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Monday, 24 July 2017

LEGAL BATTLE OF LIC PENSIONERS THE LAST PHASE

It  is time for taking stock of  our fight  in the  Supreme Court in the back drop of the Order  of the Delhi High Court which  threw us into highly disadvantage position. The order  denied  us  the issue of updation of pension .The  pre Aug.97 pensioners  also  had a raw deal at this H.C. 
The Bench  headed by Justice Singhvi refused to grant  stay  on the Orders of the 3 H.Cs of this Rajasthan , Chandigarh , and Delhi. But his successor  Justice Mishra held that Board has no authority to pass the Resolution in the absence of Rules . So Justice Mishra set aside the orders of the 3 H.Cs  asked us to fight afresh issue of D/R neutralization and the  updation  of pension with each wage revision.
Sri Kaul  ASG appearing for the Corporation pointed out that the single pointJudge and the Divn. Bench of Rjastan H.C committed illegality by   passing the Order , basing on the concession given by the Counsel forthe G.O.I. and the judge upheld  this point  and went further to comment  that H.Cs at Chandigarh and Delhi did not study the issues kindly plbut simply relied on the Orders of Rajastan H.C. This is quite unfair comment  on the fellow judges.A perusal of the judgment  of Rajastan clearly show that  issues raised by all the parties were discussed thread bare and the matter was decided by the single judge and confirmed by the Divin. Bench of Rajastan H.C. 
Another  advice by the S.C was that pleadings were not sufficient in assailing the constitutional validity of Para 3A of Annexure IV.It is unfortunate that the Delhi H.C declared that the Nakara  case is not applicable  to us. So  much so the pre Aug.97 pensioners  did not suffer  discrimination and the classification of retirees  basing on the cut off date  is justified debarring these pensioners from invoking  the provisions of the Constitution. 
The S.C observed " we are absolutely clear that it does not confer power on the Chairman to issue instructions that can travel beyond the Rules.The Board is not authorized to make take the decision on matters  which are  in the domain of the Rule making authority(G.O.I)
It is our considered opinion that when there are  no rules no benefit can be granted on the basis of the resolution.This being the legal position the H.C could not have held to the contrary on the basis of the concesion given by the Counsel for G.O.I.
Here it is to be kept in mind that the Single Judge of Rajastan  passed his order considering all the issues raised before him by the parties.He mentioned para no9 of Nakara case also.The Divn. Bench also considered  all the aspects. While concurring with the Single Judge the bench commented that L.I.C having authored the Resolution should not have come in for appeal. It is for the G.O.I to have any grievance and they should have preferred an appeal. The single judge  provided an umbrella to L.I.C to implement the Resolution. What would have been the position if the single judge ordered G.O.I to approve the resolution by complying with Rule 55A of the pension rules. 
Evidently Justice Mishra was not aware of the fact that the G.O.I empowered the Corporation to amend the Rules 36,37,and 39 vide the Notification Dt.22-6-2000.In the light of this power to amend the L.I.C thought of allowing 100% D/R neutralization to the Pre Aug.97 retirees  who continued to get the D/R on  tapering basis.So the
E.D(P) prepared the Note  to provide  the 100%D/R as is being given to the Post Aug.97 retirees and the inservice employees.The Board met on 24-11-2001 to decide on the Note and passed the Resolution .The G.O.I wa requested to approve the Resolution.
The Resolution had the heading " Aendment to L.I.C of India (employees)Pension Rules 1995 --upgrading of basic pension to AICPI 1740 points and 100%D.A neutralization there on in respect of retirees prior to 1-8-1997. 
WHO CAN AMEND THE RULE 37 OR PARA 3A OF ANNEXURE IV. After June 2000  notification the Corporation can amend the rule37 So the Board is competent to pass the resolution. Yet it sought the approval if the G.O.I.Can the GOVT. withhold the approval. The Rule 55A (power to relax) stipulate that the G.O.I has to give clearance to remove the hardships, and disparities faced by the retirees.SO G.O.I IS DUTY BOUND TO ABIDE BY RULE 55A. 
