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Thursday, April 14, 2016

POST-2

(Continued from Post-1)



This is certainly excessive delegation without any guideline to the Govt. If the intention of the Parliament is to make the ID Act not applicable to LIC, the correct course is to bring an amendment to the ID Act as that Act is a Special Act, which cannot be amended through the medium of a General Law like the LIC Act more so after 25 years when its ‘Speciality’ itself has vanished with the objects of nationalization fully achieved. It will be na├»ve to consider the LIC Act a Special Act, today, after 60 years with the exclusive privilege of doing life insurance business removed and private Life Insurers allowed to operate in competition. May be soon the LIC may have to be registered under the Companies Act, when the capital of the LIC is sold to private investors. It is needless to say the legislature cannot comprehend at the time of the passing of the legislation, as to how the Executive/Govt. will utilise the delegated powers. To quote from our own example, the notification dated 22-6-2000 giving effect to the revised DA formula is effective in two ways. One is that, it is effective or operative from 1-7-1997 (note the retrospective effect) and only in respect of those retired from that date and that means restrictive discrimination. Parliament could not have thought of such a notification and many more that may come. That means it is a blind and unguided delegation, without considering the consequences and possibility of abuse. It is not a hypothesis of misuse and effect of what we call excessive delegation. It is a delegation without parliament getting any opportunity to review such notification though there is provision for laying such notifications on the table of both Houses. As a careful reading of our contention will prove, parliamentary scrutiny, of the impugned notification, missed the intended control and the omission resulted in a Constitutional violation.

Similarly the provision 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 against the provisions of Art.21   taking    away the right to the rule of law.

The net result of the above proposition is that when even during the dark days of Emergency, the Fundamental Rights were only suspended, getting revived after the cessation of the declared emergency, in the case of the LIC employees, the Rule of Law is permanently abolished under the Sec.48 with the Govt. getting a permanent veto power against the LIC workmen! 

To sum up a) there is discrimination, violating Art.14, as between two similarly placed persons with grouping them, with reference to their retirement date, resulting in breach of the principle of equal protection of all laws b) breach of Art.21, abridging the rule of law c) Art.16 equality of opportunity in employment matters d) violation in the legally recognized principle on retrospective application of law e) delegation of powers without any guidelines for making subordinate legislation resulting in the breach of the Constitutional provisions under Art. 14, 16 & 21, f) such unguided delegation had in effect resulted in usurpation of the legislative power g) Parliament itself missing the point that a Special law cannot be amended otherwise than by an amendment to that Special Act. 

We now come to another important point of law which appears to be the prompting for the Govt. drafting the Appeal by copying the phraseology from certain SC decisions to justify the Sec.48 notifications used in the arguments of the LIC/Govt. This shows the seriousness of the LIC/Govt. to defend their assumed rights under the Section but seem to hesitate to argue on the section. There is an attempt to show that the rules notified have the sanctity of Parliamentary authority under Sec.48 as Section 48 (1) would show. But when that authority is utilized in making Rules that result in the violation of the Fundamental Rights with the Parliament not noticing such violation, it becomes an abuse of the delegated powers because no guide line is prescribed, and the Govt. assuming the position whatever it does is right. This is against the well accepted principles of law that when some action is against the law and that cannot be allowed, it cannot be allowed through any shift or contrivance. It means when you are not allowed entry through the main door to the temple of justice, you also cannot be allowed entry through the back door. 

In effect, the sheen of the Rules made under Sec.48 with regard to the power of determining the terms and conditions of service of the employees of LIC, is lost with the termites of Constitutional violations eating its veneer itself, leaving the timber hollow. 

We shall examine the powers of the LIC under Sec.21 & 23 in another article. The above is a theoretical examination that may be added or altered with better thought from my brother pensioners.