Application of LIC and Reply for the same by Shri KML Asthana


NEXT DATED 1/12/2011

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN - JAIPUR BENCH AT JAIPUR


S.B. Civil Contempt Petition No. 760 of 2010 In S.B. Civil Writ Petition No. 654 of 2010


Krishna Murari Lal Asthana Petitioner Versus T.S. Vijayan & Others Respondents


REPLY TO THE APPLICATION ON BEHALF OF THE PETITIONER

To,

Hon’ble the Chief Justice

And His other Companion Judges of

The High Court of Judicature for

Rajasthan, Jaipur Bench at Jaipur

***

MAY IT PLEASE YOUR LORDSHIPS,

The humble Petitioner most respectfully submits the reply to the application filed on behalf of the Life Insurance Corporation of India as under:

1. That the facts mentioned in the application with regard to the proceedings in the two writ petitions filed by the Petitioner are matters of record of this Hon’ble Court. The copies of the judgments passed at various stages have already placed on record by the Petitioner as Annexures 15, 16 and 17.

2. That the Contempt Petition is to be listed on 1st December, 2011 for the personal appearance of the Respondent Nos. 2 and 3 in case the compliance has not been made within four weeks as undertaken on 30/10/2011 and which forms part of the order of this Hon’ble Court of that date. But the said Respondents have not filed any application nor appear to be presenting themselves on the next date of hearing i.e. 1/12/2011. After giving the undertaking the Respondents moved application denying the said undertaking on the ground that the Counsel who had given undertaking was only sent for seeking time and was not an authorized Advocate. But the same Advocate Shri Ajay Tyagi has filed the present application besides he was appointed by the Contemners as their Advocate along with Shri Mahendra Singh, Advocate as would appear from the Vakalatnama. These acts of the Respondents confirm that they have no respect for this Hon’ble Court and they can take any stand, whether right or wrong and they are avoiding appearance before this Hon’ble Court again and again.

3. That the Applicants are habituated of making wrong statements. In this para also it has wrongly been stated that in the direction dated 15.07.2011 the Hon’ble Supreme Court had stayed the contempt proceedings for the period of three months, while as would appear from the judgment dated 15.07.2011, as has been placed by the Petitioner as Annexure 16 along with his application made earlier on 21/9/2011, the review petition was to be decided as early as possible but not later than three months and till then the proceedings will remain stayed, which meant that till the decision of the review petitions the contempt proceedings would remain stayed and with the decision of the review petitions on 19/8/2011 the stay came to an end.

4. That on 14/11/2011 the Special Lave Petitions came up before the Hon’ble Supreme Court when the learned Sr. Counsel for the Petitioner again stated that they are ready and willing to make payment but the Central Government is not allowing, therefore, direction may be given to the Central Government though Central Government has nothing to do after having given consent.

5. That after hearing the Petitioner-appellants in the aforesaid Special Leave Petitions no order was passed on the S.L.Ps., but the notices were directed to be issued to the Respondents and the rule was made returnable within ten weeks. The proceedings in the Contempt Petition before this Hon’ble Court have been stayed only subject to the Life Insurance Corporation of India depositing the amount due to the employees (Pensioners) within eight weeks from that day i.e. 14/11/2011. In case the compliance of the said order dated 14/11/2011 is not made in letter and spirit and the amount due to all the Pensioners as due on that day are not paid then on expiry of the period of eight weeks from 14/11/2011 the stay will automatically come to an end. The copy of the order as downloaded from the website of the Hon’ble Supreme Court is submitted herewith for ready perusal of the Hon’ble Court and marked as ANNEXURE 18.

6. That the order dated 14/11/2011 is very clear and there is no ambiguity, which the Applicants want to create. This shows that the applicants have no intention to deposit the due amount to the employees (pensioners) and thus make compliance of the order of the Hon’ble Supreme Court, which they want to achieve by getting the order of consigning the file to records.

7. That the Pensioners of the Life Insurance Corporation have been suffering on account of illegal and arbitrary act in the December of their life, therefore, it is in the interest of justice that an appropriate early action may be taken.

