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Thursday, April 14, 2016

POST-1

Let us assume that we have to argue on our cause of action, 

discrimination. We should know the areas affected by this. 

To summarize, it may relate to 
1) equality before law 
2) equal protection of all laws 
3) protection from exploitation and unreasonable actions 
4) Legislative lapses leading to executive excesses, and 
5) abuse or misuse of the rule of law.

Equality before law is not treating two similarly placed persons alike, equal protection of law is not giving benefits to one group as against another without any valid reasons. Protection from exploitation is deprival of legal rights under the Constitution, Legislative lapses give chances of usurpation of the legislative privileges by some other arm of the Govt. and abuse or misuse amounts to use of power delegated by a person who is not entitled to the use of such power or not using such powers in the manner it is expected to be used.

In our case in the course of our efforts to prove discrimination, various obstacles are placed by our opponents. The foremost is denial of discrimination. We need no longer tire to prove this because of the similarities of our case with that of Nakaras case accepted by the SC. This point alone is sufficient to prove our case. But other arguments to thwart this contention may be advanced. One such plea will be of the classification of the pensioners. This attempt was also defeated in the Nakaras case and may not call for any efforts to prove. There is another face of Art.14, which calls for equal protection of all laws. This means that to be permissible such grouping has to have some nexus with the object of the legislation and the SC have at length discussed this point and rejected the theory in the Nakaras case and need no elaboration. The other most important point is that all rules and legislations have to be reasonable and not result in exploitation as per Art.21. The very fact of established discrimination as stated, is against Art.21. 

Now let us for a while look at the case from the point of LIC/Govt. Their aim is to deny our claim and to establish their hold onto Sec.48 as an omnipotent weapon against pensioners as well as employees in general. (If anyone thinks anything more on this, welcome to add to the point). They would like to throw anything at us to continue the denial. We have no choice than to defend from such machinations.

“If winter comes, can Spring be far away”. There is some hesitation to agree with my views on the strength of Sec.48 and the challenge to it. In the face of the apparent stubborn attitude to depend on the force of that section, should we wind up our defence. I quote the SC order of 31-3-2016:” On a perusal of Section 48, it is clear as crystal that conferment of benefit, either pension or anything ancillary thereto has to be conferred by the rules and the rule as prescribed under Section 48 of the Act is to be tabled before the Parliament. 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”. 

How can we get over this observation without arguing on the validity or otherwise of Section 48. In my opinion there need not be any kneejerk reaction. That needs a detailed examination on the finer aspects of the law, which has not taken place and may not be difficult to persuade the HC. I therefore venture to put forth my opinion in plain language, trying to avoid legal jargons for the purpose of general understanding.

There is no doubt, only Parliament can legislate. Parliament cannot delegate that power to any other limb of the Government. Ex facie, therefore such an enactment done by an amendment to LIC Act may appear to be valid as it did to the SC to make the statement reproduced above. We have to remember that under Art.13 of the Constitution, any law that is in conflict with the constitutional provisions will be invalid to the extent of such conflict. If so, is there any conflict in the Sub sections to Sec.48 relating to powers of the Govt. to make rules regarding the conditions of service of the employees. The Sec.48 also empowers the Govt. to make rules by virtue of the provisions under the Section. The Pension Rules were framed under such powers. Such notifications needs to be placed on the table of both houses of the Parliament to enable the Hon. MP’s to ensure such delegated powers, which have the force of law, are properly framed. Such rules framed by the Govt. are called subordinate legislation and the Parliamentary committee on subordinate legislation, have occasion to adversely comment on such rules framed by the Govt., which many times escape scrutiny of the Parliament, our Sec.48 notification appears to be no exception! As decided in the Nakaras case, grouping pensioners on the basis of their retirement date is against Art.14 of the Constitution and therefore void being in conflict with Art.13 also. For this reason our Pension Rules on that point is void. But on 31-3-2016, Nakaras case seems to have been not argued in the court, to bring it to the notice of the SC, the conflict of our pension rules with Art.13 of the Constitution. Now that void section is preventing judicial review. Perhaps the SC, ipsi dixit, felt it is properly drafted. 

Sec.48 (2-B) gives teeth to the power of addition, variation or repeal, the regulations and other provisions with retrospective effect.


Sec.48 (2-C) protects 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 and further validates and protects it from being held invalid by including the non obstante clause 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”

That being so, we have to show (1) that there is no need for any fresh notification or (2) that despite the provisions, the discrimination established is enforceable and (3) in spite of the sweeping powers postulating that 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 and further 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” is unfair and void.
          
The Constitution being the Supreme Law, any violation of it is void to the extent of the violation (Art.13). In our case, constitutional violation has been proved, in view of the principles established in Nakaras case. Therefore saving the Rule made under 48(2-C) by use of the non obstante clause is void, because hiding under the rule the Govt. has tried to make discrimination valid. The impugned Rule dated 22-6-2000 by which the DA increase etc. was extended to those who retired after 1-8-1997, was repugnant to equality provisions of Art.14 in the attempt to make it applicable & from 1-8-1997.

Any dispute that arises with regard to service conditions are covered by the Industrial Disputes Act, which is a Special Act. LIC Act is also a Special Act but for the purpose of nationalisation of life insurance business only. A non obstante provision as in Sec.48 (2-C), cannot bar applicability of other Special Legislations. The prescription as to applicability of a legislation is the prerogative of the Legislature and a legislative function, cannot be delegated. As per the non obstante clause used in Sec.48 (2)(cc)&(2-C), the provisions of the Industrial Disputes Act and all other Acts are not applicable because of the saving provision. Similarly any judgment, decree or order of any court, tribunal or other authority or any other law or any agreement, settlement, award or other instrument for the time being in force” will not be applicable in so far as the provisions made under the said section.

(To be continued)