Damocles Sword hanging :Reply Silver lining : UOI NO GROUND TO INTERVENE
We have Supreme Court judgement dt 3/6/10 categorically stating that Statutory Bodies created under law by Govt hold independent position & decision making & Superior authority cannot & must not intervene & even if they do so, that authorities dictat shall not prevail or hold good.
“Therefore, the law on the question can be summarized to the effect that no higher authority in the hierarchy or an Appellate or Revisional authority can exercise the powers of the Statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner . If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remain unenforceable for the reason that it cannot be termed to be in order passed under the Act”
It is , therefore, abundantly clear from the above, that when once. after all due considerations & circumstances etc, the Pension Rules, 1995,as a Complete Code by itself,was promulgated by LIC with Govt Notification, all pros & cons are cleared & the course of Pension Rules, 1995 must run without any interference by Higher Authority or UOI. Here LIC is the Statutory Authority & UOI is the Revisional Authority.
Therefore the Corporation is bound to implement the decision it has taken in its Board meeting held on 24.11.2001 with DR rectification for pre-8/97 pensioners & pension upgradation open at that point of time with merger of Revised DR with Basic Pension & so on consecutively for CPI 600,1148,1740
It is settled law as laid down by the Hon’ble Supreme Court in catena of judgments that in the functioning of Boards of Statutory Authority,- the State, its authorities, Ministers and Politicians have no say.
The Hon Kerala HC observed “the status of the Corporation (KSWC) as a jurist person, as a body corporate with a common seal and its existence would be scuttled and subservient to the dictates of the Govt,as if the Corporation is a department in the Govt. This is plainly impermissible ”
SEC 48 is only to make rules & not to interfere in the working of the RULES.CG cannot sit on judgement on every matter decided by LIC. Further,as UOI Counsel said in SINGLE JUDGE hearing, there was nothing of public interest involved beyond framing of PENSION REGULATIONS, 1995.
It is made abundantly clear in both the Single Judge Verdict dt 12/1/2010 as well as the Hon DB Jaipur HC verdict dt 21/1/2011 that as UOI intervention is not now required ,that silence so far itself is construed as acceptance of UOI decision of LIC Board Resolution, that UOI has not given any written guidelines on any policy matter affecting public interest, it ipso facto becomes explicit that an Order by LIC Board is quite sufficient,& there is no need for any amendment of Pension Rules .
2)So-called Ripple Effect Argument : Cannot stand scrutiny of law :
i) Insurance pensioners are still in pre IV Pay Commission mode, as Basic pension remains same & static untouched ever since LIC Pension Rules, 1995 was formulated & so from 1/11/1993, 21 years no revision whatsoever .One cannot wriggle out of Constitution the hallmark of proclamation of Fundamental Rights & blind to this,formulate a solution.
ii)Kerala HC ,Chandrasekar Menon T vs UOI & Ors :
‘the object of compensation & neutralization is completely defeated by payment of DR after reducing slab at all stages .DR at decreasing slab at all stages is unjust & unreasonable’
iii)Manmohan C vs Kerala State Warehousing Corpn ,MOF utterance that such grant of pension updation will lead to repercussions in PSBanks & elsewhere –‘is nothing but a concocted bogey by Central Govt .Such a statement is unfounded ,& is nothing but meekness & has no constitutional or legal foundation.’
iv) Justice Khandelawal Committee Report claims that Institutional settlement is the only logical & coherent answer to such issues & not jumbo for all & full scope & powers on all HRD,Personnel matters including wage/pension as necessary concomitant.
3)Lingering doubt whether to Petitioners alone or All pensioners:
i)SC verdict that “when a benefit is extended to group of employees, the effect of such benefit if otherwise comes within the purview therepf must be held to be applicable to other group of similarly placed employees “ So, none need worry as petitioners now will embrace all pensioners for the benefit ,when achieved.
ii)As Delhi HC has already settled the matter categorically making the verdict applicable “in rem”,ie to all pensioners, we need not now entertain that doubt
It is also heartening that Punjab & Haryana HC has also pronounced verdict on the shoulders of Hon SJ Bhandai’s judgement , granting 12 % interest for delay
4)Can LIC afford :Question of Outlay:Arguments plenty,affordable
a)i)For FY 2013—14, LIC TPI stood at 2,40,040cr ,a growth of 15.1%,
Investment,rental & other income Rs1,45,461 cr,growth of 16.3%,so
Total Income Rs3,85,501 cr ,growth 18.1%.