8. That the period of eight weeks as granted by the Hon’ble Supreme Court will expire on 8th January, 2012 by which date the amount due has to be deposited in the Registry of this Hon’ble Court. In view of this fact in case the whole amount is not deposited the Respondents will be liable for committing contempt not only of this Hon’ble Court but also of the Hon’ble Supreme Court. Under the circumstances it is submitted that the present proceedings under the Contempt of Courts Act cannot be consigned to record and it may be directed to be listed on 9th January, 2012 or some other near about date as may be deemed to be appropriate to see to the compliance of the order of the Hon’ble Supreme Court otherwise appropriate action may be taken against the contemner Respondents.

It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to dismiss the application of the Applicant-respondents and direct for listing the case on 9th January, 2012 or some other near about date to find out whether the compliance has been made or not and in the event of failure appropriate action may be taken against the Respondents.

Humble Petitioner

Krishna Murari Lal Asthana

Through his Counsel:

(ABHINAV SHARMA)

Advocate

Jaipur

November 29, 2011

Notes:

1. A copy of this reply has been given to the Counsel for the Respondents.

2. This application has been typed by my private Stenographer on stout papers since pie papers were not readily available.



Application filed by LIC


IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR

S.B. CIVIL CONTEMPT PETITION NO. 760/2010 IN S.B. CIVIL WRIT PETITION NO. 654/2010

Krishna Murarilal Asthana ----Petitioner VERSUST.S. Vijayan & Others ---Respondents

APPLICATION FOR PLACING ON RECORD COPY OF ORDER PASSED BY THE HON’BLE SUPREME COURT.

To

THE HON’BLE CHIEF JUSTICE AND HIS CONPANION JUDGES OF THE HON’BLE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR.

MAY IT PLEASE YOUR LORDSHIP

The applicant-respondents most respectfully submit this application as under:-

1. That the present contempt petition arises out of judgment and order dated 12.01.2010 passed by the Hon’ble Single Judge in the writ petitions filed by the petitioner. Against the said judgment special appeals were filed which came to be registered as D.B Special Appeal (Writ) No. 494/2010, Life Insurance Corporation of India V/s Krishan Murari Lal Asthana and DB Special Appeal (Writ) No. 493/2010 Life Insurance Corporation of India v/s Krishna Murari Lal Asthana & others.

2. The special appeals filed against the judgment and order dated 12.01.2010 were decided by the Division Bench of this Hon’ble Court vide common judgment dated 21.01.2011. Against the said judgment Special Leave Petitions were filed before the Hon’ble Supreme Court of India which came to be registered as petition for SLP (Civil) No. 16117 and 16118 of 2011 Life Insurance Corporation of India V/s Krishan Murari Lal Asthana. The said petitions were disposed off by Hon’ble Supreme Court vide order dated 15.07.2011 with a direction that the review petitions filed against the aforesaid order dated 21.01.2011 may be decided within a period of 3 months and till then the contempt proceedings shall remain stayed.

3. That after the common judgment was so passed by the Division Bench dated 21.01.2011, review petitions were filed by Life Insurance Corporation of India. The said review petitions were registered as D.B. Review Petition No. 86/2011, Life Insurance Corporation of India v/s Krishan Murari Lal Asthana and DB Review Petition No. 87/2011 – Life Insurance Corporation of India v/s Krishna Murari Lal Asthana & others. The said review petitions were listed before the Hon’ble Court on 05.08.2011, 12.08.2011 and 19.08.2011 on which date the were dismissed.

4. That in view of the factual and legal position explained hereinabove, Life Insurance Corporation decided to file Special Leave Petition before the Hon’ble Supreme Court after dismissal of the Review Petitions.

5. That the Special Leave Petitions were listed before the Hon’ble Supreme Court on 14.11.2011. On the said date the Hon’ble Supreme Court while ordering issuance of notice to the respondents also ordered for stay f contempt proceedings pending before this Hon’ble Court, subject to the condition that Life Insurance Corporation of India shall deposit requisite amount in the Registry of this Hon’ble Court within eight weeks. Computer print out of the order so passed by the Hon’ble Supreme Court on 14.11.2011 as down loaded from the official website is enclosed as Annexure-A. Certified copy of the said order shall be produced before this Hon’ble Court as soon as it becomes available.

