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Thursday, April 11, 2013


In the affidavit submitted by Life Insurance Corporation of India, LIC has stressed its arguments once again.  They have stated "...the most vital point now arises for consideration is concerning Sec.21, 48 and 49 of the LIC Act 1956.  The approval by the Board on 24-11-2001 cannot tantamount to an amendment.  The Central Government has to finally amend and make rules, unless and until the same is done, Board Resolution is of no consequence.

The LIC then goes on to reproduce Sec. 21, 48 and 49 of LIC Act and says, "It is submitted that the Board Resolution dated 24-11-2001 cannot and by any stretch of imagination do offence to the statutory scheme of the above mentioned sections.

LIC has also stated: "It is respectfully submitted that the Board Resolution dated 24-11-2001 is a recommendation to the Central Government to approve grant of 100% neutralization of Dearness Relief for pensioners retired prior to 1-8-1997 and to amend LIC of India (Employees) Pension Rules 1995 to this effect.  The Corporation does not have power to amend pension rules which are statutory rules notified by the Central Government in terms of Sec. 48 of LIC Act, 1956. "

Approval by the Board cannot tantamount to an amendment, the Central Government has to finally amend and make rules, unless and until the same is done, Board Resolution is of no consequence etc. are LIC's arguments. 

They have repeated their arguments.  LIC is at it onceagain!

Please click on 'Read more' below for full text of Shri Asthana's rejoinder.



REJOINDER FILED BY SH. ASTHANA

IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISDICTION)
I.A. Nos. 7 – 8 OF 2013
IN
SPECIAL LEAVE PETITION © NOs. 29956-29957/2011
***
IN THE MATTER OF:
Krishna Murari Lal Asthana
Applicant/Respondent No. 1
Versus
Life Insurance Corporation of India
and others Respondents
AND IN THE MATTER OF:
Life Insurance Corporation of India & Ors Petitioners
Versus
Krishna Murari Lal Asthana & Ors Respondents
***
REJOINDER TO REPLY TO APPLICATION FOR DIRECTION
I, Krishna Murari Lal Asthana, aged about 74 years, son of late Shri Ram Saran Lalji Asthana, resident of B-8, Shanti Nagar, Ajmer Road, Jaipur, at present at New Delhi, do hereby solemnly affirm and state as under:
1. That I am the Applicant/Respondent in the above application and as such I am well conversant with the facts of the case.
2. That before adverting to the reply to the Preliminary Objections and parawise reply to the Application I crave indulgence and leave of this Hon’ble Court to submit that during the course of discussions on 15th March, 2013 this Hon’ble Court was pleased to seek clarification from the Senior Advocate appearing on behalf of the Petitioner (LIC) to clarify as to whether any amount was deposited in pursuance of its order dated 17/10/2012 in the matter of revision of pensions and this Hon’ble Court was pleased to direct to submit the reply to the Application within two weeks and to put up after three weeks. But the Petitioner (LIC) did not submit the reply within the period, which expired on 29/3/2013 and since there were holidays on re-opening of the Court on 1/4/2013. This shows that the Petitioner (LIC) has no respect to the orders of this Hon’ble Court.
3. That the Petitioner (LIC), as in the past time and again been doing, has not furnished the reply to the specific query of this Hon’ble Court and are trying to mislead the Hon’ble Court. This Hon’ble Court was very specific as to whether any money had been deposited in the matter of revision of pensions, which is the subject matter of the Contempt petition filed in the Writ Petition No. 654/2007 and the stay order had also been clarified to “from the date of retirement” and “the amount of eligible retirement benefits”. This meant that the amount due on account of revision of pensions as and when new Pay scales came to be substituted. The example given by the Petitioner (LIC) shows that it contends that it had revised the pension for the month of October 2012 to Rs. 6663/- while as per the judgment in writ petition this should have been Rs. 17,230=00 plus other ingredients accountable for pension and Dearness Relief. Thus it is not admitting that the compliance of the order of this Hon’ble Court had deliberately not been made, but are trying to make deliberate and intentional misrepresentation before this Hon’ble Court.
