REVIEW PETITION

M SREENIVASA MURTY MAY 26, 2017

FROM THE HYDERABAD ASOCIATION

Dear ALL LIC Pensioner colleagues & Family Pensioners,

REVIEW PETITION AGAINST THE DHC JUDGEMENT DATED 27 APRIL 2017

The jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Civil Procedure Code empowers a court to review its order if the conditions precedents laid down therein are satisfied.

Order 47, Rule 1 of the CPC provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for

Any other sufficient reason.

What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate.

There is no doubt therefore that a Review Petition is a right and an opportunity, for the aggrieved, to go before the same Bench and seek justice by reviewing its own order. Law apart, whether a Review Petition would be entertained at all, or it is allowed or dismissed AFTER hearing the parties concerned, depends entirely on the judicial discretion of the Bench. What is good and sufficient reason for a review in the opinion of the Petitioner may not be so, according to the Bench. It is better to be aware that in practice, a decision being reversed in part or full, as a result of a review, is rare if not impossible.

In our situation, there has been lot of noise for and against a Review Petition, mostly from individual Pensioners. I shall not say they are all uninformed about the legal nuances involved. Some are undoubtedly competent to hold a view this way or that way. But I must say this,

viz., many individual pensioners who strongly came out opposing the idea of filing a Review Petition, did so keeping their personal stakes in mind. Nothing wrong in it too. I will touch in the later part of this Post, and explain to the best of my ability how, a Review Petition, as and when filed, whether it helps big or not, shall not damage anybody’s interests, directly or indirectly.

It would have been a different story if only any Petitioner-organization came out with its decision against a Review Petition, giving valid reasons backed by sound legal advice they might have obtained from their Counsel. Because any decision by a Petitioner-organization, cannot be that of its President or Secretary, individually. It enjoins higher responsibility and accountability.

Hyderabad Association, after extensive consultations with its Counsel, decided that the legal right and opportunity to file a Review Petition against the DHC Judgement dated 27 April 2017 shall be exercised. It is the considered opinion of the Association and its counsel, that not filing a RP is an easier option now but may prove costly in the medium and long term when a regular Appeal (via a SLP) comes up for a decision before the Apex Court. Accordingly, we took the hard decision, a text book one, if I may say so. We told ourselves, we cannot shy away from the responsibility to act as required and should also bear the brunt, financially as well as in terms of days and days of hard work for preparation..

Before going any further, I must record my deep disappointment that, in spite of my repeated pleas that we meet and exchange views, share our thoughts & plans and arrive at best solutions based on collective wisdom, have evoked no response from any except one phone call from Sri SS Saxena, when he merely informed me that they may not go for a Review.

Be that as it may, what scares me is a distinct possibility that our actions and strategies in the coming months, will not be different from what happened up to 21 February 2017, while we pursue our

SLPs before the Supreme Court. That the Hon’ble High Court came down heavily against us for our ‘conflicting’ approaches, seem to have had no effect on us. I may conclude the topic with an observation that even now it is perhaps not too late to make amends.

Before sharing below our grounds for the Review, I must refer to the recent Communication of AIIPA, addressed to the Chairman (otherwise very well written, true to its reputation and for that matter, the letter to Chairman, sent by Sri GN Sridharan, was also impeccable). The AIIPA had demanded among other things, the implementation of the Board Resolution in toto. Have they failed to notice or have they consciously ignored the dangerous fact that the DHC Judgement observed that the Supreme Court ‘held’ the Board Resolution to be ‘non-est’. Till such time as the fatal finding by the DHC, that too wrongly attributing the same to the Supreme Court, is reversed either by the DHC itself (very unlikely though) or the Supreme Court, is there any point in demanding implementation of the Board Resolution in toto? Where are the takers for your demand? And no petitioner thinks it necessary to question the DHC for trying to snap our life line. It has become fashionable to claim ‘we have decided to go straight to Supreme Court by filing a SLP’.

Review Petition may not (perhaps will not) yield any benefit. Filing and failing and not filing at all, are not the same. A remedy available in law is meant to be availed.

GROUNDS FOR THE PROPOSED REVIEW PETITION BEFORE THE DHC AGAINST THE JUDGEMENT DATED 27 APRIL 2017 IN WP NO 4894 OF 2016

ERRORS APPARENT

1. “The Supreme Court vide its Judgement and order dated 31st March 2016 held that the Board Resolution dated 24th November 2001 …………………………..was non est……..’’

DHC finding vide Para 3 on Page 5 of its Judgement dated 27 April 2017

FACT: Hon’ble Supreme Court of India referred to the Minutes as well the Board Resolution dated 24th Nov 2001 extensively in its Judgement and order dated 31st March 2016. Refer Paras 8, 9 & 10.

Also refer Line 6 of Para 15 which reads: ‘The Board has passed the Resolution. The Board can pass a Resolution and the Chairman can be the head of the Board but it does not authorise the Board to take a decision with regard to certain matters…………’’

Refer Para 26 (midway) which reads: “That apart the Corporation should have been gracious enough ………and the Union of India should have come with an affirmative response when the resolution was passed by the Corporation’’.

Para 29 Line 12 reads: ‘’…….that the resolution could not have been given effect to without framing a rule by the Central Government’.

In view of the observations of the Supreme Court as seen from the above extracts of the judgement dated 31 March 2016, it is clear that the Supreme Court has NOT HELD anywhere that the Board Resolution was non est and the DHC had clearly erred in its conclusion in Para 3 to the contrary.