6. That in the present petition an order was passed by the Hon’ble Court directing the respondents to remain present before this Hon’ble Court on 01.12.2011 if the order, which is subject matter of this petition, is not complied within with in a period of four weeks. However, in view of the order passed by the Hon’ble Supreme Court on 14.11.2011 further proceedings in the contempt petition have been stayed.

It is therefore prayed that this application may kindly be allowed and in view of order passed by the Hon’ble Supreme Court staying further proceedings under the Contempt of Courts Act the instant contempt petition may kindly be consigned to record subject to the final outcome of the special leave petitions.

HUMBLE RESPONDENT APPLICANTS

THROUGH COUNSEL


Order on 14-11-2011 in SLP 29956-57

ITEM NO.37 COURT NO.6 SECTION XV

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).29956-29957/2011

(From the judgement and order dated 19/08/2011 in DBCRP No.

86/2011 & DBCRP No. 87/2011 of The HIGH COURT OF RAJASTHAN AT JAIPUR)

L.I.C. Petitioner(s)

VERSUS

KRISHNA MURARI LAL ASTHANA & ORS. ETC. Respondent(s)

(With prayer for interim relief and office report)

Date: 14/11/2011 These Petitions were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE G.S. SINGHVI

HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA

For Petitioner(s) Mr.Harish N.Salve, Sr.Adv.

Mr.R.Venkataramani, Sr.Adv.

Mr. A.V. Rangam,Adv.

Mr.Buddy A.Ranganadhan, Adv.

For Respondent(s) Mr.P.S.Narsimha, Sr.Adv.

Mr.R.K.Singh, Adv.

Mr.Abhinav Sharma, Adv.

Mr.Kumar Gaurav, Adv.

Mr. Rameshwar Prasad Goyal,A.O.R.

UPON hearing counsel the Court made the following

O R D E R

Issue notice, returnable in ten weeks.

Shri R.K.Singh, learned counsel accepts notice on behalf

of the respondents.

In the meanwhile, the proceedings pending before the High

Court under the Contempt of Courts Act, 1971 shall remain stayed

subject to the condition that within eight weeks from today, the

petitioner shall deposit in the Registry of the High Court the

amount due to the employees.

(Satish K.Yadav) (Phoolan Wati Arora)

Court Master Court Master

SLP 29956-57

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) No. 29956 of 2011 AND 29957 OF 2011 (against common final judgment and order dated 19.6.2011 of the Division Bench of the High Cout of Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Review Petition No. 86 of 2011 and D.B. Civil Review Petiion No. 87 of 2011.

SYNOPSIS AND LIST OF DATES

The Petitioner, Life Insurance Corporation of India seeks this Hon’ble Court’s gracious indulgence to approach this Hon’ble Court for the second time (within a period of three months) in respect of the instant matter.

This Hon’ble Court on the earlier occasion, by order dated 15.7.2011 in SLP (Civil) No. 16117 and 16118 of 2011, was pleased to dispose of the said SLPs filed by the petitioner, Life Insurance Corporation of India, in view of the pendency of Review Petitions filed by the petitioner herein for Review of the order of the High Court impugned therein.

The High Court was requested inter alia to decide the Review Petition as early as possible latest within three months.

The High Court by Order dated 19.8.2011 was pleased to dismiss the Review Petition on the ground that there is no error apparent on the face of records, as would merit to interference of the High Court.

In view of the said decision, the petitioner Life Insurance Corporation of India is again approaching this Hon’ble Court, this time against the Order of the High Court in the said Review Petitions.

The matter arises in the following circumstances set out in brief for a consideration of this case as under :-

In this matter, the scope and applicability of Section 48 of the Life Insurance Corporation of India Act 1956 (Central Act 31 of 1956) arises for consideration in deciding whether any resolution of the Board of the Life Insurance Corporation of India proposing an amendment to the said Pension Rules framed by the Central Government would ex proprio vigore be capable of being implemented without an amendment to the Rules. The High Court in the impugned judgment had held that it could be implemented.