4. That the Preliminary Objections again show that whatever may be the verdict the Petitioner (LIC) is not going to comply with the same for one reason or the other coined by them for their own purpose.
5. It is submitted that the I.A. under consideration had to be filed on account of the Petitioner (LIC) not complying with the judgments and orders and the High Court not taking any action. The statements made in the Preliminary submissions have already been decided not only by Rajasthan High Court on three occasions but also by Punjab and Haryana High Court and Delhi High Court in the matters of LIC Pensioners wherein they have affirmed the judgment of Rajasthan High Court. But still the Petitioner (LIC) is harping on the same issue.
6. That Para ‘A’ of the Preliminary Objections shows mis-statement on their part. IA No. 3 had to be moved when the Chairman, Managing Director and Executive Director (P) had shown their ignorance as to what the term ‘AMOUNT DUE TO EMPLOYEES” used by this Hon’ble Court in its order dated 14.11.201 mean. This IA was an outcome of their own act. The sum of Rs. 1500/- crore plus 100 crore was also given by the Applicant-Respondent as was asked by this Hon’ble Court on the basis of the estimation which the LIC avoided to give inspite of the fact that all the data was with them.
7. That on account of the above this Hon’ble Court had to pass clarificatory order on 17/10/2012. In this order again this Hon’ble Court was pleased to stay the operation of the judgment in contempt petition subject to the Petitioner (LIC) depositing the AMOUNT DUE TO THE PENSIONERS I.E. WRIT PETITIONERS” from the ‘DATE OF THEIR ELIGIBILITY TO GET RETIRAL BENEFITS”. Again the Petitioner (LIC) played the same game and deposited a namesake amount, which does not at all conform to the verdict as has been submitted in the present I.A.
8. In regard to paras ‘B’ while the reproduction of the prayer in the earlier writ petition is admitted except that the Petitioner is seeking more than what has been granted. In this connection it is submitted that-
i) this is not the issue which has to be decided at this stage, here the question is non-compliance of the judgment dated 12/1/2010 in S.B. Civil Writ Petition No. 654 of 2007 wherein the High Court had after reproducing the prayer in this case and discussing the whole law on this subject allowed the writ petition with the direction that “there cannot be discrimination amongst the pensioners on the basis of the date of retirement.” This means that revisions of pensions have been directed to be done as and when substituted pay scales came into effect. This cannot be clubbed with the Board’s decision dated 24/11/2001.
ii) The judgment dated 12/1/2010 as affirmed by the Division Bench both in special appeal and review petition and also by the Division Bench of Punjab and Haryana High Court and the Division Bench of the Delhi High Court.
iii) In contempt proceedings the validity or otherwise of the judgment cannot be gone into by the executing Court.
iv) That the question of prospectivity of the implementation of the Board’s Resolution was also examined. While it was stated at bar on behalf of the Central Government that the Board is competent to take its decision and there was no requirement of approval of the Board’s decision. Not only this the Division Bench has also given umbrella to the Petitioner to LIC to implement the Board’s decision. Yet in order not to give benefit to the Pensioners the LIC is persisting on this ground while it is not its concern but if at all it is the concern of the Central Government which has never objected to the said commitment given before the Court. It is further submitted that prospectivity has some limit but in the instant case it is made unlimited by the Petitioner. They cannot take advantage for want of such a provision in the Section 48 as has been reproduced in this reply itself.
v) That from the contents of the reply it is clear that the Petitioner (LIC) that it has no respect to the judgments of the Courts since according to it the Central Government is above the High Court and the Hon’ble Supreme Court and as such they are not complying with the judgments.
vi) This Hon’ble Court did not grant any stay in the earlier S.L.P. except till decision of the review petition and the High Court by specific order rejected the stay application. Thus there was no stay.