Total Expenses of Management Rs34,447 cr,showing a rise of 9.4%
LIC paid advance IT of Rs5119 cr as against Rs4324cr for FY 2012-13
Service tax paid is Rs4022.4 cr ,provisional ,as against Rs3682.6 cr for FY2012-13
ii)IT Appellate Tribunal,Mumbai has given the judgement in favour of LIC for AY2007-08, 2008—09, & 2009-10,LIC received refund of Rs 4190.2 cr for AY 2007-08,& 2009-10 on 31/12/2013 .Refund for AY 2008-09 of Rs 9000cr app is expected shortly.
For FY2013-14,Investments of LIC rose by 41% to Rs 278,340.7 cr ,provisional, as against Rs196,828.4 cr in FY 2012-13
Up to November 10,2014 LIC booked profits of Rs 11,500 crore in the equity market.
iii)Staggering Assets of Rs17,69,192cr & Total Life Fund Rs 16,07,025cr as at 31/3/2014.
Peoples Money for peoples Welfare,befitting LIC Motto,tremendous fillip to Govt 5-Year Plans
LIC solvency & stability is unquestionable
iv)SURPLUS Last 16 yrs alone,LIC paid to Govt crossed Rs 10,000 cr ,a Kamadhenu indeed, & all on a mere Rs5cr given by Govt on 1/9/1956. WHAT AN ENTITY, in fact, ALL CONSTITUENTS of such EMINENT INSTNS must have ALL BENEFITS, PERKS much much HIGHER for the OUTSTANDING PERFORMANCE.
v)TOTAL OPERATING EXPENSES & EMPLOYEES REMUNERATION & WELFARE EXPENSES :
TOTAL OPERATING EXPENSES-- --31/3/2011: Rs16,980cr: Rs497Cr PENSION Payments 2.93% only
b) Outlay for pension revision after wage revision will be a tail of wage agreement PLLI,will be a tail of Meal Coupon offer by LIC to Employees apart from fabulous wage rise –Rs450 cr bonanza, a tail of other Allowances other than DA, HRA, CCA again for all
.Board consent was secured though PLLI norms were not met & employees got benefit,even if not qualified. Why not this magnanimity be exhibited towards lesser mortals like pensioners,who richly deserve more. Similar such outlay can well go to grant pension upgradation & to augment pensioners’ welfare.
c)Further, it is to be borne in mind that LIC itself ,in its SECRET letter dt 31/12/2001 to then Joint Secretary,MOF,Sri Ajit Sharan, secured under RTI & 11/8/2003, to MOF/UOI state clearly “there is an urgent need to rationalize the DR structure available to different groups of pensioners in order to reduce the administrative inconvenience & also to see that different generations of pensioners are protected by merging the pension to a suitable index.” This clinches the issue of successive pension revisions with every wage revision.It has a vital bearing on continued pension upgradation. It stretches & goes beyond Board Resolution to capture full & continuous pension revision at CPI 600,1148,1740,2328,2994
5)Goes against the grain of Pension Rules, 1995 & needs amendment: NOT AT ALL
a) Reliefs claimed do not offend any of the provisions of LIC PENSION RULES,1995
It does not require any amendment of existing Pension Rules, 1995. No amendment in the Pension Rules is required, because there is no provision in the Pension Rules that pension will never be revised
UOI consent was fortified by UOI Counsel in SJ,JAIPUR hearing.
b) Rule 5(3),Chapter III of Pension Rules,1995, ‘the Corporation shall be a contributor to the Fund & shall ensure that sufficient sums are placed in it to enable the Trustees to make due payments to the beneficiaries under these Rules. Rule 13(b) states , ‘ the Trust shall, subject to the availability of additional sums in the Fund, to be provided by the Corporation as required under Rule 5(3) to purchase additional annuities as & when it becomes necessaryto revise upwards the benefits payable in accordance with these rules ’
Revision in pension has been contemplated & provided In Pension Rules,1995.
c)Central Govt never made any amendment to its CCCPension Rules but only by a simple Administrative Order
d)What we are pleading to Hon SC Bench is to effectuate meaningful implementation of the judgements & also, in that direction,to issue orders to LIC to operationalise & implement both Full 100% DR to Pre-8/97 Pensioners & pension revision with successive wage revisions for all groups of pensioners to enable all to come under one homogeneous group of pensioners, without pre &post labels & to establish equity & equality .
