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Sunday, April 17, 2016

AS RAMANATHAN



Since Shri Ramanathan has prepared the write up (concluding part)
 using different post colours and fonts, we have retained the special look. 
To read, please CLICK BELOW



            For a better appreciation of the points, I have copied below the Sec.48 as quoted in the SC Judgement dated 31-3-2016 in our pension case (script in red colour).

EXTRACTS FROM THE SC JUDGEMENT Dt.31-3-2016 by Hon. Justices D.S.Misra & R.Bhanumathy

“48. Power to make rules. -  (1) The Central Government may, by notification in the Official Gazette make rules to carry out the purposes of this Act.

 (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

 (a)the term of office and the conditions of service of members; (aa) the instruments which may be issued and the amount of working capital under sub-section (2) of section 5;

 (b) the manner in which the moneys and other assets belonging to any such fund as is referred to in Section 8 shall be apportioned between the trustees of the fund and the Corporation;

 (c)the services which the chief agent should have rendered for the purpose of the proviso to section  (cc) the terms and conditions of service of the employees of the Corporation, including those who became employees of the Corporation on the appointed day under this Act;

 (d) the jurisdiction of the Tribunals constituted under section 17;

 (e) the manner in which, and the persons to whom, any compensation under this Act may be paid;

 (f) the time within which any matter which may be referred to a Tribunal for decision under this Act may be so referred;

 (g) the manner in which and the conditions subject to which investments may be made by the Corporation;

 (h) the manner in which an Employees and Agents Relations Committee may be constituted for each zonal office; 

 (i) the form in which the report giving an account of the activities of the Corporation shall be prepared;

(j) the conditions subject to which the Corporation may appoint employees;

(k) the fees payable under this Act and the manner in which they are to be collected;

 (l) any other matter which has to be or may be prescribed.

2 (A)(B)(C) xxx xxx xxx xxx

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”

I also quote some subsections of the Sec.48 extracted from the LIC Act, 1956 from elsewhere, for a comparison:

In Sec.48 only the following sub-sections are affecting the employees, viz:-  
Sec.48 (2)(cc) the terms and conditions of service of the employees and agents of the Corporation, including those who became employees and agents of the Corporation on the appointed day under this Act; (inserted by LIC (Amendment) Act w .e .f. 20-6-79)

Sec.48 (2) (j) the conditions subject to which the Corporation may appoint employees;

Sec.48(2-A) The regulations and other provisions as in force immediately before the commencement of the Life Insurance Corporation (Amendment) Act, 1981, with respect to the terms and conditions of service of employees and agents of the Corporation including those who became employee and agents of the Corporation on the appointed day under this Act, shall be deemed to be rules made under clause (cc) of sub-section (2) and shall, subject to the other provisions of this section, have effect accordingly.
(Inserted by LIC (Amendment) Act w. e. f 31-1-81)

Sec.48 (2-B) The power to make rules conferred by clause (cc) of sub-section (2) shall include-
(i) the power to give retrospective effect to such rules; and

(ii) the power to amend by way of addition, variation or repeal, the regulations and other provisions referred to in sub-section (2-A), with retrospective effect, from a date not earlier than the twentieth day of June, 1979.

Sec.48(2-C) The provisions of clause (cc) of sub-section (2) and sub-section (2-B) and any rules made under the said clause (cc) shall have effect, and any such rule made with retrospective effect from any date shall also be deemed to have  effect from that date, notwithstanding any judgment, decree or order of any court, tribunal or other authority and notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947) or any other law or any agreement, settlement, award or other instrument for the time being in force.

In Sec.49 only one sub-section is relates to the employees and that is :- Sec.49(2) (b) the method of recruitment of employees and agents of the Corporation(the words “and terms & conditions..................employees of agents” omitted by LIC (Amendment)Act 1981 w.e.f 31-1-81.

It is important to note some differences. In the Judgement, Sec.48 (2-A), (2-B) & (2-C) have not been extracted and but shown as xxx xxx xxx. We cannot say as to whether the Hon. Judges considered the import of them while deciding the importance to decide crucial points that may influence the judgement. My quote consists of the unextracted and marked xxx xxx xxx section, which in my opinion, is very important from our point of view and in deciding the Constitutional validity of the Sec.48.

