<!--[if !supportLists]-->R. <!--[endif]-->The High Court with all respect ought not to have criticized the Petitioners for having approached the High Court in Writ Appeals. The High Court ignored the fact that the learned single judge issued a mandamus against the Life Insurance Corporation of India and it was therefore the LIC which alone would approach the Division Bench of the High Court. The Writ Appeals were filed in order to present before the Court the true legal position and the legal difficulties which would arise in case the L.I.C. was to act beyond, out side and contrary to the parameters of law.

<!--[if !supportLists]-->S. <!--[endif]-->The High Court erred in holding that "there cannot be a cut off date for existing pensioners for providing benefits."

<!--[if !supportLists]-->T. <!--[endif]-->It is submitted that such a finding is untenable in law and goes counter to law laid down by this Hon'ble Court which is binding on all courts and authorities in our country.

<!--[if !supportLists]-->U. <!--[endif]-->The High Court with all respect has not dealt with various grounds and contentions raised by the Petitioners in their Memo of appeal and argued during the hearing.

<!--[if !supportLists]-->V. <!--[endif]-->The High Court ought to have seen that in the memo of appeal, as also during the course of hearing, it was contended on behalf of the Corporation that by virtue of the statutory rules framed by the Central Government under Section 48 of the Act of 1956 and the subsequent amendments made by the Central Government in the said rules, the quantum of D.R. depends upon the quantum of pension and that the quantum of pension of an employee retiring from a post is computable on the basis of pay and the pay scale applicable to the post at the time of retirement. Thus employees working on the same post would be getting different pay and pay scale depending on the date of the retirement and therefore neither their pension nor their D.R. could be identical or equal unless the Central Government was to frame new pension rules or make substantial amendments in the existing pension rules. Thus as per the Agenda Note to the Board meeting, as also the resolution passed by the Board, the matter was necessarily required to be referred to the Central Government for amendment of the Pension rules. This relevant and significant aspect of the matter has not been correctly considered and dealt with in the judgment and order dated 12.1.2010, as also in the judgment and order dated 21.1.2011. The Judgment and order dated 21.1.2011 thus suffers from manifest error apparent on the face of the record.

<!--[if !supportLists]-->W. <!--[endif]-->That the High Court ought to have seen that the agenda note for Board meeting as also resolution passed by the Board refer to rationalization of Dearness Allowance (D.R.). The quantum of D.R. under statutory rules depends upon the quantum of pension which in turn depends upon the pay scale applicable at the time of retirement of an employee. The judgment and order dated 12.1.2010 is completely silent so far as the quantum of pension is concerned and has merely directed that so far as D.R. is concerned, every retiring employee should get the same benefit. Such a direction cannot be complied with unless rules are framed by the Central Government for amending the existing statutory pension rules.

<!--[if !supportLists]-->X. <!--[endif]-->The petitioner also craves leave at the hearing to refer to and rely on the (a) various grounds argued in its Review Petitions before the High Court (b) the various submissions made in its written submissions submitted before the High Court as part and parcel of this Petition. To avoid prolixity, the same are not repeated herein verbatim.

<!--[if !supportLists]-->Y. <!--[endif]-->Petitioner craves leave at the hearing to add to, alter, modify, or vary any or all the aforesaid grounds of the present petition each of which have been taken in the alterative and without prejudice to each other.

<!--[if !supportLists]-->6. <!--[endif]-->GROUNDS FOR INTERIM RELIEF

It is submitted that, it is necessary in the interest of justice, for this Hon'ble Court to grant stay of operation of the final judgment and order of the Rajasthan High Court impugned in this Special Leave to Appeal. The balance of convenience would lie in the grant of such interim relief. In the absence of such interim relief the Petitioners would face extremely legal difficulties if the orders of the High Court are implemented which would run contrary to the express provisions of the Life Insurance Corporation Act. In such circumstances, in the absence of interim relief by this Hon'ble Court, the petitioner shall be put to great hardship and considerable loss. Moreover the pending contempt petitions (which were earlier subject to stay order issued by this Honble Court) will revive now. It will therefore be just and necessary and in the interests of justice that this Honble Court is also pleased to grant stay of the said contempt applications.

<!--[if !supportLists]-->7. <!--[endif]-->MAIN PRAYER

It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased

<!--[if !supportLists]-->(a) <!--[endif]-->grant special leave to appeal under Article 136 of the Constitution of India against final Judgment and Order dated 19.8.2011 of the Division Bench of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Review Petition No. 86/2011 and D.B. Civil Review Petition No. 87/2011 and

<!--[if !supportLists]-->(b) <!--[endif]-->ex-parte ad-interim order in terms of above be granted and the same be confirmed after notice to the respondents; and

<!--[if !supportLists]-->(c) <!--[endif]-->pass such other order or orders which may be deemed fit and proper in the facts and circumstances of the case.

