The Scene now shifts to 24 November
2015 (means at least slightly improved chances for continuous hearing)
The Jaipur Judgement – its significance & benefits, the Achilles
heel Finally, the balancing act
needed to achieve victory…..
This part is by far the toughest and most critical, to understand
and steer our cases forward and put our fortunes to test, before the Apex
Court. Here arises the need for the ‘concerned’ clients and the Counsel to
allow themselves to be intensely quizzed, exposed to the strong points of the
opposite party, subject each and every point believed to be in our favour to
rigid legal scrutiny, visualize the arguments of others that we may be confronted
with and grill our own counsel, on how he intends to overcome the same, should
the need arise. Last and the most important - shun over-confidence.
Instead of continuing with the rhetoric, let me go straight to the
point:
We are before the Supreme Court today asking for revision of our
pension because of the Jaipur
Judgement dated 12.01.2010. Conversely, LIC is before the Supreme Court today
denying revision of our pension in spite
of the Jaipur Judgement dated 12.01.2010 and in spite of the other two
judgements that followed on 09.11.2012 at Chandigarh and on 30.01.2013 at
Delhi. The latter two Judgements are the outcome of the two respective separate
Writ Petitions having been allowed by the High Courts, concurring with the
Jaipur Judgement. There are thus separate Civil Appeals filed by LIC against each
of the three Judgements. The Counsel concerned, while opposing the respective Appeal
is expected to protect the benefit his clients had secured earlier and make it
‘final & binding’ by getting LIC’s CA rejected.
The above analysis may be an over simplification of the high stakes we
are facing. When the Court clubbed the matters together for common Hearing,
there is an underlying judicial assumption that the issues in the original WPs,
decisions and the Orders delivered by ALL the Judgements are similar if not the
same. We have not (not even the Delhi Petitioners) disputed such an
assumption nor are we going to do so. If the issues in all the Appeals are
assumed to be common, we have no problem and we welcome a common final Order
rejecting all the Appeals.
In reality however, the Delhi Writ Petition and the prayer therein
was for 100% DR neutralization for the pre-Aug 97 retiree Class 1
Officer-members of the Petitioner-Federation, only. The Chandigarh WP and the
prayer therein were for the Pension up-gradation of the 31 Petitioners. The
Jaipur (common) Judgement naturally applies to the Petitioners named in both
the WPs that were allowed by a common Order.
Click below to continue reading.
At this stage, it is necessary to generally understand and properly
interpret an Order and a Judgement in a Writ Petition. Many of our Pensioners
think that what has been ordered by the three High Courts is ‘Pension
up-gradation’ straight away, as applicable to Central Government
Pensioners. This was no doubt the prayer
in Chandigarh WP and in one of the two
WPS in Jaipur viz., 654/2007 (allowed under the common Order dated
12.01.2010). Irrespective of the glaring variance in the prayers in each of the
Four WPs, the Delhi & the Chandigarh WPs were “Allowed in terms of
the Rajasthan Order. The Supreme Court is not going to look in to a ‘comparative
chart’ of which WP prayed for what relief and what benefit is allowed or not
allowed under which WP etc.,
I now rush to explain our core problem area. When a WP is allowed by
a HC, the benefit/s granted may or may not be ALL that was prayed in the Petition
and pleaded during the arguments. Theoretically a Court can (has the power to)
grant certain additional relief/benefit over and above what is prayed for in a
Petition also. (Specific relief sought in every Petition is followed by an
omnibus concluding part: Something like ‘Any other relief that the honourable
court may be pleased to grant in the interests of justice’).
Normally however the actual benefit granted is what is expressly
mentioned in the operative part of the Judgement. One cannot take a
position: ‘My WP is allowed, this is what I prayed for and so what is granted
while allowing the WP is all that I prayed for’. Where the Judgement &
Order expressly mention the relief granted while allowing the Writ Petition,
the Respondent is bound to comply with the specific part of the Order (unless
set aside by a larger Bench or a higher Court on an Appeal). In our case, the
Jaipur Judgement directed LIC to take steps to implement the Board Resolution
and added that the Government approval was not necessary for doing so. In other
words, the relief/benefit granted while allowing the WPs (two in Rajasthan and
the other two by specific reference to the same) is that LIC should implement
the Board Resolution without waiting for the Government approval. To infer/assume
anything more than what is ordered in the operative portion, is not sustainable
in the eye of law. Let me remind the Pensioner friends that common logic &
fair assumptions do not go hand in hand with strict (cold) interpretation of
the legal implications of Court Orders.