vii) On 14/11/2011 this Hon’ble Court had given only conditional stay subject to deposit of AMOUNT DUE TO EMPLOYEES. This amount can be only as per the judgments of the High Court (both Single Bench and Division Bench) but still the Petitioner (LIC) acted in such a manner as if there was no direction against them.
viii) Then this Hon’ble Court further clarified its order dated 14/11/2011 by order dated 17/10/2012 when it clarified the earlier order to the effect “AMOUNT DUE TO THE PENSIONERS I.E. THE WRIT PETITIONERS” with effect FROM THE DATE OF THEIR ELIGIBILITY TO GET RETIRAL BENEFITS”. But the Petitioner (LIC) still continued their contemptuous act and did not deposit the correct amount. Detailed submissions in this regard are given in the I.A.
ix) It is incorrect to say in para ‘I’ that the application of the Petitioner is premises on Central Government employees’ pension, no where the Central Government rules have been relied upon by the Petitioners in their writ petition. What they prayed for is to fix the pay of the pensioners in the substituted pay scales from the date they come into effect in the same manner as is done in the case of in-service employees and fix pension at 50% thereof. Rest of the contents of para ‘I’ are totally false and incorrect. For purposes of revision/updation/upgrading of pension all the pensioners who retired on or after 1/1/1986, the date from which the Pension Rules have been made applicable, are to be given benefit of revision of pensions as in the year 1993, 1997, 2002 and 2007 and future dates whenever revised pay scales come to be substituted.
x) The contention of the Petitioner (LIC) in para ‘I’ in the second para on page 62, it is most respectfully submitted, affirms that in their view the Central Government is over and above the Courts and this act amounts to contempt of this Hon’ble Court as well as the High Court and in one manner denial of their existence. What matters to them is the Central Government and the verdict of the Court has no meaning.
xi) It is submitted that the question of Sections 21 and 48 has been duly concerned. Section 21 deals with matters of POLICY INVOLVING PUBLIC INTEREST. This has no relevance to the present case since it is not a matter concerning Policy involving public interest. It is worth submitting that the Petitioner (LIC) is itself violating the National Litigation Policy which is a matter of public interest, similarly, it is misusing the policyholders’ money in an indiscriminate manner of which they are the trustees, no directions in this regard have been obtained from the Central Government.
xii) It is further submitted that the matter of revision of pensions is not at all concerned with Section 48 rather it is already provided in Rule 55 of the Pension Rules and the Chairman has always been revising the pensions in exercise of his powers under Rule 55 of the Pension Rules. In this connection a copy of the Circular issued by the Chairman in exercise of his powers as vested in Rule 55 of the Pension Rules is submitted herewith for the kind perusal of this Hon’ble Court and marked ANNEXURE . Besides, a perusal of the Sections 48 and 49 of the LIC Act would reveal that there is no prohibition on revision of pensions. Therefore the whole contention of the Respondents is false and frivolous. These Sections in no manner apply to the case of the Pensioners.
xiii) It is further submitted that the Notifications providing for substituting new pay scales from particular dates are applicable to employees and since the Petitioners are also employees as per the Pension Rules, those substituted pay scales automatically come to be affected to them from the date such substituted pay scales comes to be substituted at the rate of 50% thereof. The “employees” cannot be distinguished on account of whether they are in service or have retired in absence of any such provision in the Notifications. For this reason also neither further approval of the Central Government nor Notification is required to be issued nor have ever been issued and the Chairman in exercise of Rule 55 has implemented the same but arbitrarily and deliberately excluded the employees getting pension.
REJOINDER TO PARAWISE REPLY ON MERITS:
1. That the contents of para 1 of the reply are denied. The very reason for moving the application has been mentioned in this para. It is because of the order of the High Court that the Applicant has to move this application. For this the Petitioner (LIC) is also responsible.