Filed by

[A.V. Rangam]

Advocate for the Petitioner

Drawn on 14-9-2011

Filed on 1-10-2011

L.I.C. APPEALS DISMISSED

ON 21-01-2011, THE JAIPUR DIVISIONAL BENCH (JUSTICE DALIP SINGH AND JUSTICE MAHESH BHAGWATI) OF THE RAJASTHAN HIGH COURT HAS DISMISSED BOTH APPEALS ( S.A.W. 493/2010 AND 494/2010) OF L.I.C. FILED AGAINST THE JUDGMENT GIVEN BY HON'BLE JUSTICE M. N. BHANDARI IN CWP 6676/1998 AND CWP 654/2007 ON 12-01-2010 IN FAVOUR OF THE PETITIONER / APPLICANT SHRI K M L ASTHANA AND OTHERS.

FULL JUDGMENT OF DB IS GIVEN BELOW

JAIPUR DIVISIONAL BENCH JUDGMENT

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

                 JAIPUR BENCH AT JAIPUR

                                   ***

D.B. Civil Special Appeal (W) No. 493/2010

Life Insurance Corporation of India

vs

Krishna Murari Lal Asthana and ors

D.B. Civil Special Appeal (W) No. 494/2010

Life Insurance Corporation of India

Vs.

Krishna Murari Lal Asthana & Ors

***

Dated: 21.01.2011

HON'BLE MR. JUSTICE DALIP SINGH

HON'BLE MR. JUSTICE MAHESH BHAGWATI

Mr. Mahendra Singh for the appellant

Mr. N.K. Maloo )

Mr. Abhinabh Sharma) for the respondents

                                   ***

         These two appeals have been preferred by the Life Insurance Corporation of India against the judgment of the learned Single Judge dated 12^th January, 2010 allowing two writ petitions filed by the petitioners.

2.      We may not burden the judgment with the details of the facts in as much as the directions given in the judgment by the learned Single Judge are as follows:

         "In the facts and circumstances of the case, I am of the view that resolution passed by the Board of LIC does not need approval of the Central Government thus the Corporation may give effect to its resolution dated 24.11.2001 to avoid discrimination amongst existing pensioners.

                 In light of the discussion made above, both the writ petitioners are allowed. The Respondent Corporation is directed to take a decision for implementation of the resolution dated 24.11.2001 passed by the Board. The respondent Corporation cannot provide different criteria for grant of dearness allowance to the existing pensioners based on cut off date i.e. 31.7.1997. The benefit arising out of the directions above would, however,, be considered by the respondent Corporation so that every retired employee may get the same benefit. Costs made easy."

3.      In coming to the aforesaid conclusion and giving the aforesaid directions, the learned Single Judge has taken note of the fact that the LIC appellant before us had itself passed a resolution in the meeting held on 24.11.2001 for removing the aforesaid discrimination, so far as the grant of dearness allowance is concerned, the learned Single Judge inquired from the learned counsel for the Union of India appearing in the writ petitions, whether on the plea of the appellant LIC before the learned Single Judge that the aforesaid resolution would require approval of the Central Government. Faced with the above, as has been incorporated by the learned Single Judge in the judgment, learned counsel appearing for the Union of India submitted that the resolution dated 24.11.2001 is pending decision before the Government of India. But the LIC was otherwise free to take its own decision. Based upon the aforesaid submissions of the learned counsel for the Union of India, the learned Single Judge concluded – "Thus, in these circumstances and as per the provisions of Act, there was no need to send the Board's resolution for its approval by he Government of India." The learned Single Judge further dealing with the aforesaid aspect in the impugned judgment after considering the scope of section 21 of the LIC Act came to the conclusion which reads as follows:

         "Thus, there was no reason to seek approval because day-to-day decisions are not required to be sent for approval of the Central Government. The law, in this regard, is settled in view of various judgments cited by learned counsel for the petitioners and has not otherwise been debated by learned counsel for the respondent corporation. Even learned counsel for Union of India had accepted the aforesaid proposition and submitted that it is only a policy decision, that too, involving public interest and not every decision of Board, which needs approval by the Central Government. It is otherwise not made clear as to what is the element of public interest involved herein, if the resolution of Board is implemented. In fact, implementation of the Board's resolution would take away discriminatory treatment amongst he pensioner's apart from keeping the LIC away from the administrative inconvenience." The learned Single Judge, therefore, further came to the conclusion that "there cannot be a cut off date for existing pensioners for providing benefits, but further fact is that to cure the aforesaid mistake, the Board's resolution should have been given effect to, which will otherwise redress the entire grievance of the petitioners".

         4. Thus, we find from the judgment of the learned Single Judge that the Government of India never contested so far as the resolution dated 24.11.2001 of the Board of the appellant LIC or the merits and the contents thereof before the learned Single Judge or its competent to pass such a resolution or implement the same so as to remove the discrimination between retired employees for payment of D.A.