If the three Judgements are upheld and the CAs are dismissed without
any other comprehensive categorical directions by the Apex Court, like
up-gradation of Pension with each wage revision effective from such and such
date, what we get is implementation of the Board Resolution, exactly as LIC has
interpreted it for the purpose of payment of 20%. Can we afford it?
Thus the most tenuous point in our case and naturally heavily relied
on by LIC is the Order under Appeal that Board Resolution should be implemented
without Government approval. When the validity of Section 48 (2) of LIC
Act as amended, is not under any fresh challenge in the current proceedings,
one cannot wish it away as ‘not applicable’. I am sure that total reliance on
the Jaipur Order merely to implement the Resolution, would lead us nowhere.
Firstly it is very unlikely and secondly, even if it happens, ‘operation is
successful but the patient had died’.
As far as I understand, the Rajasthan Petitioners intend to press
for upholding the Judgement dated 12.01.2010. In support of the same, they are
relying heavily on a few facts viz., i) Three High Courts said so, ii) There
are precedents where Chairman LIC gave administrative instructions involving
amendment of service conditions of employees, iii) Union of India’s failure to
approve or reject the Board recommendation amounts to its tacit approval and
iv) UoI’s Counsel himself conceded before the Division Bench that LIC is free
to act on its Resolution.
The brief arguments, albeit informal, on 30 Sept 2015, provided a
stage for a sort of ‘dress rehearsal’ for the final performance by the Jaipur actors.
Everybody present got a ‘feel’ of the mind of the Bench on the issues listed at
ii) to iv) above. The wind on each of those arguments was against the Sr.
Counsel. He did however generally indicate to the Judge, to the effect that
while he was banking on those points to support his case, he would also put
forth his plea under the Constitutional provisions also. Better he does it for
sure and still better, his client lets him do so. In this sensitive scenario,
the Counsel appearing for the Chandigarh Petitioners is sufficiently briefed
and fully prepared. To supplement the arguments of Jaipur Sr Counsel/s on the
line taken by them where there is no disagreement and more than that, to fill
the gaps if any (I love to describe them as ‘gaping holes’), not to take
chances and risk the interests of a large trusting community of LIC Pensioners.
I have a strong (may appear ‘strange’ to some) view (backed by Sri C
H Mahadevan also) in respect of the two new belated SLPs filed by Union of
India and posted for hearing (against the Jaipur Judgement only and so
Chandigarh & Delhi have no locus to appear in them). They are being opposed
by the Jaipur Petitioners on various grounds – merits as well as the
unreasonable delay. My view is that without prejudice to the rights of the
Respondents to oppose them on merits, we may stand to gain if the Court admits
the SLPs and hears them also as regular Appeals and eventually dismiss them on
merits, instead of rejecting them t the threshold on the technical ground of laches.
If I am permitted to explain, UoI filed the SLPs (even with a five year delay)
to overcome the adverse finding by the HC Division Bench at Jaipur that the
Government chose not to appeal against the HC Orders involving its statutory functions
under Sec 21 & 48 of LIC Act. If only UoI’s SLPs are admitted and when it
is directly an Appellant before the Bench, it would be possible for us to press
for and the Court to issue directions directly to the Government to set right
the violation of Constitutional provisions, amend the Pension Rules as per Law
in order to revise the Pension which is admittedly (allegedly) beyond the
powers of LIC.
We will of course work for such an outcome, in any case, in
consultation with our Counsel.
On the all-important question of ensuring that the final relief has to
flow to ALL the Forty Thousand Pensioners & ALL Family Pensioners, we do
have an action plan in mind, to be pursued seriously. It is a bit premature to open up on that
contingency plan
.
It is learnt that the AIRIEF which had a gala EC Meeting at Bhopal
on 1 & 2 Nov (sans the benefit & presence of the architect of the
Jaipur Judgement) developed cold feet on its own impleadment proposal and may
silently reverse its earlier decision announced publicly. How the Federation ensures
the applicability of the final favorable Judgement of the Supreme Court to all
its members and hundreds of other contributors to its coffers, has to be seen,
as the 20% IR was received only by the main Petitioner and some 20 others.
A small quiz to the well informed readers of LIC PC:
Wish to know why according to you, the Solicitor General of India is
retained by LIC and NOT by the Union of India (to fight poor LIC Pensioners)?
I will share my guess after 24 Nov 2015.
(concluded).