Shri A.S.Ramanathan Writes,
Dear Friends,
We are in the final phase of our fight in our pension case in the Supreme
Court. We have read, heard and discussed so far on the merits, legal points,
strengths of our case and seen the tortuous course it had thus far taken. Much
research has also gone to strengthen our case by digging into the legal,
logical points and the justification of our case. I am sure that the captains,
leading our case have noted all those points and appraised our counsels
handling the case. Nonetheless, it is extremely important for us to once again
go through and formulate a draft of the defence we are going to present, at the
time of the final arguments. We should be equivocal in our arguments and
unified in our approach. It is important to realise that our counsels are
seasoned advocates and, I may be pardoned to say, that some time they may take
it easy, because what we may see as important, is a usual thing for them. Yet,
I feel bold enough to emphasize on this, from my experience in interacting and
briefing, so that no point is missed. While arguing our case, first we are
selling our points to the Judges. There will be questions from the Bench. The
best we have to do, is to present our points cogently (this is less arduous now
as the LIC & Govt. will have to present their case first). By now we are
well aware of the arguments that may arise from the Appellants side and I am
sure, we have the defence. We must be present in the court with our Advocates
to take note of any new points that may be raised, in order to immediately
appraise our counsel. Of course, our advocates know to counter arguments, still
we have a duty to give them a feedback, because we have to ensure that they
have been briefed correctly so that any attempt to confuse the court, as it
happened earlier as regards the number of retirees and the total cost etc., may
be cleared. It is suggested that a written argument and detailed a point by
point arguments with supporting case laws and our legal and moral justification
to our contentions may be prepared and given to our Advocates.
Our captains would have taken appropriate decisions as to the next step,
if any, to be taken in the light of the LIC’s response to paying 20% of our
claim as per the directive of the SC. There appears to be no clear cut action
and many of us are talking about the intransigence of the LIC to the SC order.
As I have earlier written, I strongly feel there should be no attempt to drag
the LIC over the coals, through another contempt petition, for the simple
reason we may miss the woods for the timber, and lose precious time and money.
The contempt course may well drag on and our date 23-9-15 may be missed in the
process. We will not gain anything through a contempt petition, expect delay in
the final hearing of the case. I have suggested that we may move a prayer to
the SC to fix an early date for final arguments and can mention the reluctance
of the LIC to obey the orders of the SC. I feel, there is nothing wrong even if
we submit that LIC is not interested to implement the SC’s directions and are trying
to delay the judicial process, we are not interested to initiate contempt
proceedings, which, if the SC feels, may be done at the pleasure of the Court.
Our prayer should be for an early final hearing, in view of the fact that the
Respondents are senior citizens in their 70 & 80’s and every passing day is
reducing their numbers.
Now coming to the points of our final arguments, I seek your indulgence,
if you are feeling bored reading the same points on which I have been writing
time and again. The purpose of this imposition is not to leave any points since
we have to throw all our weapons at our adversaries, so as to cause maximum
damage.
Technical points can be relegated to the last. The strongest point in our
case is the decision of the SC in Nakaras case holding that there cannot be a
division of the retirees into batches by their retirement dates, for the
purposes of extending benefits, and denial of any benefits by such a method of
segregation is discrimination, amounting to violation of the Fundamental Rights
under the Constitution of India. Nakara’s case was decided by a Constitution
Bench of the Supreme Court consisting of 5 Judges and the Bench of two judges
hearing this Appeal will have no difficulty or reason not to follow suit. A
number of cases have been decided by different courts by following this ruling,
and this ruling is the law of precedence established. Once this point is
established, there is no place for any contrary view. There is also no remedy
against a violation of the constitution except to follow the law laid down by
the court. It is a well established legal principle that there cannot be an estoppel
against a statute and more so against a constitutional proviso. There is no
logic to hear, again and again, this accepted principle. Pleas of cost or the
so called ‘ripple effect’ are irrelevant, for the simple reason that the
benefit will accrue only to a few, who retired from the services of the LIC
during the period 1-4-86 to 31-7-97. It is to be remembered that the pension
scheme itself was introduced only in June 1995, with the benefits extended to
those retired from 1-4-86. It is also to be remembered that pay scales were
much less then. Further pay scales were revised in 1997 and the increased benefits,
including pension, were given to the serving employees, who are much larger in
numbers than those retired after 1-4-86. Therefore, the logic of ripple effect
is only imaginary. LIC is seeing the ripple effect only now, but not at the
time extending pay revision in 1997 to a much larger number of serving
employees, whose pay scales were revised upwards. Therefore the ripple effect
is only a mirage in the sight of the LIC. The LIC had itself, in a note
submitted to its Board for consideration, accepted that there are serious
anomalies in the pension rules that require to be rectified and the cost, estimated
by its own Actuaries, is not large and can be easily absorbed.
