Universal
application of the Law laid down by the S.C.
There is a lingering doubt, amongst
some of us, whether the LIC can restrict the benefits accruing as a result of a
Judgment of the High Court or the Supreme Court. I would like to share my views
on this point. It may also create a healthy discussion or debate and in the
interest of the pensioners.
The LIC Act under Sec.48 says that
the Govt. may notify the terms and conditions of service of its employees. The
revision of pay scales etc. are notified from time to time including our
Pension Rules. In other words, it is called statutory rules i.e rules made by
the Govt. under powers vested upon it under the main law. These rules have the
force of law. The rule making power is not absolute but shall have a nexus with
the provisions of the substantive law i.e the main Act and restricted for the
purposes of implementation of the main Act. Such rules, notified in the
official gazette, shall be placed in both houses of the legislature for a
period of 30 days. This is to ensure that the legislature will get an
opportunity to see that the rules are within the law enacted by it and the
Executive has not clothed itself with unwarranted powers. Needless to say that
such rules shall also be within the Constitution of India, just as the main law
itself, and if there is any violation of the Constitution or any other Act for
the time being in force (unless specific exclusion is provided), such rule will
not be legally valid or binding.
To quote an example, the Nakaras case divided
the pensioners into different groups, by their retirement date and that was
held as discriminatory offending Art.14 & 16 of the Constitution of India.
A Judicial decision is a law of
precedence and its enforcement is a Fundamental right like any Constitutional
provision (here also there are some exclusions but that is beyond the scope of
this submissions). Such right is universal and unrestricted.
To hit the
nail on the head, a decision on our pension case will be applicable to all the
pensioners, irrespective of whether they are members of any association of
pensioners or not. If this is not so, there will be another discrimination,
again offending the theory of non discrimination. There shall be no plea of ignorantio
juris or estoppel against a statute. Moreover the rule enforcing
authorities are always the Government and they cannot be discriminatory in the
applying the law.
A Statutory authority, like the LIC, is considered as a limb
of the Government, as established by the LIC Employees themselves, for the
first time in the 70’s.
We are enjoying that ruling, as well as all other
public sector employees. The LIC cannot say today that the right to move the
HC/SC with a writ is restricted to only for enforcement of the Govt’s duty to
its citizen. The benefit of that decision was extended to all other employees
of Govt. undertakings.
After the abolition of payment of bonus in LIC, there
was a case in the SC which was decided by Justice Krishna Iyer, and it was held
that the benefit thereof is paid to all employees. The rationale was that a
limb cannot survive without a body, and hence a statutory body like the Govt.
itself, in a welfare State has to be a model employer, obeying all the
laws of the land. LIC is bound by this theory. There was an interesting
example. During my tenure in the Internal Audit Dept of LIC, after a wage
settlement, LIC wanted a consent letter for implementation of the new wage
structure and one of our Class III friend, in a Kerala Branch, did not give his
consent and was not given the benefit of the revision. I remember to have
raised an audit query, as a result of which after some correspondence, the
benefit was asked to be paid to him.
Recently our friend, Shri M.C. Jain
derived some benefit, as result of a writ petition, which I understand, was
paid to him. Pensioners like him are also eligible for the same benefit and I
will be glad to hear, all in the same position have been paid. If not there is
a case for adjudication. Another confusion is with regard to jurisdictional
applicability of a High Court decision. A Constitutional interpretation by a
High Court when it becomes final after an Appeal, if any, to the SC has
universal applicability.
One High Court decision is quoted in other HC’s/SC to
seek parity. Similarly a SC decision on a case arising from one decision, is
uniformly applied and made applicable in other States to attain uniformity and
to uphold the rule of law. Else an authority like the Chairman of the LIC, who
is concerned in the management of an institution spread throughout the Country,
has to necessarily take uniform decisions and cannot discriminate an
employee/member of the public working/living in one state from another in a
different state.
Nakaras case for instance is followed by all the Courts in the
Country.
The Chandigarh HC, in our pension case, approvingly quoted the
Judgement of Justice Bhandari of Jaipur HC that “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”. Otherwise, a spate of litigation will arise, defeating the
object of obtaining finality in the decision.
The Chandigarh Bench of the
Punjab & Haryana HC also said, I quote, “We are of the view that whatever
grievance with regard to the implementation of the Boards 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 the Board dated 24-11-2001 which was
allegedly pending for nine years”. Therefore, here also the Govt. has lost the
right of appeal.
The doctrine of “law and
justice shall meet eye to eye” is a well known saying meaning that a law
properly enacted by due process but which is patently such that it pricks the
judicial mind, may be declared a nullity by the SC.
Many examples can be
quoted, but that is not my purpose. I think none need to hold any view that
only the petitioners, in our pension case, will enjoy the fruits of our labour.
I invite other views on the subject to supplement and to remove doubts that may
subsist. We need not be carried away, by the action of the LIC considering
payment, of the so called interim relief, only to some of the petitioners, into
such ideas and I am sure ultimately every one of the pensioners will be benefited.
A.S.Ramanathan.
09676840504—040 23117170
-------------------------------------------------------------------
R. Ram Prasad
R. Ram Prasad
You can reach me on: +91-958-1717-000
