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Saturday, February 06, 2016

AS Ramanathan



Arising out of the remarks, two main points comes out. One is the discriminative point and the other is the Board Resolution for removal of gross anomalies. Even the latest wage revision has given rise to the same type of anomalies that have arisen with every earlier wage revisions. The Board Resolution is an acknowledgement of this fact, and hence the recommendation to the Govt to put an end to this gross discrimination. Both the points are crucial for our demand for parity in the rate, manner and method of the D.R neutralization and revision to remove the absurdity of a retired Senior Officer getting a very low pension than a retiree lower down in the grade structure.

For the first point for parity in the rate, manner and method of neutralization I again repeat my argument, there is no necessity for another notification, for two reasons. Forget for some time the Sec.48 notification. At the time of notification on the revised pattern for payment of DA to those who retired from 1-8-97, the Govt was well aware of the decision of the SC delivered in 1983 itself in the now leading case of Nakara. It was a decision against a G.O issued by the Govt. and that is a law of precedence. The Jaipur HC correctly applied that ruling while deciding our case. This decision was that of a Constitution Bench and the Bench hearing our case will find hard to ignore it. Since the point of contention is violation of the Fundamental Rights under the Constitution, there cannot be a different opinion from saner legal pundits. The Jaipur HC has not struck down the impugned notification but only held that the benefits of the notification are equally applicable to all retirees as a single class. All these arguments are based decided SC cases.

On the basis and strength of the Board Resolution, nobody seems to have any idea. While the Govt’s thinking seems to be that of the Shakespearean era of the Divine Right Theory, the LIC’s thinking is to go by his Masters Voice, making one to wonder whether LIC is autonomous or only a department of the Govt. (and even then revision is a precedence). Even some of our own retired friends seems to be bewildered by the presumed iron curtain of Sec.48 and fail to see the inherent power of the LIC as an autonomous institution. In fact Sec.48 is no impediment and the Govt. cannot use that section to deny any legal right protected by the Fundamental Rights of equality of law and equal protection of laws. Under microscopic examination, it will be seen as violating the basic structure of the Constitution. Hidden in the LIC Act is the power of the LIC to determine the terms and Conditions of service of its employees !. The truth is none of us have any need to examine Sec.48 or consider its weakness. But now the Govt says it is omnipotent and do whatever it wants to do with it, even against the provisions of the Constitution!!.  If we are to examine it in the lime light of the Constitutional provisions, it will become clear that the Govt. has no such powers as it is made out to be. This approach is to add support to our argument that there is no alternate solution to the perpetual problem of discrimination arising with each revision of the salary structure. With the Resolution of the LIC board to support our claim, proving legally LIC has powers to decide on the term and conditions of service of its employees is the stress here.

The final para of the judgement in Nakaras case itself supports this argument and of course there are many other case laws also.  

To conclude as far as DR anomaly, there is no need for any notification as a decision based on a judgement of a Constitution Bench needs no approval from the Govt and is enforceable at the pain of contempt of court. Further factually the impugned notification still survives, with the benevolent reading given by the SB of the Rajasthan HC, obviating the need for further notification.

As for the revision, it is essential to revise pension also along with the revision of salary structure, if discrimination is not to be perpetuated. The LIC has inherent powers to do this but the Chairman lacks the courage to exercise it. The Govt’s claim, only it has the powers, is hollow, and the assumed powers under Sec.48 is against the provisions of the Constitution. Nowhere in the LIC Act is a provision, to show that it is the sole privilege of the Govt. The SC by the exclusive powers of interpretation of law may enforce its writs. Finally to quote Justice V.R.Krishna Iyer “It is elementary that a non obstante tail should not wag a statutory dog….” The tail refers to a rule made by the Govt. against a statutory provision and the import is that when the head is there, the tail should not wag.   

A.S. RAMANATHAN