6)A Peep into SC discretionary power :
i)Though the discretionary power vested in the Supreme Court under Article 136 is apparently not subject to any limitation, the Court has itself imposed certain limitations upon its own powersvide Ram Saran Das and Bros. Vs. Commercial Tax Officer, Calcutta & Ors. AIR 1962 SC 1326(1328) and Kunhayammed Vs. State of Kerala 2000(6) SCC 359 (para 13). The Supreme Court has laid down that this power has to be exercised sparingly and in exceptional cases only.Thus, in Pritam Singh Vs. The State AIR 1950 SC 169, this Court observed (vide para 9) as under:-
"On a careful examination of Art.136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article."
ii)It is not every case where the apex court finds that some injustice has been done that it would grant Special Leave and interfere. That would be converting the apex court into a regular court of appeal and moreover, by so doing, the apex court would soon be reduced to a position where it will find itself unable to remedy any injustice at all, on account of the tremendous backlog of cases which is bound to accumulate.
“We must realize that in the vast majority of cases, the High Courts must become final, even if they are wrong",said SC analysis & findings
7)General but Relevant points to rebut LIC SLP/CAs :
i)Arguments advanced for obeying the statute are not fatal to the maintainability of the HC verdicts ,& as many as 10 Hon Judges have bestowed attention,applied their minds after due hearing of submissions, that too legal sittings having extended so long for many many years & intense last 5 yrs.& concurred with Hon SJB Rajasthan HC Verdict dt 12/1/2010.Courts have to maintain a fine, delicate balance of the strength & purity of the submissions, the clarity & holistic presentation with proper delineation of reason & logic, impenetrable as it should be & as it has been,conferring the balance of advantage in Petitioner/pensioners favour.
ii)SC Bench must lay focus & attention, not to law or statute per se, but the implications to the aggrieved ,the violation of Fundamental Rights to citizens, more so Sr Citizens,& then only apply any dictum with the force & impetus it had served in realizing or sabotaging the overall superiority of canons of law.Blind adherence to statutes & law, without weighing the force of implications,reach or repercussions, whether help or hurt,is what should be eschewed . More paramount than mere mechanical,rugged, blind imposition of lawwill be the facets of the issue,the nature of environment & circumstances,bonafide impact, severity of loss juxtaposed amongst petitioners/pensioners & such other overriding & cardinal principles tested on the touchstone of judicial balance which should drive the Hon SC Bench to appreciate the underlying responsibility of SC as a savior & protector of the aggrieved in the realization of their genuine, modest demands.
iii)It must not so happen in a democracy, in a welfare State that after laws are made, statutes are created, there is no way for an ordinary citizen to approach Courts, when he finds Rights & liberty trampled upon & one cannot resign to fate cursing that he has to bear the brunt of imposition of such laws without legal remedy or recourse.That will convert a democracy to a dictators heyday, citizens mute spectators & silent sufferers of apathy & neglect, delay & disdain,& imposition of draconian provisions subverting equity, law & justice to any & every citizen of this country.Institutions & State will run besmerk & sabotage citizens welfare ,progress & right to equality & liberty, the eyes & ears of our sacred Constitution.
8)LIC pensioners have high tolerance levels. Such monstrous differences ,gross anaomalies in pension with 8/9 grades below getting more& perversities can be set right only by a Sane Judiciary.Regular Pension upgradation with Full DR as directed by the series of Judgements in our long & gruelling journey has to be blessed by SC Bench , with all the meandering routes, ups & downs we faced & so deserving to secure our modest,genuine & legitimate demands
An optimist invented the aeroplane, a pessimist invented the parachute.
Let us be optimists,realists & pragmatists ,as the arduous legal Kurukshetra battle has shown & with Faith as our watchword & intense prayers to clinch Final Victory for all groups of pensioners.
Greetings, Goodluck & Godspeed,
R.B.KISHORE,VP,AIRIEF,
2)So-called Ripple Effect Argument : Cannot stand scrutiny of law :
i) Insurance pensioners are still in pre IV Pay Commission mode, as Basic pension remains same & static untouched ever since LIC Pension Rules, 1995 was formulated & so from 1/11/1993, 21 years no revision whatsoever .One cannot wriggle out of Constitution the hallmark of proclamation of Fundamental Rights & blind to this,formulate a solution.
ii)Kerala HC ,Chandrasekar Menon T vs UOI & Ors :
‘the object of compensation & neutralization is completely defeated by payment of DR after reducing slab at all stages .DR at decreasing slab at all stages is unjust & unreasonable’
iii)Manmohan C vs Kerala State Warehousing Corpn ,MOF utterance that such grant of pension updation will lead to repercussions in PSBanks & elsewhere –‘is nothing but a concocted bogey by Central Govt .Such a statement is unfounded ,& is nothing but meekness & has no constitutional or legal foundation.’
iv) Justice Khandelawal Committee Report claims that Institutional settlement is the only logical & coherent answer to such issues & not jumbo for all & full scope & powers on all HRD,Personnel matters including wage/pension as necessary concomitant.
