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Monday, March 28, 2016

VS PRAKASARAO



On the eve of the S.C. proceedings due on the 30th March, I would like to draw the attention of our pensioner friends to the very very valuable and relevant statement of the chair person of the NHRC Justice K.G.Balakrishnan in the booklet ”RETIRAL BENEFITS AS HUMAN
RIGHTS –NHRC INITIATIVES” published in Dec.2014. JUSTICE K.G. BALAKRISHNAN in his foreword observed ” RETIREMENT BENEFITS ARE THE ACCUMULATED SAVINGS OF LIFETIME OF SERVICE. DENIAL, NON-PAYMENT OR DELAYED PAYMENT OF THE SAME IS NOT ONLY TANTAMOUNT TO DENIAL OF AN INDIVIDUAL’S RIGHT TO PROPERTY, BUT IS ALSO A VIOLATION OF THE HUMAN RIGHTS OF THE VICTIM AND THEIR NEXT OF KIN WHEREIN THEIR LIVELIHOOD IS AFFECTED, OFTEN TIMES RESULTING IN UNTOLD MISERY, STARVATION AND POVERTY.”

The PROLOGUE to the booklet observed that the retirement benefits are paid as per Rules. Citing the Supreme Court of India in D.S. Nakara & Others Vs Union of India reproduced the observations of the Court on Right to Pension –“ no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in DEOKI NANADAN PRASAD vs State of Bihar & ORS. where in THIS COURT AUTHORITATIVELY RULED THAT PENSION IS A RIGHT AND THE PAYMENT OF IT DOES NOT DEPEND UPON THE DISCRETION OF THE GOVERNMENT BUT IS GOVERNED BY RULES AND A GOVERNMENT SERVANT COMING WITHIN THOSE RULES IS ENTITLED TO CLAIM PENSION”.

“Pension is the deferred portion of compensation for long and devoted services rendered by an employee with the employer. It is a social welfare measure as well. Article 21 of the Constitution of India guarantees everyone a fundamental right to livelihood, which includes entitlement to receive his deferred wages in accordance with RULES, after retirement. Non- payment of retiral benefits therefore is a violation of one’s fundamental right under Article 21.The right to receive the same is not only a fundamental right but is also a right to property under Article 300-A of Constitution of India which cannot be taken away except by Authority of Law.”

In the concluding remarks the NHRC observed” Right to receive retiral benefits , as per entitlement has evolved into one of the most important human rights .The pioneering role of the Supreme Court of India and institutions like the NHRC has given impetus to this right. However the role of the Executive for proper implementation of the social security legislations ensuring timely payments to the concerned beneficiary is of importance. NHRC India plays the role of a facilitator which ensures that when a victim of violation of rights to retiral benefits approaches the Commission, his matter is enquired into by the concerned State functionary and adequate relief is provided to the victim.

The Commission expects that the Executive in India will understand their important role in strengthening the social security regime in the country and take all necessary steps to promote and protect the rights of the entitled persons to receive the retiral benefits. NHRC has a strong belief that when all the stakeholders contribute to this resolve, a happy and developed India will not be a distant dream.”

Accordingly the executive has to assume responsibility to implement the pension rules.Our pension rules are mandatory . But L.I.C is reluctant to implement the pension rules .

RULE 56 OF L.I.C PENSION RULES: “ Matters relating to pension and other benefits in respect of which no express provision has been made in these rules shall be governed by the corresponding provisions contained in the Central Civil Services (pension)rules 1972 or the Central Civil (commutation of pension) rules 1981 applicable to Central Government Employees.”

RULE 56 OF NATIONALISED BANKS PENSION RULES 1995: “In case of doubt in the matter of application of these regulations regard may be had to the corresponding provisions of Central Civil Services rules 1972 or Central Civil Services (commutation of pension) rules 1981 applicable to Central Govt. Employees with such exceptions and modifications as the Bank with the previous sanction of the Central Govt. may from time to time determine.”

So the Banks have to obtain the permission of the G.O.I to apply the benefits as available to the central Govt. Employees . L.I.C Rule 56 did not provide for the prior approval of the G.O.I to extend the benefits availed by the Govt. Employees. Further the G.O GSR-553(E) DT.22-6-2000 empowered the corporation to amend the rules relating to Minimum Pension rule 36 ,Dearness Relief , and family pension. L.I.C issued a circular Personnel/ER/A Circular No.ZD/1206/ASP/2012 DT.11TH July 2012 RE: Family Pension when the Employee is found missing. This circular invoked Rule 56 of the Pension Rules for which no G.O was obtained. So L.I.C can as well issue instructions to provide the benefit of updation to the pensioners . Similarly D/R rules be amended by L.I.C itself in view of the G.O DT.22-6-2000.Presuming for a moment that L.I.C need approval of the G.O.I Rule 55A – POWER TO RELAX make the Govt. duty bound to give the approval sought by the Board Resolution. This rule is a positive rule so the Govt. can not use this to negate the benefits to the pensioners.

Can the Govt. create Rules u/s 48 which violate the Constitution . There were many instances when the L.I.C showered benefits on the employees without Notification by the Govt. Absorption of temporary employees was done without any notification. L.I.C AND G.O.I ARE PLAYING MISCHIEF WITH OUR STATUTORY PENSION RULES. We must high light this foul game being played by the LIC/ GOI combine to deprive the pensioners of their rights recognized by the constitution and the NHRC. In the process the precious time of the Supreme Court is wasted by this vexatious litigation perpetrated by the L.IC. The G.O.I can not arrogate itself to create Rules U/S 48, and remain adamant to set right the matters when the rule implementing authority sought to rectify the matters. The G.O.I should abide by the rule 55A, lest it amounts to abdication of its authority , and implies tacit approval.

Now L.I.C took a stand that post Aug.97 pensioners are not in the purview of the Resolution .Hence the interim relief was not paid to them .These petitioners at Raj H.C led by Sri Asthana should have raised their protest and objection .Why they were silent .If we keep quiet now it amounts to acceding the point to the L.I.C. This will damage the interests of post Aug.97 retirees and deprive them of updation benefit. This group contributed liberally to the legal fund with the fond hope of getting the benefit of updation . So special attention should be paid to this issue and these retirees should be assured that sincere efforts will be made to control the damage. Otherwise these retirees will be demoralized .

Another important matter is L.I.C brought on record the affidavit dt.4-5-2011 filed on behalf of the GOI in the W.P 34580 of 2007 Allahabad H.C. which stated that the Banking Division of the MOF advised against the approval to be given to L.I.C Resolution. Hence approval was not given to the Board Resolution. But in April 2006 when S.B.I employees struck work for 7 days the then finance minister decided to increase the pension in S.B.I.What was the reaction of the banking division then. How can banking division decide on L.I.C matters. We should protest and this should not be allowed to be on the records of Supreme Court.The Finance ministry can not cite the ripple effect to deprive the retirees of L.I.C.If this ripple effect is accepted the GOVT. can as well deprive the benefits of OROP, updation to Central and State Govt. retirees and those in railways, ports , parliament etc.

Further Supreme Court should be appraised of the Pension Rules so that the Apex Court directs the L.I.C to implement the Rules acting upon the G.O 353 dt. 22-6-2000 and also the Rule 56 on Residuary provisions which does not envisage the any clearance from the Govt.so that updation of pension for all retirees is ensured to protect our fundamental rights ,property rights and human rights.

With regards


VS PRAKASARAO,
 Visakhapatnam.