Monday, November 09, 2015

M. Sreenivasa Murty

The Scene now shifts to 24 November 2015 (means at least slightly improved chances for continuous hearing)

The Jaipur Judgement – its significance & benefits, the Achilles heel                       Finally, the balancing act needed to achieve victory…..

This part is by far the toughest and most critical, to understand and steer our cases forward and put our fortunes to test, before the Apex Court. Here arises the need for the ‘concerned’ clients and the Counsel to allow themselves to be intensely quizzed, exposed to the strong points of the opposite party, subject each and every point believed to be in our favour to rigid legal scrutiny, visualize the arguments of others that we may be confronted with and grill our own counsel, on how he intends to overcome the same, should the need arise. Last and the most important - shun over-confidence.

Instead of continuing with the rhetoric, let me go straight to the point:

We are before the Supreme Court today asking for revision of our pension because of the Jaipur Judgement dated 12.01.2010. Conversely, LIC is before the Supreme Court today denying revision of our pension in spite of the Jaipur Judgement dated 12.01.2010 and in spite of the other two judgements that followed on 09.11.2012 at Chandigarh and on 30.01.2013 at Delhi. The latter two Judgements are the outcome of the two respective separate Writ Petitions having been allowed by the High Courts, concurring with the Jaipur Judgement. There are thus separate Civil Appeals filed by LIC against each of the three Judgements. The Counsel concerned, while opposing the respective Appeal is expected to protect the benefit his clients had secured earlier and make it ‘final & binding’ by getting LIC’s CA rejected.

The above analysis may be an over simplification of the high stakes we are facing. When the Court clubbed the matters together for common Hearing, there is an underlying judicial assumption that the issues in the original WPs, decisions and the Orders delivered by ALL the Judgements are similar if not the same. We have not (not even the Delhi Petitioners) disputed such an assumption nor are we going to do so. If the issues in all the Appeals are assumed to be common, we have no problem and we welcome a common final Order rejecting all the Appeals.

In reality however, the Delhi Writ Petition and the prayer therein was for 100% DR neutralization for the pre-Aug 97 retiree Class 1 Officer-members of the Petitioner-Federation, only. The Chandigarh WP and the prayer therein were for the Pension up-gradation of the 31 Petitioners. The Jaipur (common) Judgement naturally applies to the Petitioners named in both the WPs that were allowed by a common Order.

Click below to continue reading.

At this stage, it is necessary to generally understand and properly interpret an Order and a Judgement in a Writ Petition. Many of our Pensioners think that what has been ordered by the three High Courts is ‘Pension up-gradation’ straight away, as applicable to Central Government Pensioners.  This was no doubt the prayer in Chandigarh WP and in one of the two WPS in Jaipur viz., 654/2007 (allowed under the common Order dated 12.01.2010). Irrespective of the glaring variance in the prayers in each of the Four WPs, the Delhi & the Chandigarh WPs were “Allowed in terms of the Rajasthan Order. The Supreme Court is not going to look in to a ‘comparative chart’ of which WP prayed for what relief and what benefit is allowed or not allowed under which WP etc.,

I now rush to explain our core problem area. When a WP is allowed by a HC, the benefit/s granted may or may not be ALL that was prayed in the Petition and pleaded during the arguments. Theoretically a Court can (has the power to) grant certain additional relief/benefit over and above what is prayed for in a Petition also. (Specific relief sought in every Petition is followed by an omnibus concluding part: Something like ‘Any other relief that the honourable court may be pleased to grant in the interests of justice’). 
Normally however the actual benefit granted is what is expressly mentioned in the operative part of the Judgement. One cannot take a position: ‘My WP is allowed, this is what I prayed for and so what is granted while allowing the WP is all that I prayed for’. Where the Judgement & Order expressly mention the relief granted while allowing the Writ Petition, the Respondent is bound to comply with the specific part of the Order (unless set aside by a larger Bench or a higher Court on an Appeal). In our case, the Jaipur Judgement directed LIC to take steps to implement the Board Resolution and added that the Government approval was not necessary for doing so. In other words, the relief/benefit granted while allowing the WPs (two in Rajasthan and the other two by specific reference to the same) is that LIC should implement the Board Resolution without waiting for the Government approval. To infer/assume anything more than what is ordered in the operative portion, is not sustainable in the eye of law. Let me remind the Pensioner friends that common logic & fair assumptions do not go hand in hand with strict (cold) interpretation of the legal implications of Court Orders. 
If the three Judgements are upheld and the CAs are dismissed without any other comprehensive categorical directions by the Apex Court, like up-gradation of Pension with each wage revision effective from such and such date, what we get is implementation of the Board Resolution, exactly as LIC has interpreted it for the purpose of payment of 20%. Can we afford it?