The relevant Section 48 of the Life Insurance Corporation of India Act 1956 is extracted below :-

Section 48. Power to make rules

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 my provide for all or any of the following matters, namely :-

(a) the term of office and the conditions of service of members;

(b) the manner in which the moneys and other assets belonging to any such fund as is referred to in Section 8 shall be apportioned between the trustees of the fund and the Corporation;

(c) the services which the chief agent should have rendered for the purpose of the proviso to Section 12;

[(cc) the terms and conditions of service of the employees and agents of the Corporation, including those who became employees and agents of the Corporation on the appointed day under this Act;}

(d) the jurisdiction of the Tribunals constituted under Section 17;

(e) the manner in which, and the persons to whom, any compensation under this Act may be paid;

(f) the time within which any matter which may be referred to a Tribunal for decision under this Act may be so referred;

(g) the manner in which and the conditions subject to which investments may be dame by the Corporation;

(h) the manner in which an Employees and Agents Relations committee may be constituted for each zonal office;

(i) the form in which the report giving an account of the activities of the Corporation shall be prepared;

(j) the conditions subject to which the Corporation may appoint employees;

(k) the fees payable under this Act and the manner in which they are to be collected;

(l) any other matter which has to be or may be prescribed.

[(2-A) The regulations and other provisions as in force immediately before the commencement of the Life Insurance Corporation (Amendment) Act, 1981, with respect to the terms and conditions of service of employees and agents of the Corporation including those who became employees and agents of the Corporation on the appointed day under this Act, shall be deemed to be rules made under clause (cc) of sub-section (2) and shall, subject to the other provisions of this section, have effect accordingly.

(2-B) The power to make rules conferred by clause (cc) of sub-section(2) shall include-

(i) the power to give retrospective effect to such rules ; and

(ii) the power to amend by way of addition, variation or repeal, the regulations and other provisions referred to in sub-section (2-A), with retrospective effect from a date not earlier than the twentieth day of June 1979.

(2-C) The provision of clause (cc) of sub-section (2) and sub-section (2-B) and any rules made under the said clause (cc) shall have effect, and any such rule made with retrospective effect from any date shall also be deemed to have had effect from that date, 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.]

[(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or to be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.” The Petitioner herein is Life Insurance Corporation of India (hereinafter referred for the convenience as L.I.C.) The Respondents herein comprises of various individuals [collectively referred to as Writ Petitioners] and the Union of India.

1956 The Life Insurance Corporation of India came into being through the enactment of an ordinance since replaced by Central Act No. 31 of 1956. The Corporation has several thousands of employees throughout the country. Their appointment and conditions of services are being regulated by various statutory Rules framed by the Central Government in respect of various aspects of conditions of service including Pension benefits etc.

1981 The Life Insurance Corporation Act, 1956 was amended through Life Insurance Corporation (Amendment) Act, 1981 and the Central Government was empowered to make rules, by notification in the Official Gazette, to provide for the terms & conditions of service of the employees & agents of the Corporation.

1995 Life Insurance Corporation of India (Employees) Pension Rules 1995 were framed by the Central Government providing for index linked pension in lieu of Corporation’s contribution to Provident Fund w.e.f. 1.11.1993. However employees who retired between 1.1.1986 to 31.10.1993 were allowed an option to become member of the said scheme. True copy of the said rules is filed herewith as Annexure P-1 at pages (34 to 37)

1.8.1997 Subsequently there were three wage revisions in the L.I.C. in 1997, 2002 and 2007.

2001 L.I.C. felt the need for rationalization of Dearness Relief to the group of Pensioners who retired prior to 1.8.1997 in order to reduce various administrative difficulties. Accordingly a proposal to amend the Life Insurance Corporation of India (Employees) Pension Rules by upgrading pension to AICPI 1740 and 100% Dearness Relief neutralization thereof in respect of retirees prior to 1997 was put up to the Board of the Life Insurance Corporation for their approval to the proposal so that the matter would be taken up with Central Government for suitable amendment of the Life Insurance Corporation of India (Employees) Pension Rules 1995 by notification in the official Gazette

Accordingly a Note to the Board was put up for consideration and true copy is annexed hereto and marked as Annexure P-2 at (38 to 41) pages

24.11.2001 The Board of L.I.C. at its 492nd meeting by resolution approved the proposal and resolved further that is should be implemented prospectively after obtaining Government’s approval. True copy of the of the minutes of the meeting in relation to the said item is annexed herewith and marked as Annexure P-3 at pages (42 to 43)

