In the Judgement of the SC dated 31-3-2016, two main points have come to the fore in the decision of the SC. One is that the Resolution of the Board cannot be considered unless it is notified under Sec.48. The other point is the Constitutional validity of para 3(A) of Annexure to the Pension Rules, which was added by the notification dated 22-6-2000.
Before considering the effect of the Boards’ Resolution, let us consider the second point viz. validity of the para 3(A) of Annexure IV. As argued on behalf of the LIC, the SC has pointed out that he who assails the Constitutional validity of the rule, has to prove the breach of the Constitutional provisions. AT THIS STAGE I WOULD ALSO LIKE TO POINT OUT THAT PARA 3(B) INTRODUCED STATES “IN CASE OF ANY WAGE REVISION IN FUTURE THE RATE OF DEARNESS RELIEF PAYABLE TO AN EMPLOYEE SHALL BE DETERMINED BY THE CORPORATION CORRESPONDING TO THE INDEX TO WHICH THE CASE IS LINKED”. THE IMPORT OF THIS IS FAR REACHING. IT MEANS THAT IN FUTURE ALSO THE DA CAN BE DETERMINED BY THE LIC ITSELF, without reference to Govt. for notification, WHENEVER THERE IS A WAGE REVISION AND THE DR SHALL BE CORRESPONDING TO THE INDEX TO WHICH THE CASE IS LINKED. AND THAT MEANS THE DETERMINATION WILL BE LINKED TO THE DATE OF RETIREMENT. I hope the intention is clear on the part of the Govt. to persist with and perpetuate the hostile discrimination in having different DR to pensioners according to their retirement date. Here also there is a legal lacuna, dealt with separately here, which also must be noted.
That was the reason I am repeatedly writing on the removal of the root cause of the problem viz. Sec.48 2 (A, B & C) read with 2(cc). This is the crux of the problem and para 3(A) is the result of or product of delegation of excessive rule making power and in future para 3(B) will continue to be used to deny legitimate claims of the pensioners. The need of the hour is not to challenge para 3(A) or para 3(B) or both but also the Sec.48 itself, which is not at all difficult because of the decision of the Constitution Bench of the SC in the Nakaras case and a catena of other cases that have been decided based on that case. Is it not a fact that our case is in pari passu the same as that of the Nakaras and is it not easy to convince the judges on the point. We will not only succeed in our present effort but will prevent future denials and will be forerunners to the serving employees also, against the mischievous misuse of the Sec.48, as it stands today. The whole sub section of Sec.48 2 (A, B & C) is draconian and against the cannons of equality before law, equal protection of law and the rule of law. I have earlier quoted from the Appeal of the LIC couched in flowery language, which I later observed was a reproduction from a SC decision, which LIC believes will support their argument. I have also rebutted that arguments with supporting citations and well known legal phrases. Let us be clear that without arguing on Art.14, 16 & 21, we cannot be sure of our aim. Why should we hesitate when the principles have been accepted by the SC and held as the torch light to pensionary jurisprudence.
Now let us go to the question of the Board Resolution. Nowhere in the LIC Act, it is stated that it is the sole privilege of the Govt. to decide the terms and conditions of service of its employees. Let us examine some sections of the LIC Act.
“6. Functions of the Corporation.-
1. Subject, to the rules, if any, made by the Central Government in this behalf, it shall be the general duty of the Corporation to carry on life insurance business, whether in or outside India, and the Corporation shall so exercise its powers under this Act as to secure that life insurance business is developed to the best advantage of the community.
2. Without prejudice to the generality of the provisions contained in sub-section (1) but subject to the other provisions contained in this Act, the Corporation shall have power—
i. To do all such things as may be incidental or conducive to the proper exercise of any of the powers of the Corporation.
3. In the discharge of any of its functions the Corporation shall act so far as may be on business principles.
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.
“48. Power to make rules.- (1) The Central Government may, by notification in the Official Gazette make rules to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(cc) the terms and conditions of service of the employees of the Corporation, including those who became employees of the Corporation on the appointed day under this Act”.
When something is required to be done, as in Sec23 of the LIC Act, it goes without saying that 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.”
Sec.23 gives powers to the Corporation to “employ such number of persons as it thinks fit”. Since this power is given by an Act of Parliament, this doctrine is supreme to that of a Govt. order, which is only a subordinate legislation. A subordinate legislation can only be within the purpose of the Act itself. As per LIC Act Sec.2 “ Without prejudice to the generality of the provisions contained in sub-section (1) but subject to the other provisions contained in this Act, the Corporation shall have power………….
(i) To do all such things as may be incidental or conducive to the proper exercise of any of the powers of the Corporation.
It is therefore safe to argue that LIC has the power to recruit and determine the service conditions of its employees, on its own. After the amendment to the Sec.48 in 1981, the govt. also has powers and such powers coexistent with that of the LIC. Further, the power of the Govt. u/s 48 has to be within the laws. The Govt. swears by the oath of office, to protect and preserve the Constitution. Against that oath, in making the rule, as they are today, in violation of the Constitution with hostile discrimination, the Govt. cannot defend the para 3(A) & (B) of Annexure IV of the Pension Rules, as the delegation of excessive delegation without any control of such fragrant violations by the Parliament, is itself a legislative lapse requires Judicial intervention to prevent the present violation and also the possible future violations. There is no justification for the existence of sub section 2(A, B & C) which is the root cause of the offending para 3(A) and (B) of the Pension Rules. It is not sufficient to undo those two paras but also the Sec.48 sub rules above. My argument is with due respect to the finding of the SC Bench and my opinion is that no serious argument was made on this point.
Herein lies also the basic foundation of our other claim for revision of pension, with every wage revision as held in the Nakaras case, because without the revision there will always be a discrimination which will give rise to fresh agitation and may need further litigation.
There is yet another legal flaw to para 3(B) of Annexure IV of the Pension Rules. The main Act i.e. the LIC Act has delegated the power to make the rules to the Govt. u/s 48. Constitutional and Administrative Law provides the legal principle “delegatus non potest delegare,"one to whom power is delegated cannot himself further delegate that power". It was decided in A K ROY v. State Of Punjab, (1986) 4 SCC 326, that sub delegation of delegated power, is ultra vires to the enabling Act; in our case the LIC Act.
The well accepted and established principle “quando aliquid prohibetur, prohiTbetur et omne per quod devenitur”, meaning what cannot be done directly, is not permissible to be done obliquely and what is prohibited by law to be done, cannot be legally effected by an indirect and circuitous contrivance. That is to say that an Authority cannot be permitted to evade a law by shift or contrivance. This observation of the S.C in Sant Lal Gupta and others Vs Modern Coop Housing Society Ltd and others case on 18-10-2010 (@ para 23 of the Judgement )( is a reiteration of the principle based on its decision of the judgement in the Jagir singh Vs Ranbir Singh and another in 1979(AIR 1979 SC 381) and then again in 1997 in M.C.Metha Vs Kamalnath and others(AIR 2000 SC 1997) . The saving provision is thus a negation of the rule of law and it serves as a contrivance to evade a law and hence void.
If therefore, we prove that the sub sections to Sec.48 (supra) are a negation of the rule law, as held in the Nakaras case and therefore against Art.21, it will be void and along with it para 3(A) & (B).