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Saturday, April 16, 2016

PART 3


            

From my earlier submissions, we have seen the Sec.48 contains many provisions which are void and on proper presentation the HC will be persuaded to agree and hold so, resulting the notification applicable to all retirees as a single class, uniformly by reading down the rules, as done by the SC in the Nakara's case and also by SB of the Jaipur HC in our case itself. The Pension Rules are on the lines of the Central Civil Services Pension Rules, which the Chairman may follow in certain cases and such Rules are uniformly applicable to all C.G servants. The very fact our Pension Rules have been amended by including a subsection (B) to rule 55, to give better benefits to the Chairman & MD’s retiring after a certain date but denying it to earlier retiree Chairman and MD’s is proof itself that a Rule once it is incorporated into Pension Rules empowers the Chairman to act according to that. This is another example of the discrimination favouring to the top Executives of the LIC vis –a-vis the earlier retirees. The SC has decried this tendency of division by the retirement dates and the Delhi HC may easily be persuaded to again concur. That Rule also discriminates by allowing more benefits to the higher cadres than the lower cadres resulting in cadre discrimination. Is it legitimate, is the question. We now come to some other concepts. Another disquieting point is the observation of the SC in the 31-3-2016 judgement that the powers under Rule 55 can be exercised by the Chairman only with the sanction. Why should it be then included as Rule 55, which now has a sub Rule 55 (B). The Pension Rules are itself are products of the Rule making powers under Sec.48, which every rule made thereunder or is it necessary to issue a separate order in respect of every rule enumerated under the Pension Rules every time. We can only rue, if it is so and this point is also to be argued before the HC, as otherwise the LIC Chairman in future can pick up another rule to say he has to get clearance from the Govt. or simply refuse to act on the same plea!, helping the Executive to sit over it, which in the U.S Parliament practice is ‘pocketing’ a bill.

A question may arise, if not through the Sec.48 route, how can the benefits to be brought into the rule books. As stated earlier the amendments to Sec.48 were made in 1979 & 1981. Since 1956 how was the wage revisions given effect to in the absence of the rules as they exist today. That leads us to the question, is only the Govt. can determine the service conditions of the LIC employees or the LIC itself may make the rules. A closer examination of the LIC act will show that nowhere it is stated that the rules making powers are the exclusive privilege of the Govt. LIC Act says that it shall function to the extent possible on commercial principles. Now LIC Board, consisting of 15 Members headed by the Chairman, is made an ornamental appendage adding to the expense ratio of the LIC. I am reminded of the comments of our English professor explaining the satire in Oliver Goldsmiths essay ‘invitation to Dinner’.

To give life, limb and form to the LIC, the Govt. and Legislature are necessary to frame guidelines to follow in the initial stages but LIC need not be always lead like blind man, if the intended principle of running on commercial principles is to work. Even in the investments except in social sectors which the Govt. wants to prioritize there is no need to detailed instructions but left to the LIC to determine the quantum and extent of investment. Still Sec.21 has not proved very harmful despite the Mundra deal, still green in our memory and recently some directions on the disinvestment schemes. This tendency will make LIC another Department of the Govt. but of course we the retired employees will be happy because the CCSG Pension Rules will become applicable to us too and the Chairman need not have to take orders to implement. However, we need not worry much about the section as it is, according to me, relevant and the learned counsel for the LIC, without adequate preparation seem to have wrongly quoted the section in the Jaipur HC.

Now we come to another important Section, which is very important for our consideration and which has not been taken seriously nor seem to have been subject of legal scrutiny and that is Section 23 of the LIC Act, which I quote for easy reference:

23. Staff of the Corporation.-
1.   For the purpose of enabling it to discharge its functions under this Act, the Corporation may employ such number of persons as it thinks fit.
2.   Every person employed by the Corporation or whose services have been transferred to the Corporation under this Act, shall be liable to serve anywhere in India”.
       Simply put, it means give work to (someone) and pay them for it. It consists of various stages. In modern Management Theory it is a process of locating suitable persons for the job, evaluate their suitability based on the employers requirement, select the best available by attracting them with offer of competitive compensation. It is to be remembered that “offer of peanuts will only attract monkeys”. In the LIC the process is streamlined and cadre wise remuneration is fixed. What is the role of the Govt.? Once in 5 years, LIC after discussion with the Employees Trade Unions, enters into  agreements, which they now call M.O.U, and forwards to Govt. for notification under Sec.48. Can this not be done without such notification in the absence of any reservation of this function solely to the Govt. in the LIC  Act. Yes it is possible under Sec.23, although it is not specifically mentioned in that section. There are legal provisions allowing it.
i)quando aliquid mandatur, mandatur et omne per quod  pervenitur ad illud : When anything is commanded everything by which it can be accomplished is also commanded.
 ii) quando lex aliquid alicui, concedit, concedere videtur id sine quo res ipsa esse non potest  Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect. On this maxim is based the doctrine that if a Legislature enables something to be done, it gives powers at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view. This doctrine can be invoked where an act confers a jurisdiction. It also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution. (See Bidi, Bidi Leave & Tobacco Merchants Association v. State of Bombay [1961] (ii) 1 LJ 663.) This maxim was discussed by the Supreme Court in Dinesh Dutt Joshi v. State of Rajasthan [2001] 8 SCC 570.This “powers, at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view. This doctrine can be invoked where an act confers a jurisdiction. It also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution.”
The two quotes with the SC Judgements is in support of the point that as of now there exists powers with the LIC to determine the service conditions of its employees without any reference to the Govt. and the notification under Sec.48 is as a result of historical facts of the agitations of the Trade Unions in the LIC relating to amenability to the writ jurisdiction, payment of bonus and the determined efforts to physically prevent computerization and the helplessness of the Management by shifting powers to the Govt. and escape responsibility in the shadow of the Emergency. However, since LIC Act permits LIC “For the purpose of enabling it to discharge its functions under this Act, the Corporation may employ such number of persons as it thinks fit” gives jurisdiction, It also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution.” That will enable the LIC to determine the service conditions of the employees and that means the Sec.48 amendment is supplementing such powers. If therefore, for any reason the powers under Sec.48 are void, as we found earlier, LIC cannot plead want of authority, as it has done in its appeal against the SB Judgement of the Jaipur HC, but act as per the direction of the HC. Of course, under any circumstances the final orders of any court is enforceable.
            It is also necessary to mention that the LIC/Govt. are contesting the case without disclosing material facts that are considered as vital to the sustainability of their claims. It is known to the Govt./LIC that the Nakaras case was decided by the SC in early 1982 and after that a catena of cases were also decided on the basis of that decision. That decision vitiates all their claims and in spite of that, appeals and SLP’s are filed abusing the judicial process against Septuagenarian/octogenarian pensioners that tantamount to harassment of the old and helpless.
            It may be possible for me to complete this thesis after referring to the various anomalies which are the results of the illogical discrimination, which have been meticulously worked by persons like Shri C.H. Mahadevan making my job easier. Once again I would like to mention, all my submissions are based on SC decisions relevant to our case. Other views on legal points may be expressed so as to get all relevant material for the case Managers.
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When something is required to be done, as in Sec23 of    
 the LIC Act, it goes without saying that necessary power/authority is to be given. . The following ruling supports this view.
quando aliquid mandatur, mandatur et omne per quod  pervenitur ad illud : When anything is commanded everything by which it can be accomplished is also commanded
quando lex aliquid alicui, concedit, concedere videtur id sine quo res ipsa esse non potest  Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect. On this maxim is based the doctrine that if a Legislature enables something to be done, it gives powers at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view. This doctrine can be invoked where an act confers a jurisdiction. It also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution. (See Bidi, Bidi Leave & Tobacco Merchants Association v. State of Bombay [1961] (ii) 1 LJ 663.) This maxim was discussed by the Supreme Court in Dinesh Dutt Joshi v. State of Rajasthan [2001] 8 SCC 570.This “powers at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view. This doctrine can be invoked where an act confers a jurisdiction. It also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution.”