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Friday, April 22, 2016

AS RAMANATHAN

PART III





In the last two presentations, we have seen the cause for our grievance, giving us the right to move the Courts. Now let me argue from the LIC/Govt. point of view against our claim for the benefits. Since the whole case rests on discrimination only, I hope the LIC/Govt. (now both are the same as the counsel for the LIC can easily argue both ways without any contradiction) will heavily depend on the power of Sec.48, which many times, I have referred to as the harping on the same strings. In the law relating to defamation, the best defence for a person called upon to answer, is affirming the statement. If proved the defamation case will be dismissed, if not he fails to face the consequences. It is in this situation the LIC is placed today.


They have only on point to try their luck before the Bench, and Sec.48 is what it is. It has the force of law, the power having been given by a Special Law, the LIC Act. While passing the Bill, there was clause by clause scrutiny of the Bill by the members of the Parliament, criticism by the members and reply from the Govt. for the need of the clauses in the Bill and the Bill would have been passed. The passed bill has received the assent of the President and sanctified with his signature to make it an Act. That has given the Act the respectability to be governed in all matters relating to life insurance. During the course of years of administration, the Govt. has found the need to amend the LIC Act, for better administration and control and consequently incorporated into the Act, new regulation through amendments of the LIC Act. Certain provisions were to be effective from 1979 & 1981. Parliament passed the amendments the Govt. wanted and they were incorporated as Sec.48 2 (A, B & C) and 2 (cc), thereby authorizing the Govt. to make Rules under the Section. All the process for enactment have been complied with and therefore, the Rules by virtue of the powers delegated is valid and enforceable. It is to be emphasized that such rules cannot be called into question by the provision incorporated in the section. The action of the Govt. in issuing the Pension Rules cannot be assailed either. It is under such rules issued by the Govt., the retired, are getting their pension, to be also called pensioners! You cannot eat the cake and have it too, either eat i.e accept it or don’t eat i.e don’t complain.


Thus the government is exercising its mandate and the Govt. is doing its duty of carrying out the provisions, in this case the pensioners are the beneficiaries. If the LIC extends the benefit to those to whom it is not prescribed to be paid, it will be illegal, as it is against the Rules made under Sec.48. The Govt. is not under any obligation, especially now that the SC has stated “In the absence of a rule, in our considered opinion, no benefit can be granted on the basis of the resolution passed by the Corporation”. To issue or not to issue a Rule is an Executive prerogative. Under the circumstances, the petitioners have no legal claim to be decided by the HC.


How to meet the challenge is our concern and in the process to find out if something was wanting in our arguments or the methodology of presentation. With due respect to our friends, they seem to have presented the case lightly . However, I had a feeling that there was some hesitation 
to stoutly argue first hand on the point of discrimination and violation of the Constitution, in spite of the fact that the Nakaras case was a discussion on the constitutional principles and the case was therefore dealt with a Constitutional Bench. If not, there was no need to refer that case to the Constitution Bench, but a two Member Bench could have decided that case. Neither was it seen to have been mentioned to the SC, that our case is in pari passu the same as the Nakaras case, which would have made the judges to think otherwise. Briefing is an art by itself and briefing a Senior counsel is a difficult task to be experienced. Be, that as it is, I am in no way competent to comment on anyone and foremost Senior Counsels we have engaged.

I am making a reference to the point that this time we should hit the nail on the head, let us start from discrimination to show how it has hidden the established principles of law to the extent of extinction. That will raise the serious discussion on the cause, nature and unconstitutionality of the whole matter. To argue breach of Fundamental Rights is a task by itself, but will not be so in our case. We have the decision of the Constitutional Bench followed by a catena, which in Latin means a chain of cases decided, applying that decision, making our task easy. We have nothing other than the Sec.48 and the Rules made thereunder, to beat them back, which LIC is trying to do with us. We will use the rules, how justified our claims are, but how such rules are abused to the detriment of the majority of the pensioners and misused for a few. Seeking parity is a good claim in a case of discrimination and proving abuse and misuse will add further strength to our claim and is as easy as a pie.

Then we have to be specific for the relief sought. We may ask the court to declare that the Sec.48 2 (A,B,C) & 2 (cc) are sections loaded with unguided, wide powers resulting in the violation of Art.14, 16 & 21 and which invites the Courts intervention in the matter. The LIC and the Govt. are well aware of the law of precedence established by the Nakaras case, yet refuse to abide by that rule of law and the poor elderly are fighting an eighteen years battle, living on a measly pension, should have the sympathy of the Goddess of Justice to award a decree favouring them with interest considering the long period of the struggle. Needless to pray for award of cost also, as this is a simple case but for the refusal to hear the reasonable appeals from the pensioners, sleeping over a reasonable Resolution of a Board of this financial giant of the Country, declaring its motto as YOGAKSHEMAM VAHAMYAHAM, but not practicing it for the tired shoulder and limbs of its foster parents, the retired employees.

(Concluded)