3)Lingering doubt whether to Petitioners alone or All pensioners:
i)SC verdict that “when a benefit is extended to group of employees, the effect of such benefit if otherwise comes within the purview therepf must be held to be applicable to other group of similarly placed employees “ So, none need worry as petitioners now will embrace all pensioners for the benefit ,when achieved.
ii)As Delhi HC has already settled the matter categorically making the verdict applicable “in rem”,ie to all pensioners, we need not now entertain that doubt
It is also heartening that Punjab & Haryana HC has also pronounced verdict on the shoulders of Hon SJ Bhandai’s judgement , granting 12 % interest for delay
4)Can LIC afford :Question of Outlay:Arguments plenty,affordable
a)i)For FY 2013—14, LIC TPI stood at 2,40,040cr ,a growth of 15.1%,
Investment,rental & other income Rs1,45,461 cr,growth of 16.3%,so
Total Income Rs3,85,501 cr ,growth 18.1%.
Total Expenses of Management Rs34,447 cr,showing a rise of 9.4%
LIC paid advance IT of Rs5119 cr as against Rs4324cr for FY 2012-13
Service tax paid is Rs4022.4 cr ,provisional ,as against Rs3682.6 cr for FY2012-13
ii)IT Appellate Tribunal,Mumbai has given the judgement in favour of LIC for AY2007-08, 2008—09, & 2009-10,LIC received refund of Rs 4190.2 cr for AY 2007-08,& 2009-10 on 31/12/2013 .Refund for AY 2008-09 of Rs 9000cr app is expected shortly.
For FY2013-14,Investments of LIC rose by 41% to Rs 278,340.7 cr ,provisional, as against Rs196,828.4 cr in FY 2012-13
Up to November 10,2014 LIC booked profits of Rs 11,500 crore in the equity market.
iii)Staggering Assets of Rs17,69,192cr & Total Life Fund Rs 16,07,025cr as at 31/3/2014.
Peoples Money for peoples Welfare,befitting LIC Motto,tremendous fillip to Govt 5-Year Plans
LIC solvency & stability is unquestionable
iv)SURPLUS Last 16 yrs alone,LIC paid to Govt crossed Rs 10,000 cr ,a Kamadhenu indeed, & all on a mere Rs5cr given by Govt on 1/9/1956. WHAT AN ENTITY, in fact, ALL CONSTITUENTS of such EMINENT INSTNS must have ALL BENEFITS, PERKS much much HIGHER for the OUTSTANDING PERFORMANCE.
v)TOTAL OPERATING EXPENSES & EMPLOYEES REMUNERATION & WELFARE EXPENSES :
TOTAL OPERATING EXPENSES-- --31/3/2011: Rs16,980cr: Rs497Cr PENSION Payments 2.93% only
b) Outlay for pension revision after wage revision will be a tail of wage agreement PLLI,will be a tail of Meal Coupon offer by LIC to Employees apart from fabulous wage rise –Rs450 cr bonanza, a tail of other Allowances other than DA, HRA, CCA again for all
.Board consent was secured though PLLI norms were not met & employees got benefit,even if not qualified. Why not this magnanimity be exhibited towards lesser mortals like pensioners,who richly deserve more. Similar such outlay can well go to grant pension upgradation & to augment pensioners’ welfare.
c)Further, it is to be borne in mind that LIC itself ,in its SECRET letter dt 31/12/2001 to then Joint Secretary,MOF,Sri Ajit Sharan, secured under RTI & 11/8/2003, to MOF/UOI state clearly “there is an urgent need to rationalize the DR structure available to different groups of pensioners in order to reduce the administrative inconvenience & also to see that different generations of pensioners are protected by merging the pension to a suitable index.” This clinches the issue of successive pension revisions with every wage revision.It has a vital bearing on continued pension upgradation. It stretches & goes beyond Board Resolution to capture full & continuous pension revision at CPI 600,1148,1740,2328,2994
5)Goes against the grain of Pension Rules, 1995 & needs amendment: NOT AT ALL
a) Reliefs claimed do not offend any of the provisions of LIC PENSION RULES,1995
It does not require any amendment of existing Pension Rules, 1995. No amendment in the Pension Rules is required, because there is no provision in the Pension Rules that pension will never be revised
UOI consent was fortified by UOI Counsel in SJ,JAIPUR hearing.