         5. The learned counsel for LIC Mr. Mahendra Singh contended, taking us through the provisions of the Act and the Rules under Section 48 and 49, that the rules with regard to the conditions of service of the employees could only be framed by the Central Government and could be implemented only after being notified in the official gazette.

         6. We are of the view that whatever grievance with regard to the implementation of the Board's resolution dated 24.11.2001 is concerned, the same can be raised by the Union of India who has chosen not to file any appeal in the matter and this can easily be considered as an approval of the said resolution of he Board dated 24.11.2001 which was allegedly pending for nine years. The Board of LIC, who is the appellant before us against the judgment of the learned Single Judge, had itself taken a decision to remove the disparities and the discrimination with regard to the payment of Dearness Allowance and pension to the retired employees under its resolution of the Board dt. 24.11.2001, which was in public interest. It could not and should not have filed the present appeal against the judgment of the learned Single Judge as the learned Single Judge has provided an umbrella to the appellant for the implementation of the decision of the Board dt. 24.11.2001 on the categorical statement made by the learned counsel appearing on behalf of the Union of India and not assailed in appeal by the Union of India.

         7. In the light of the submissions made by the learned counsel for the Union of India before the learned Single Judge, we find that these appeals filed by the L.I.C. of India have no merit and the same stand dismissed.

Sd.                                                                                                 Sd.

Watching the rains drops

JURISDICTION OF CAT & HIGHCOURTS

CAT , High Court and Supreme Court in respect of Service Matter cases.

By M. L. Kanaujia, IRSSE, CCE/NE Railway (Rtd.)

There is lot of speculation going on in respect of appeal against CAT Judgment as to

whether it would lieto High Court or Supreme Court. The facts are as stated below :

1. Article 323 A and 232 B of Constitution of India, provides for formation of

CAT and Other Tribunals, respectively, state as extracted here under :

1.1 323A. (1) Parliament may, by law, provide for the adjudication or trial by

administrative tribunals of disputes and complaints with respect to recruitment and

conditions of service of persons appointed to public services and posts in connection

with the affairs of the Union or of any State or of any local or other authority within

the territory of India or under the control of the Government of India or of any

corporation owned or controlled by the Government.

(2) A law made under clause (1) may—

(a) provide for the establishment of an administrative tribunal for the Union and a

separate administrative tribunal for each State or for two or more States;

(b) specify the jurisdiction, powers (including the power to punish for contempt)

and authority which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisions as to limitation and rules of

evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme

Court under article 136, with respect to the disputes or complaints referred to in

clause(1);

…………………….

1,2 323 B. (1) The appropriate Legislature may, by law, provide for the

adjudication or trial by tribunals of any disputes, complaints, or offences with

respect to all or any of the matters specified in clause (2) with respect to which such

Legislature has power to make laws.

……………..

323 B (3) A law made under clause (1) may—

(a) provide for the establishment of a hierarchy of tribunals;

(b) specify the jurisdiction, powers (including the power to punish for contempt)

and authority which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisions as to limitation and rules of

evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme

Court under article 136, with respect to all or any of the matters falling within the

jurisdiction of the said tribunals;

2. In compliance of Article 323 A, The CAT Act was passed by the Parliament.

Para 28 of CAT Act, which excludes the jurisdiction of High Court, states as under

:

28. Exclusion of jurisdiction of courts except the Supreme Court –

On and from the date from which any jurisdiction, powers and authority becomes

exercisable under this Act by a Tribunal in relation to recruitment and matters

concerning recruitment to any Service or post or service matters concerning

members of any Service or persons appointed to any Service or post, [ no court

except – the Supreme Court ;

3. Atticle 226 (1) of Constitution, which empowers the High Court to exercise

jurisdiction, states as under :

2[226. (1) Notwithstanding anything in article 32 every High Court shall have

power, throughout the territories in relation to which it exercises jurisdiction, to

issue to any person or authority, including in appropriate cases, any Government,

within those territories directions, orders or writs, including ‘[writs in the nature of

habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of

them, for the enforcement of any of the rights conferred by Part III and for any

other purpose.]

4. Article 227 (1) of Constitution, which empowers the High Court to exercise

superintendence all Courts and Tribunals in its jurisdiction, states as under :

3[(1) Every High Court shall have superintendence over all courts and tribunals

throughout the territories in relation to which it exercises jurisdiction.]