Thus the most tenuous point in our case and naturally heavily relied on by LIC is the Order under Appeal that Board Resolution should be implemented without Government approval. When the validity of Section 48 (2) of LIC Act as amended, is not under any fresh challenge in the current proceedings, one cannot wish it away as ‘not applicable’. I am sure that total reliance on the Jaipur Order merely to implement the Resolution, would lead us nowhere. Firstly it is very unlikely and secondly, even if it happens, ‘operation is successful but the patient had died’. 
As far as I understand, the Rajasthan Petitioners intend to press for upholding the Judgement dated 12.01.2010. In support of the same, they are relying heavily on a few facts viz., i) Three High Courts said so, ii) There are precedents where Chairman LIC gave administrative instructions involving amendment of service conditions of employees, iii) Union of India’s failure to approve or reject the Board recommendation amounts to its tacit approval and iv) UoI’s Counsel himself conceded before the Division Bench that LIC is free to act on its Resolution.

The brief arguments, albeit informal, on 30 Sept 2015, provided a stage for a sort of ‘dress rehearsal’ for the final performance by the Jaipur actors. Everybody present got a ‘feel’ of the mind of the Bench on the issues listed at ii) to iv) above. The wind on each of those arguments was against the Sr. Counsel. He did however generally indicate to the Judge, to the effect that while he was banking on those points to support his case, he would also put forth his plea under the Constitutional provisions also. Better he does it for sure and still better, his client lets him do so. In this sensitive scenario, the Counsel appearing for the Chandigarh Petitioners is sufficiently briefed and fully prepared. To supplement the arguments of Jaipur Sr Counsel/s on the line taken by them where there is no disagreement and more than that, to fill the gaps if any (I love to describe them as ‘gaping holes’), not to take chances and risk the interests of a large trusting community of LIC Pensioners.

I have a strong (may appear ‘strange’ to some) view (backed by Sri C H Mahadevan also) in respect of the two new belated SLPs filed by Union of India and posted for hearing (against the Jaipur Judgement only and so Chandigarh & Delhi have no locus to appear in them). They are being opposed by the Jaipur Petitioners on various grounds – merits as well as the unreasonable delay. My view is that without prejudice to the rights of the Respondents to oppose them on merits, we may stand to gain if the Court admits the SLPs and hears them also as regular Appeals and eventually dismiss them on merits, instead of rejecting them t the threshold on the technical ground of laches. If I am permitted to explain, UoI filed the SLPs (even with a five year delay) to overcome the adverse finding by the HC Division Bench at Jaipur that the Government chose not to appeal against the HC Orders involving its statutory functions under Sec 21 & 48 of LIC Act. If only UoI’s SLPs are admitted and when it is directly an Appellant before the Bench, it would be possible for us to press for and the Court to issue directions directly to the Government to set right the violation of Constitutional provisions, amend the Pension Rules as per Law in order to revise the Pension which is admittedly (allegedly) beyond the powers of LIC.

We will of course work for such an outcome, in any case, in consultation with our Counsel.  
On the all-important question of ensuring that the final relief has to flow to ALL the Forty Thousand Pensioners & ALL Family Pensioners, we do have an action plan in mind, to be pursued seriously.  It is a bit premature to open up on that contingency plan
It is learnt that the AIRIEF which had a gala EC Meeting at Bhopal on 1 & 2 Nov (sans the benefit & presence of the architect of the Jaipur Judgement) developed cold feet on its own impleadment proposal and may silently reverse its earlier decision announced publicly. How the Federation ensures the applicability of the final favorable Judgement of the Supreme Court to all its members and hundreds of other contributors to its coffers, has to be seen, as the 20% IR was received only by the main Petitioner and some 20 others.

A small quiz to the well informed readers of LIC PC:

Wish to know why according to you, the Solicitor General of India is retained by LIC and NOT by the Union of India (to fight poor LIC Pensioners)?

I will share my guess after 24 Nov 2015.