But the G.O.I kept silent on the matter . hence our legal battle. Now we must explain the matter to S.C in the S.L.P to understand that G.O.I flouted the rule 55A.We should also explain that the 40% I.R should be calculated as per the office note of the E.D.(P). The S.C SYMPATHISED WITH THE RETIREES  AND OPINED THAT THE L.I.C SHOULD HAVE BEEN GRACIOUS ENOUGH TO RECOGNISE THE SERVICES RENDERED BY THEM AND THE G.O.I SHOULD HAVE COME WITH AN AFFIRMATIVE RESPONSE WHEN RESOLUTION WAS PASSED BY THE L.I.C. WE SHOULD TAKE ADVANTAGE  OF THIS SENTIMENT and explain the provision to amend the rule 37 by L.I.C that enabled to pass the resolution  and the duty of G.O.I to abide by rule 55A . 
It is important  for S.C to keep in mind the case law DEOKINANDAN in which the S.C Bench  ruled " tHIS COURT AUTHORITATIVELY RULED THAT PENSION IS RIGHT AND THE PAYMENT OF IT DOES NOT DEPEND UPON THE DISCRETION OF THE GOVERNMENT BUT IS GOVERNED BY THE RULES AND A GOVERNMENT SERVANT COMING WITHIN THOSE RULES IS ENTITLED TO CLAIM PENSION"  Let  L.I.C AND THE G.O.I FOLLOW THE RULES.
We may also draw the attention of the S.C  to the observations  made by the NHRC on pension  in its booklet" Retiral Benefits as a HUMAN RIGHT-NHRC INITIATIVE" The NHRC observed that " denial ,nonpayment or delayed payment of the same(pension)is not only tantamount to denial of an individual's Right to Property but is also a violation of the Human Rights of the victim and their next of kin where in their livelihood  is affected often times resulting in untold misery starvation and poverty."
"This publication aims at portraying the commission's interpretation of retiral benefits as a human right and its subsequent efforts to ensure a strong platform of redressal for victims and families suffering from poverty and hardship, upon denial of their hard earned retiral benefits and dues.(preface by Sri A.R.Parashar Jt.Registrar (law) NHRC. 
NHRC observed that pension is the deferred portion of compensation for long and dvoted services rendered by an employee with the employer . It is a social welfare measure  as well.Article 21 of the Constitution of India guarantees every one a fundamental right to livelihood which includes entitlement to receive his deferred wages in accordance with RULES after retirement.( in our case the rule 55A,56 are violated by the G.O.I /L.I.C) .Non payment of retiral benefits therfore is a violation of one's fundamental right under Art.21 . The right to receive the same is not only a fundamental right but also a Right to Property under Art.300A of Constitution of India  which can not be taken away by Authority of Law.( Which law enabled the L.I.C / G.O.I to deprive the pensioners  of the 100% D/R and updation). 
In the concluding remarks the NHRC observed " Right to receive retiral benefits as per entitlement has evolved into one of the most important HUMAN RIGHTS.The poineering Role of the Supreme Court of India and institutions like the NHRC has given impetus to this RIGHT.However the the ROLE OF THE EXECUTIVE for proper implementation of the Social Security Legislations ensuring timely payments to the concerned Beneficiary is of IMPORTANCE. The Commission expects that the EXECUTIVE in India will understand their important ROLE in strengthening the SOCIAL SECURITY regime in the Country and take all necessary steps to promote and protect  the rights of the entitled persons to receive the retiral benefits .( L.I.C AND THE G.O.I TO TAKE A SPECIAL NOTE OF THIS ). 
The issue of the COST aspect will not be of any consequence  in the light of the dismissal by the S.C of the Curative Petition filed by the L.I.C on the absorption of the Temporary Employees.
This line of argument to persuade the S.C TO RENDER JUSTICE TO THE PENSIONERS  is very vital . 
We may submit  a comparison of our rule 56 and rule 56 of nationalised  banks . our rule did not provide for the approval by the G.O.I whereas  that of clearly provided for the approval of G.O.I . tHE RULE 49 of the CCS(PENSION) RULES 1972 modified to provide updation of pension  to their retirees. .L.I.C to implement updation  as per rule56. Rule 36  on Min. pension provided for updation with each wage revision. 55B specifically provided for updation of pension to the Chairman and the M.Ds. Then how other retirees can be deprived of updation  when the rule 56 provided for it.

V.S.PRAKASARAO
visakhapatnamem   

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