2. That the contents of para 2 of the reply are denied. This has been considered and decided not only by the Single Judge but by the Division Bench of the Rajasthan High Court and then by the Division Bench of Punjab and Haryana High Court and Delhi High Court. The downloaded copies of these two later judgments are submitted for the kind perusal of this Hon’ble Court (ANNEXURES____). Since the SLP of the Petitioner (LIC) has not been admitted by this Hon’ble Court and since the conditional stay has not been honoured this question cannot be raised and that too at the stage of Contempt.
That in this para the Petitioner has reproduced the contents of some affidavit filed by the Central Government, but the Petitioner (LIC) has deliberately withheld the Rejoinder filed on behalf of the Respondents.
Furthermore, when Central Government gave its consent some contrary view expressed in other proceedings cannot be taken into consideration more particularly when that writ petition is still not decided, while the proceedings in the present SLPs have already been decided and at no stage the Central Government has inspite of notice come.
There is no concern between the Banks and the Insurance or between one institution with other and on this basis the fundamental rights of a person cannot be curtailed. Even otherwise there is a vast difference between Banking sector and insurance sector.
As regards modification of the Pension rules it is concerned that the judgments in the present case as referred to above have to be applied on the principle of “reading down” and those provisions have come to be amended automatically in consonance of the various judgments.
3. That the contents of para 3 of the reply are denied. In the present case the Board Resolution does not come into picture since it is a matter of revision of pensions simplicitor as and when the new pay scales came to be substituted and the matter of DR is subject matter of another writ petition No. 6696/1998 therefore, this contention is not sustainable. However, it is submitted that the Petitioner is trying to avoid revision of pensions and giving the shape of DR and with this aim in view when Allahabad High Court wanted it to submit details of the cases pending in various High Courts the Petitioner (LIC) submitted the list of cases branding all of them to be concerning DR irrespective of whether they concern DR or revision even distantly. In this connection the applicant is submitting the list of cases submitted by the Petitioner (LIC) in Allahabad High Court along with subject matter of such cases in another sheet. Since the matter in question before Allahabad High Court is strictly and solely with regard to revision of pension and verbatim the same as that of Writ Petition No. 654/2007 in Rajasthan High Court and for this they cannot mislead any court.
As regards conditional stay granted by this Hon’ble Court twice it is submitted that on both the occasions the Petitioner (LIC) has not played fairly and misused the same, therefore they are not entitled to any further latitude, rather action deserves to be taken for appearing before the Hon’ble Court with unclean hands knowingly and deliberately to mislead the Court.
The other contentions with regard to I.A. No. 3 of 2012 and the direction given are totally false as submitted herein above.
4. That the contents of para 4 of the reply are also denied being deliberate wrong statements on the part of the Petitioner (LIC). It is clear and admitted that the proceedings have been stayed in the Contempt petition No. 760/2010 and the same was in respect of revision of pension therefore, the stay was in that respect of revision of pensions only but deliberately the Petitioner (LIC) is giving the shape of DR, in respect of which no contempt petition has been filed requiring any stay. The contention of the Petitioner in this para and in the whole of the reply is thus proved to be false and deliberate mis-statement.
Furthermore the revision has also not been made properly since the Board had resolved to upgrade the pension with addition of 11.25% on the total amount of DR and basic pension as it comes on 1/8/1997. This amount of 11.25% has not been added.
Furthermore, while depositing the said amount further revisions have not been taken into consideration with the result the amount of seven pensioners has not been deposited.
The amount in respect of those Petitioners for whom the amount deposited has not been deposited from the date of retirement, which means neutralization of Dearness Relief has not been done from the date of retirement as was directed by this Hon’ble Court. As submitted above the calculation given is wholly incorrect. As on the end of the month of October the pension of the Applicant on the basis of which the amount should have been deposited comes to Rs. Rs. 17,230=00 plus other ingredients accountable for pension and Dearness Relief and the difference should have been from 1/8/1997 accordingly.
5. That the contents of para 5 of the reply need no reply, the contents of this para in the application and submissions made in this regard in the preceding paragraphs are reiterated.
6. That the contents of para 6 of the reply are denied, when the Petitioner is playing a game of hide and seek and mis-statements before the Courts they are not entitled to make any objection when the Applicant has submitted the actual position as is depicted from the order itself.