Incidentally my copy of our printed Pension Rules, published by Southern Zonal Office, Madras and printed by Soundari Offset Printers (P) Ltd, shows some omissions. Appendix I relating to Clause (f) of rule 2 for it does not show the competent authority relating to Divisional Managers cadre. Please check if there is any amendment or it is an omission.

Now going back to Sec.48, let us see their relevance. Sec.48 (1) & (2) needs no comment because it is only indexing the section.

I propose to examine only Sec. 48 (2-A), (2-B) & (2-C) which are important for us. Although initially, I was surprised the judgement did not extract or detail reason for it,  finding a way to send back the Writ Appeals to the Delhi HC for rehearing, I could hear a whisper of the Hon. Judges to the pensioners ‘oh ye men why have you not asked for the kill but beating round the bush and to the HC’s why are you not seeing the writing on the wall and trying to make light of the matter”! Is not the Sec.48 important and decide on it.

It is also interesting that the time to finish and conclude the decision is also fixed and I am convinced at the alacrity of the SC, in saying indirectly, that is all the time required to decide the case instead of 18 long years so far taken. I feel it is also a call on the HC’s to conclusively decide a case that comes us for a decision, instead simply agreeing because the pleading is not the same in the three cases, which the SC thought needs correction. Moreover with the thought of the National Judicial Commission on the horizon, our case may be a reminder for a judicial reform initiated, of course costing us dearly. If the thinking at higher levels is to leave the SC to decide mainly Constitutional matters, the reference to Delhi HC need not lead us to dismay or confusion.

If the Sec. 48 2(A, B, C & (cc) ) are found void for the reason argued in my earlier posts, the surviving part of Sec.48 will only be  Sec.48 2 ( a, b, c, d, e, f, g, h, I, k & l) and 3, with the need for the sections having been fulfilled. The crucial Sections for our purposes left are only 48 2(A, B, C ) and 2 (cc) that remain to be thrashed as to their validity. Shorn of their inviolability, as discussed in my earlier posts, they being fettered and clutched by the claws of unconstitutionality offending Art.14, 16 & 21, these sections will lose their grip. That will leave Sec.48 2(j) alone. There is no complication because it has no saving provisions as in 2 (cc), leaving Sec.48 as an enabling provision only, besides what is available to the LIC by reason of the theory of implied authority discussed earlier.

Another area agitating the minds of the pensioners are the various Annexures that are added with every wage revision which are the result/effect of the discriminatory provision that are assailed in our writ petitions. If discrimination is proved (there need not be any doubt on that), then the result is that the rules framed have to be uniform to all the pensioners from various cadres and grades. For better appreciation of the Hon. Judges we can attach in a schedule format, the anomalies that have arisen in various cadres, highlighting on a pensioner getting a higher pension than one who retired earlier in the same cadre or in a much higher cadre. A reference can also be drawn to the Central Services Pension Rules on the basis of which and under Rule 55 of which our Chairman is permitted use in cases doubts. Also we may highlight Rule 55 (B) by which discrimination in treatment and methodology of calculating pensionary benefits as between two/three cadres. Though the SC has opined that the Chairman has to take sanction of the Govt. to act under Rule 55, it appears to be not a correct or argued or considered view of the Hon. Judges, for the simple reason the Chairman is taking/have to take many decision under the Pension Rules without any reference to the Govt. Let me also record here my humble view that the HC or the SC may not indulge in the finer aspects of calculation or of arriving at rules that are not anomalous, for the simple reason that it is not its job and the courts will confine themselves to settling the legal points alone.

There was a reference from our friend Shri C.H.Mahadevan, Can Mr Ramanathan list in a tabular form the legal provisions on the one side and the applicable areas in our pension rules on the other so that the case managers may use them while conferencing with the counsel who will argue our case in Delhi HC?”. 


While thanking him for the same, I refer him to my various submissions along with supporting SC citations, particularly my view captioned “A Compendium of our pension case” sent to him and other case Managers on 14-2-2016. That is a consolidation of my various proposals that I have been writing since 2010. 


Since I am also at Hyderabad, I am always available on my cell No.9676840504 and of course on my e-mail id, which he knows. 


I am ready to share any points as far as our pension case is considered, for the welfare of the pensioners without regard to any group or Association. 


That brings the discussions to an end. Certainly you may be able to read more of my views with the Editor finding space.
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A.S.RAMANATHAN.