5. Seven Judge Constitutional Bench of Hon.ble Supreme Court, in case of L.

Chandra Kumar vs Union Of India And Others, Equivalent citations: AIR 1997 SC

1125, 1997 (1) BLJR 735, (1997) 1 CALLT 55 SC : Bench A Ahmadi, M Punchhi, K

Ramaswamy, S Bharucha, S S Ahmad, K Venkataswami, K Thomas, ORDER : on

18 March, 1997, A.M. Ahmadi, C.J., in Para 100 of its Judgment, has held as under

:

100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article

323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of

the High Courts and the Supreme Court under Articles 226/227 and 32 of the

Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of

jurisdiction" clauses in all other legislations enacted under the aegis of Articles

323A and 323B would, to the same extent, be unconstitutional. The jurisdiction

conferred upon the High Courts under Articles 226/227 and upon the Supreme

Court under Article 32 of the Constitution is part of the inviolable basic structure of

our Constitution. While this jurisdiction cannot be ousted, other courts and

Tribunals may perform a supplemental role in discharging the powers conferred by

Articles 226/227 and 32 of the Constitution. The Tribunals created under Article

323A and Article 323B of the Constitution are possessed of the competence to test

the constitutional validity of statutory provisions and rules. All decisions of these

Tribunals will, however, be subject to scrutiny before a Division Bench of the High

Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will,

nevertheless, continue to act like Courts of first instance in respect of the areas of

law for which they have been constituted. It will not, therefore, be open for litigants

to directly approach the High Courts even in cases where they question the vires of

statutory legislations (except where the legislation which creates the particular

Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.

Section 5(6) of the Act is valid and constitutional and is to be interpreted in the

manner we have indicated.

CONCLUSION :

Against the Judgment of the CAT, Govt., if it so decides, can go to High

Court with Writ Petition (Civil) praying for Mandamus (Command to a lower level

Court i.e. Stay) and Certiorari (Allowing or Disallowing appeal against Judgment

of a lower level Court).

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DISCRIMINATION TO LIC, GIC PENSIONERS

           

           

           

Sub:- Discrimination to GIC & LIC PENSIONERS

The Central Govt. has notified the General insurance pension scheme 1995 vide Extra ordinary gazette part II section 3 sub section II dated: 28/04/1995. As per this scheme the qualifying service for full pension of 50% of last drawn basic is 33 years and rate commutation of pension is 33%. This scheme was prepared by taking the relevant portion of the central civil service (pension) rules 1972 which was modified up to that date. This is evident from the residuary provision contained in Para 55 of our scheme which states that “Matters relating to pension and other benefits in respect of which no express provision has been made in this scheme shall be governed by the corresponding provision contained in CCS (pension) rules 1972 or CCS (communication of pension) rules 1981, applicable to central employees”.

Hence it is logically concluded that CCS (pension) rules 1972 & General insurance pension scheme 1995 are corollary to each other. In other words CCS (pension) rules 1972 is the basic structure of General insurance pension scheme 1995.

Whereas this is the relation between each other, the CCS (pension) rules 1972 have been modified twice with the implementation of 5^th and 6^th CPC report. The latest being 6^th CPC implementation office memorandum F No 38/37/08-P&PW (A) Gov. of India dated 02/09/2008. According to Para 5.2 of this memorandum the linkage of full pension with 33 years of qualifying service shall be dispensed with. Once a government servant has rendered the minimum qualifying service of twenty years, pension shall be paid at5 50% of the average emolument for last 10 months. Another important modification effected to CCS (communication) rules 1981 is by the Para 9.1 of the above memorandum which states that “A Govt. servant shall continue to commute a lump sum payment of maximum 40% of his pension. (We are still following 33 years of qualifying service for full pension and rate of commutation 33%)

Those amendments to, CCS (pension) rule, 1972 which are favorable to GIC pensioners have not been implemented in GIC pension scheme 1995 and those which are unfavorable to GIC Pensioners have been implemented with retrospective effect. One of such example is that New contributory pension scheme has been introduced to CCS pensioners w.e.f. 01/01/2004 amending CCS (pension) rules 1972 along with the 6^th CPC implementation. Same amendment has been made to, GIC pension scheme implementing new contributory pension scheme with retrospective effect to all GIC pensioners w.e.f. 01/01/2004. This is discriminatory in nature and against the spirit of article 226 of our constitution.

Since nothing is mentioned in our GIC pension scheme 1995 regarding modification of improvements, we have to depend on the CCS (pension) rules 1972 and CCS (commutation) rules 1981 as per the Para 55 of GIC pension scheme 1995. (Which is the only remedy mentioned in our scheme)

Hence it is requested to modify the GIC pension scheme 1995 chapter vi & chapter viii for delinking 33 years of qualifying service with full pension and to increase the rate of commutation from one third to 40% as per the above CCS pension and commutation modification rules contained in Para 5.2 & Para 9.1 of government of India ministry of personnel, public grievances & pensions, department of pension & pensioners’ welfare office memorandum F.NO.38/37/08-P&PW (Dated 02/09/2008

ENCL: F.NO.38/37/08-P&PW (A) dated 02/09/2008, GIC Pension Scheme 1995.