7. That the contents of para 6 repeat are reiterated. The Applicant has submitted the correct position.
8. That the contents of para 7 of the reply are denied again being a wrong statement persisted by the Petitioner (LIC). It cannot be said that the Petitioner is not able to decipher as to in what respect the contempt petition has been filed. The Board Resolution has no concern with the contempt petition.
It is incorrect to say that in respect of the five petitioners no amount of difference is payable. Does the Petitioner say that in respect of them the judgment of the High Court had no meaning. This shows non-compliance of the conditional stay order passed by this Hon’ble Court confirming non-compliance of the stay order.
9. That the contents of para 9 of the reply are totally false. The Counsel cannot be expected to give an undertaking without instructions. He was acting for and under the instructions of the client and it is binding on the client as the power has been given in the Vakalatnama. But the undertaking is binding on the client. This is a ‘U’ turn taken as always.
10. That the contents of para 9 of the reply are denied being false. The compliance was to be made of the order of this Hon’ble Court dated 17/10/2012 in order to avail the stay order and that was to deposit the amount due to writ petitioners from the date of retirement and in this case the Board Resolution has nothing to do. This is again a mis-statement on the part of the Petitioner and hence denied.
11. That the contents of para 10 of the reply are denied being wholly wrong. It is further submitted that the graded rates as were mentioned in Appendix IV of the Pension Rules were not the correct rate and as such the same be treated to have been read down. It is thus admitted by the Petitioner that while calculating the rate of Dearness Relief has not correctly been applied while calculating the arrears. This further shows that at no stage the Petitioner has admittedly made compliance of any judgment yet they are making false statements before this Hon’ble Court.
12. That the contents of para 11 of the application are reiterated.
13. That the contents of para 12 of the reply are denied. The amount as directed by this Hon’ble Court dated 17/10/2012 was not deposited as per the submissions made above and as such there was no stay on the proceedings in Contempt petition and the High Court ought to have proceeded to seek compliance of the judgment done.
A. That the contents of sub para (A) of the reply again makes it clear that inspite of the judgments the Petitioner is not ready to comply with the same and for this purpose they have coined a new concept other than the one as has been directed by this Hon’ble Court. This Hon’ble Court has directed for deposit of ELIGIBLE RETIRAL BENEFIT from the DATE OF RETIREMENT and not “with effect from the date of eligibility to get retiral benefits”. Furthermore, when the Petitioner (LIC) says that it had neutralized the D.A. formula as per the judgment then it had to deposit the difference of D.R. also into account, which admittedly it did not do. Even the compliance of the Board Resolution has not been made which says about neutralization of DR to 100% and then updation of pension with weightage of 11.25%.
B. That the contents of sub para (B) are denied as stated and those in the application are reiterated.
C) That the contents of sub para (C) of the reply are denied and what is mentioned in the application are reiterated.
D) That the contents of sub para (D) of the reply means undermining the authority of the Courts. Central or State Governments are amenable to the directions of the Courts and in case the contention of the Petitioner is accepted Articles 34 and 226 of the Constitution will eliminate.
15. That the contents of para 15 of the application are reiterated.
16. That the contents of para 16 of the application are reiterated. Even now the Petitioner has not submitted the statement showing the monthwise calculation of difference for ulterior reasons.
17. That the contents of paras 17 and 18 of the application have been admitted by the Petitioner since what they have not been able to show that on any date the contemners have appeared or filed their reply before the High Court.
18. That the contents of para 19 of the application be deemed to be admitted in absence of denial.
19. That the application under the circumstances deserves to be allowed and this Hon’ble Court may graciously be pleased to award the reliefs as prayed for.
DEPONENT
VERIFICATION
I, the above named deponent, do hereby verify that the contents of my aforesaid rejoinder affidavit are true and correct to my knowledge, no part thereof is false and nothing material has been concealed therefrom.
DEPONENT