The HC’s and the SC are only the two authorities to decide on the
violation of the Constitutional provisions and take appropriate decision to
give relief in such cases, to the affected citizens. The Legislature, Executive
i.e the Govt. and the Judiciary swear to preserve and protect the Constitution
before they take Office but only the Judiciary is vested with power to proclaim
and punish such violation. That being so, how a High Court Judge, while deciding
a case for establishing this Fundamental Right, said to have committed an error
or is it not empowered to do it ? Is the Govt. not aware of the Constitutional provisions
on Fundamental Rights. The SB of the Jaipur HC has not decided the case giving
its own interpretations, although entitled to do so, but found exact similarities
of our case and in the Nakaras case, with regard to grouping of retirees on the
basis of their respective retirement dates and therefore simply followed the SC
decision, which it is obliged to. If the Govt. has accepted the ruling of the
SC in Nakaras case, how can they say now that the HC Judge has erred, when his
decision is in line with the decision of the SC. Why the Govt. have accepted
similar judgements, in favour of some of the Govt. employees ?.
When discrimination is established beyond doubt, can anything be done to
avoid that, contrary to the oath of Office taken by the Executive. Can such a
decision be denied by simply sleeping over it or contending that a judgement is
subject to the consent or approval of the Govt. . It is not contemplated in the scheme of the
constitutional form of government we practice and in any system of democracy.
Our Constitution provides for the supremacy of the judiciary in matters of
interpretation of law, to avoid misuse or abuse of power by the other wings of
the democratic set up, lest every judgement that is against the ruling party
can be vetoed by them. This is to ensure justice and fair play. The substance
of this principle is to establish the rule of law. That being the case, there
is the constitutional obligation that nobody shall be punished other than by an
established law and every law is subordinate to the Constitution of India. An executive
order or rule made the Govt., such as the one made under Sec.48 of the LIC Act,
shall be lawful and within the ambit of the constitution. Discrimination, as in Nakaras case, is an
eminent example of this principle. The SB of the Jaipur HC had no choice, in
view of the clear cut finding of the SC, on grouping of the retirees as
mentioned earlier. The contention of the LIC that without a notification, it
has no authority to carry out the orders of the HC becomes untenable. . In law,
a person has to speak where he should and silence cannot be interpreted by someone else as an act
and such silence can only go against him, who is expected to speak, as held by
the D.B of the Rajasthan HC. The recent case of our friend Shri M.C.Jain, where
the LIC has carried out the decision of the SC, belies this contention, in our
pension case. That is why I am repeatedly saying that even if the Govt. issues
a new notification denying the benefits of the judgement, it shall not be
valid. Over and above, the notification issued under
Sec.48 of the LIC act giving benefits of higher neutralisation still stands and
is valid and acted upon by the LIC. The
SB of the Jaipur HC has given a harmonious reading to remove the discriminatory
and unconstitutional part of the notification and held the benefits shall be
applicable to all retirees as a single class. There can undoubtedly be no
challenge to this fact. Where then is the need for another notification ?
There is also an accepted principle that once
an action is held as illegal, it cannot be enforced in an indirect manner.
There cannot be a back door entrance when main door entrance is blocked by law.
But unfortunately, these two points were not placed before the HC’s SB or DB’s.
Had this been done, there would have been no arguments on Sec.48 entitlements
of the Govt. We must put forth this principle VEHIMENTLY, quoting the precedents.
Every legal point/weapon in our armoury should be thrown against such silly
arguments. Thus far, I believe, our case for equal treatment with our other
retired friends will certainly succeed.
Now let us see our arguments on revision of pension.
LIC is well known for creating anomalies such as the one during 1975-1985,
when for instance, an Officer of the rank of a Divisional Manager was getting a
total pay less than his own stenographer. The revision of 1997 resulted in
gross injustice in two employees recruited on the same date, but one in a
higher cadre four steps ahead than the other, as a result of promotions earned, getting a
smaller pension than the one who retired in a lower cadre. Even where two
employees on the same grade and appointed on the same date who retire, say on
1-7-97 and the other on 1-8-97, the one who retired earlier will get a much
lower pension. The LIC was aware of this injustice, as its recommendations to
its Board, was as a result of this realisation. Still no action was taken to
redress the grievance and every imaginary argument is advanced to deny
equality. The Govt. is prepared to extend OROP to the armed forces now. The Vth
& VI Pay Commissions
Recommendations contain provisions for giving increases in pension. The LIC Pension Rules are drafted on the
lines of the Central Govt. Pension Rules. The chairman of the LIC is empowered
to adopt the Central Govt. Pension Rules in situations where LIC Pension Rules
are not clear. In fact he can even implement the Order of the SB of the Jaipur
HC. Now there is the latest demand, by our own Law Makers, to enhance their pension
by as much as 75%. It is reported that the Govt. is planning to introduce a Bill, in the Monsoon
session of Parliment, to rectify an anomaly under which the Judges selected and
appointed from the Barto the HC Bench, get lesser pension than those from the
State Judicial Services. This proposal to amend the
High Court Judges (Salaries and Conditions of Services) Act, 1954 is coming
more than a year after a SC ruling that such a discrepancy must be removed. As compared with all this, LIC pensioners are
only seeking to remove the acknowledged anomalies that have crept in. The
liability arising is, a fast reducing sum for the simple reason that the
revision is applicable only in the case of a very limited number of pensioners
whose age is now more than 70yrs. There appears to be no application of mind,
in the decision and in the approach to file appeals, without any valid legal or
moral responsibility.