b) Rule 5(3),Chapter III of Pension Rules,1995, ‘the Corporation shall be a contributor to the Fund & shall ensure that sufficient sums are placed in it to enable the Trustees to make due payments to the beneficiaries under these Rules. Rule 13(b) states , ‘ the Trust shall, subject to the availability of additional sums in the Fund, to be provided by the Corporation as required under Rule 5(3) to purchase additional annuities as & when it becomes necessaryto revise upwards the benefits payable in accordance with these rules ’
Revision in pension has been contemplated & provided In Pension Rules,1995.
c)Central Govt never made any amendment to its CCCPension Rules but only by a simple Administrative Order
d)What we are pleading to Hon SC Bench is to effectuate meaningful implementation of the judgements & also, in that direction,to issue orders to LIC to operationalise & implement both Full 100% DR to Pre-8/97 Pensioners & pension revision with successive wage revisions for all groups of pensioners to enable all to come under one homogeneous group of pensioners, without pre &post labels & to establish equity & equality .
6)A Peep into SC discretionary power :
i)Though the discretionary power vested in the Supreme Court under Article 136 is apparently not subject to any limitation, the Court has itself imposed certain limitations upon its own powersvide Ram Saran Das and Bros. Vs. Commercial Tax Officer, Calcutta & Ors. AIR 1962 SC 1326(1328) and Kunhayammed Vs. State of Kerala 2000(6) SCC 359 (para 13). The Supreme Court has laid down that this power has to be exercised sparingly and in exceptional cases only.Thus, in Pritam Singh Vs. The State AIR 1950 SC 169, this Court observed (vide para 9) as under:-
"On a careful examination of Art.136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article."
ii)It is not every case where the apex court finds that some injustice has been done that it would grant Special Leave and interfere. That would be converting the apex court into a regular court of appeal and moreover, by so doing, the apex court would soon be reduced to a position where it will find itself unable to remedy any injustice at all, on account of the tremendous backlog of cases which is bound to accumulate.
“We must realize that in the vast majority of cases, the High Courts must become final, even if they are wrong",said SC analysis & findings
7)General but Relevant points to rebut LIC SLP/CAs :
i)Arguments advanced for obeying the statute are not fatal to the maintainability of the HC verdicts ,& as many as 10 Hon Judges have bestowed attention,applied their minds after due hearing of submissions, that too legal sittings having extended so long for many many years & intense last 5 yrs.& concurred with Hon SJB Rajasthan HC Verdict dt 12/1/2010.Courts have to maintain a fine, delicate balance of the strength & purity of the submissions, the clarity & holistic presentation with proper delineation of reason & logic, impenetrable as it should be & as it has been,conferring the balance of advantage in Petitioner/pensioners favour.
ii)SC Bench must lay focus & attention, not to law or statute per se, but the implications to the aggrieved ,the violation of Fundamental Rights to citizens, more so Sr Citizens,& then only apply any dictum with the force & impetus it had served in realizing or sabotaging the overall superiority of canons of law.Blind adherence to statutes & law, without weighing the force of implications,reach or repercussions, whether help or hurt,is what should be eschewed . More paramount than mere mechanical,rugged, blind imposition of lawwill be the facets of the issue,the nature of environment & circumstances,bonafide impact, severity of loss juxtaposed amongst petitioners/pensioners & such other overriding & cardinal principles tested on the touchstone of judicial balance which should drive the Hon SC Bench to appreciate the underlying responsibility of SC as a savior & protector of the aggrieved in the realization of their genuine, modest demands.
iii)It must not so happen in a democracy, in a welfare State that after laws are made, statutes are created, there is no way for an ordinary citizen to approach Courts, when he finds Rights & liberty trampled upon & one cannot resign to fate cursing that he has to bear the brunt of imposition of such laws without legal remedy or recourse.That will convert a democracy to a dictators heyday, citizens mute spectators & silent sufferers of apathy & neglect, delay & disdain,& imposition of draconian provisions subverting equity, law & justice to any & every citizen of this country.Institutions & State will run besmerk & sabotage citizens welfare ,progress & right to equality & liberty, the eyes & ears of our sacred Constitution.
8)LIC pensioners have high tolerance levels. Such monstrous differences ,gross anaomalies in pension with 8/9 grades below getting more& perversities can be set right only by a Sane Judiciary.Regular Pension upgradation with Full DR as directed by the series of Judgements in our long & gruelling journey has to be blessed by SC Bench , with all the meandering routes, ups & downs we faced & so deserving to secure our modest,genuine & legitimate demands
An optimist invented the aeroplane, a pessimist invented the parachute.
Let us be optimists,realists & pragmatists ,as the arduous legal Kurukshetra battle has shown & with Faith as our watchword & intense prayers to clinch Final Victory for all groups of pensioners.
Greetings, Goodluck & Godspeed,
R.B.KISHORE,VP,AIRIEF,