2. The Hon’ble High Court, while granting relief of higher % of DR to be paid to certain categories of Pensioners, on the basis of the principles laid down in the Judgement, omitted to grant the same relief to others similarly placed and who also fulfil the criteria

prescribed by this Hon’ble High Court. The relief granted and the rationale laid down by the Hon’ble High Court, is reproduced below:

“Along with written submissions Corporation has filed Annexures. As per Annexure A an employee who was entitled to basic pension of Rs. 5000/- on retirement would be entitled to pension after giving benefit of indexation in paragraph 1 of Rs.24,681.88 and in case percentage of 0.23% is computed on Pension above 2130 would be enhanced to Rs 27634.95 Similarly in case of an employee covered under paragraph 2, who was given an initial basic pension of Rs.5000/- his pension on indexation under paragraph 2, would be Rs.17,286.17 whereas in case he is given benefit of indexation of 0.23% on the pension amount of Rs. 3851 and upwards, he would be entitled to pension of Rs.19,489.50/-. Thus on indexation of 0.23% on higher amounts, the retirees covered under paragraphs 1 and 2, would get greater/higher benefit. They would be entitled to the said benefit.

It is respectfully submitted that the initial basic pension of Rs.5000/- shown by LIC in Annexure A filed by it in the written submissions, is hypothetical (non-existing) and misleading because no employee retired prior to 1/4/1993 and falling under paragraph 1 had Basic Pension of Rs 5000. Maximum in the cadre of ED was Rs 3500 for pre April 1993 retirees. Even the maximum basic Pension of Chairman & MD prior to 1/4/1993 was Rs.4000 only. So the figure of Rs. 5000 as Basic Pension for pre-April 1993 retirees included in the Chart supplied by LIC is fictitious and even misleading. Consequently the directions of this Hon’ble Court that ‘’they would be entitled to the said benefit’’ can be applied to the categories

specified in the directions, only with reference to the basic pension up to Rs. 4000 under paragraph1.

Without prejudice to the above submission, the relief granted by this Hon’ble Court to the specified categories through judicial directions, upheld the following:

A) The existing dispensation of LIC’s Pension Scheme offends Article 14, being discriminatory, in respect of certain categories of pensioners falling under Para 1 & Para 2 of Annexure IV.

B) Such categories are therefore entitled to relief through higher DR percentage by following the correct neutralization formula as directed.

C) Consequently i) No category of Pensioners covered by Para 1 should receive lesser DR % than what is paid to those covered in Para 2 who are in similar Basic Pension Range and ii) No Pensioner covered in Para 1 or Para 2 should receive DR % less than 0.23% which is granted under Para 3A to every pensioner.

The findings/conclusions as well as the orders of this Hon’ble Court are tabulated below for easy appreciation. (I) Existing dispensation
Para 1 of Appendix IV 01.01.86 to 31.10.93			Para 2 of Appendix IV 01.11.93 to 31.07.97					Para 3A of Appendix IV 01.08.97 to 31.07.2002
Basic Pension Up to 1250 (1)	0.67			Basic Pension Up to 2400 (1)			0.35			0.23 % Uniformly for all amounts of Basic Pension
1251 to 2000 (2)		0.55			2401 to 3850 (2)				0.29
2001 to 2130 (3)		0.33			3851 to 4100 (3)				0.17
Above 2130 (4)		0.17			Above 4100 (4)				0.09
(II) Relief granted by judicial directions by this Hon’ble Court on the basis of the principle laid down as stated under Para 2 C) above
Para 1						Para 2
For category under (4) above drawing basic pension up to Rs 3850, DR @ 0.17 is directed to be enhanced to 0.29 as applied to Category (2) under Para 2 and for basic pension above Rs 3850, DR of 0.23% directed to be applied as under Para 3A.						For categories under (3) & (4) above, DR @ 0.17 & 0.09% respectively are to be enhanced to 0.23 as applicable under Para 3A .
(III) Unintended omissions in granting relief and the categories affected in terms of the principle held and stated under c) above.
Para 1
1.DR now paid @ 0.33% given to Category (3) above (2001 to 2130) should be increased to 0.35%
2. DR @ 0.17% now paid to Category (4) above (Above 2130) should also be increased to 0.35% up to 2400 retaining 0.29% as already directed, from 2401 to 3850.

It is respectfully prayed that appropriate Orders be passed to include the categories at (III) above also, for grant of relief in terms of the principle laid down by this Hon’ble Court.

3. This Hon’ble Court had granted nine months’ time to the respondent Corporation to determine the eligible pensioners for the relief granted and one year to make the payment of arrears without interest. It is respectfully submitted that the time granted by this Hon’ble Court is unreasonably long and even unfair, as the beneficiaries for the relief granted are only those who retired before 01.08.1997 and already identified. The entire data in respect of these Pensioners is readily available with the Respondent Corporation and also used in connection with the payment of interim relief of 40% purporting to be as per Para 3A of Appendix IV. With the

latest technology at it command, the Corporation should be able to make necessary calculations within a few weeks and keeping the fact in view that the affected pensioners are all septuagenarians and octogenarians, the unduly long time granted to the Corporation may be reviewed and appropriate Orders be passed to make the payment to the eligible pensioners within Six Weeks.

These submissions for Review are made to this Hon’ble Court, without prejudice to the legal rights available to the petitioners to carry the matters in Appeal to the Apex Court in respect of all other prayers not granted

(to be continued) to explain, how filing of Review Petition harms nobody