|An Octopus phenomena|
The spectre of Sec 48 has returned to haunt many people in many ways. Mr.Mahadevan has gone the extra mile to explain the probable scenarios arising out of Sec.48 in the Apex Court and the probable outcome. Yet, Mr. M. S. Murty seems to be having his own reservations about it. My take on the entire issue is slightly different and I would seek the indulgence of our readers if I make a bit of detouring to elaborate my viewpoints.
What is the complexion or true color of Sec.48? LIC, as we all know, is not an autonomous body. GOI is a major stakeholder in LIC and the representative they have installed in the Board is the person who calls the shots. LIC is permitted to take its own decisions only in very limited matters; sometimes with the approval of the Board and at times independently. There is no clear cut demarcation as to which are the issues where there is a Board Resolution which need to go to the Government and the ones where, without referring to the Govt. LIC can implement the Board Resolution. This area has been deliberately left hazy and unclear because, as otherwise GOI fears it will lose its grip over LIC. Generally speaking, only such matters where ‘public interest’ is involved and the financial burden adversely will affect them, it needs to be referred to the GOI. The DR parity and upgradation of pension do not fall in that category and logically LIC itself can go ahead with the implementation of the Resolution as it involves no financial outlay to GOI and the LIC Pension Funds can take care of it. Unfortunately, over a period of time LIC has always preferred to look up to the Government for anything, and even where it could have used its authority to take a decision. It is in this context, Sec.48 has become so important, and that is perhaps the reason why Justice.Bhandari found a way around Sec.48 to deliver his verdict. If Sec.48 is struck down, don’t you think it would mean handing over autonomous powers to LIC to take independent decisions in every matter where a financial outgo is anticipated. Therefore, let us not expect GOI/LIC to allow this to happen: they will try every trick in their bag to protect it.
Mr.Murty’s fear is that until such time the ‘draconian’ provision is withdrawn or eliminated the danger of its presence and validity remains. First of all, until such time Govt. has disapproved the Board Resolution, we can’t call it draconian. Govt. has not done it so far. Of course, we have to take pre-emptive steps, lest it might be used against us any time in the future. But then, we have Mr.Ramanathan’s assurance , according to which the Parliament can’t put an Act in place which conflicts and runs counter to the Constitutional provisions. If that be the case, as long as articles 14 and 16 are there, should we fear the Spectre of Sec. 48.?
Let us now run through the meandering path traversed by our court cases so far. Both the writ petitions , one for parity in DR and the other for upgradation of pension, were admitted by the Jaipur H.C. Justice Bhandari delivered his judgment conceding both. It was based entirely on our Board Resolution though he has drawn inspiration from similar supporting cases like DS Nakara and others. LIC went in appeal and both the Division Bench and the Bench which heard the Review petition upheld Shri.Bhandari's verdict. And again, when LIC dragged us to the Supreme court LICs SLPs were dismissed and the Single Bench verdict of the Jaipur H.C was not stayed. All these happened because they found merit in the arguments of the Single Bench and didn’t assign any significance to the restrictive Sec.48. This may sound a little far-fetched and unrealistic inference but is the truth.
DS Nakara judgment, OROP , periodical upgradation of pension for the Central Govt. Employees all can only help supplement our arguments and in no way directly help us win our case. If DS Nakara judgment is taken as the benchmark by all the judges, the decision making process can become utterly simplistic for them. That our Pension Rules were framed after C.G Employees Pension Rules also can be quoted as comparable instances and not something which will clinch the issue for us. While the Board Resolution has to be approved by the Govt.,the pension rules amended suitably and gazetted, when it comes to implementation of provisions of Pay Commission, only administrative instructions are issued. The bottom line is our issues stand on a unique footing and we have to deal with it as deemed fit from time to time.” Horses for courses” should be the motto and not try to run the same horses in all the tracks!
So, Mr. Murty, let us not fear the monster Sec 48. I don’t think you need to drag someone into the loop for legal assistance. You are the doer, and as it happens to all doers, difficulties are to be faced by the doers only and not the Observers. No one has any doubt looking at the role you have played so far, even relegating your personal matters to the background for the sake of our court cases, you have the capability to steer the case to its logical end. What is needed is to have a deeper look into certain hidden grey areas in the Board Resolution and Justice Bhandari’s judgment and evolve a clear- cut strategy to tackle them. Success will be yours; success will be that of the 45000 pensioners all over the country. Good Luck.