Not appreciating the recommendations of its Board, acting on the basis of
LIC’s own brief to it, which the LIC said was to remove anomalies that have
arisen, tantamount blowing hot and cold and insensible. It is to be remembered
that the LIC Board consists of two members at Secretaries level of the Govt. besides
others nominated. The Secretaries level representatives of the Finance Ministry
after going with the resolution, turn head down, soon after reaching their seat,
to say no to the same recommendation. Were they not aware of the agenda for the
Board Meeting and come prepared. The SC should see through the game of holding
with the hare and running with the hound, adroitly adopted here. In such a case
where is the need for an ornamental and dumb Board and a representation for the
Govt.
And finally let us consider the technical points and the logic of the present
Appeal. The Govt. was made a party to the writ filed before the SB of the
Jaipur HC. The Govt. appeared and argued the case through their counsel. After
losing the case, LIC alone appealed against the decision of the SB. The DB had
given specific notice to the Govt. to specially hear the Govt. but the Govt,
did not opt to file even an affidavit. Under the circumstances, after many
adjournments, the DB of the Jaipur HC concluded that Govt. have no grievance
and held that by the decision of the SB, the LIC has no grievance and dismissed
the appeal. The Review petition of the LIC was also dismissed for devoid of
merit. The special leave petition of LIC was also dismissed. The dismissal
is for a technical reason but is that the only one reason. In my opinion, the
stronger and more pertinent legal point is, according to the decision of the DB
itself, the LIC, being a separate person besides the Govt., is not aggrieved
and in the circumstances of the case, the points raised on Sec.48 Of the LIC
Act and by the decision of the Court, if at all there is legal grievance, it is
only the Govt. that is aggrieved. There is no contest by them before the DB and
therefore, LIC by itself, has no cause of action to file the Special Leave
Petition or the Appeal. With no lis, the Appeal itself is not
maintainable. The writ filed against Sri Asthana is also not maintainable. He
is a humble citizen trying to establish his right under Art.14 & 16 of the
Constitution of India. What is that the Govt. trying to enforce by the writ,
which with all its power vested under various statutes the Govt. is not able to
enforce? And what the Judiciary can do if the Govt. itself feel helpless. The
judiciary can only interpret laws and the Govt. if it feels helpless, their
choice has to surrender. Their option was to seek legal remedy and by
not choosing to file an appeal, they have surrendered that right course of
action. The writ petition now, is only an attempt to get a (lost) foot hold in
the case. They are trying to get a new definition of, perhaps, the Nakaras case
and that is asking for the re-examination of that decision. It will be
therefore a hypothetical case as well as the other points raised in the Appeal.
There are no new points of law that have been argued and any other proposition
is best suited for an Academic discussion in a mock trial in a law school.
Perhaps news paper reports of a letter written to the Prime Mininster by one of
his own party member, high lighting the “poor judgement” of the law officers
and its own Secretaries pertinently applies in our case, where a legal
principle established by the ruling of a Constitution Bench is sought to be
annulled, to clothe the Executive with the veto power by pleading that a High
Court Judgement is subject its nod. It
is clear with the right of appeal lost due to failure to appear before the DB
of the Rajasthan HC in the appeal, review petitions, the SLP, the Govt. has
foregone its right to hear and perhaps the present writ petitions against Shri
Asthana, are an afterthought of the doubt on the maintainability of the Appeal
itself.
In the ultimate analysis, there is no doubt that the LIC is engaged in a
vexatious litigation, inviting exemplary damages. Our case is very simple that
may be disposed without much arguments and let me conclude by saying: This appeal is against the finding of the Supreme Court,
that there is discrimination in grouping the pensioners into groups, for the
purpose of conferring benefits. The HC’s had no difficulty in deciding because
of the clear cut decision of a Constitution Bench of the SC, which they have
correctly followed. Once breach of a
Fundamental Rights is established, the smudge of illegality arising cannot be
washed away by the Govt. The Govt. is bound to act as per the direction of the
HC/SC. All the other arguments raised are irrelevant and the Appeal by the LIC is
not maintainable and the writs by the Govt. ill conceived and devoid of merit
for the reason they have forfeited the right of appeal and the appeals are
hopelessly time barred. There is no scope for the SC to determine, if there is
any reasonable delay, recognisable in law, to condone because legal right once
lost is irredeemable through any other process. The Govt. having not opted to
contest, their lost chance is attributable only to their callous attitude at
the relevant time. A writ is not a solution and there is no illegality in the
decision of the HC’s. A writ petition is not an appropriate solution in the
face of negligence to file an appeal. LIC is not a party considered aggrieved
by the DB of the Jaipur HC. The Govt. is not a party before that Court at all
and there is no judgement against the Govt. to be appealed against.
Friends, these are my
thoughts and every one of the pensioners, especially those with legal back
ground, may add, supplement or record their difference, so that a considered
view is before our captains to prepare the grounds of our defence.
A.S.Ramanathan,
09676840504- 040 23117170