Pursuant to the said Board’s Resolution the matter was put up to the Central Government by the LIC with a request to make appropriate amendments to the concerned Pension Rules. A true copy of the letter is annexed herewith and marked as Annexure P-4 at pages (44 to 46)

Government has not so far promulgated any such amendment to the Rules pursuant to such request of the L.I.C. While so, two Writ Petitions were filed by certain former employees of the L.I.C. in the High Court of Judicature of Rajasthan, Jaipur Bench at Jaipur in SBCWP No. 6676/1998 and 654/2007. complaining against the discrimination by LIC in grant of dearness allowance in regard to Pensionary benefits. It was inter alia contended by the Writ Petitioners (contesting Respondents) that their grievance “can come to an end” if the resolution of the Board of the LIC is implemented

12.1.2010 The learned single Judge of the High Court holding that the action by the Central Government for the amendment of the Pension Rules was not necessary and that the Resolution of the L.I.C. Board could be “implemented at the level of the Respondent Corporation itself, and that “there was no reasons to seek approval because day to day decision are not required to be sent for approval of the Central Government”, and also holding that it is only a policy decision which involve public interest and not every decision of the Board which needed approval of the Central Government. The learned judge allowed the Writ Petition on the view that the aforesaid resolution does not need approval of the Central Government and L.I.C. will be able to implement the resolution aforesaid dated 24.11.2001. A true copy of the said Judgment is annexed herein and marked as Annexure P-5 at pages (47 to 68)

Writ Appeals were taken to the Division Bench by the Petitioner LIC in Division Bench Special Appeal (Writ) No. 493 and 494/2010.

21.1.2011 The Division Bench of the High Court dismissed the Writ Appeal by their final judgment. True copy filed as Annexure P-6 at pages (69 to 74)

23.02.2011 The petitioner moved the High Court for Review of its Order by Review Petitions in D.B. Civil Review Petition No. 86/2011 and 87/2011.

Against the aforesaid Judgments, the petitioner LIC approached this Honble Court in S.L.P. Civil Nos. 16117 & 16118/2011

15.7.2011 This Hon’ble Court disposed of the said Special Leave Petitions with a request to the High Court to dispose of the Review Petitions latest within three months. This Hon’ble Court was further pleased to order the stay of contempt proceedings to continue till the disposal of the case by the High Court. True copy thereof is filed as Annexure P-7 at pages (75 to 76)

19.8.2011 The Division Bench of the High Court in its final orders dismissed the said Review Petitions by its order which is impugned herein.

1.10.2011 Hence the present Special Leave Petitions.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) No. ______of 2011 (against common final judgment and order dated 19.6.2011 of the Division Bench of the High Cout of Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Review Petition No. 86 of 2011 and D.B. Civil Review Petiion No. 87 of 2011.

L.I.C. of India and another

Versus

Krishna Murari Lal Asthana

And others

The humble petition of the

Petitioners abovenamed

MOST RESPECTRULLY SHOWETH

1. The present petitioners for Special Leave to Appeal under Article 136 of the Constitution of India, are filed against common final Judgment and Order dated 19.8.2011 of the Division Bench of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Review Petition No. 86/2011 and 87/2011 whereby the High Court dismissed the Review Petitions.

2. QUESTION OF LAW:

The following questions of law arise for consideration by this Hon’ble Court:-

I. Whether the High Court was correct in holding that the Review Petitions do not call for interference in the Review jurisdiction ?

II. Whether the High Court was correct in holding that there is no apparent error o the face of the record ?

III. Whether the High Court could have issued a mandamus for implementation of a Resolution of the Life Insurance Corporation of India seeking Government of India’s exercise of its statutory powers for amending concerned the Pension Rules before the Government of India made the amendments as requested by the Life Insurance Corporation of India?

IV. Whether the High Court could issue a mandamus directing the parties to do something which is not permitted by law, which if done will tantamount to without the authority of law ?

3. DECLARATION IN TERMS OF RULE 4(2)

The petitioners state that no other petition seeking leave to appeal has been filed by them against the impugned judgment and order.

4. DECLARATION IN TERMS OF RULE 6

The Annexure P-1 to P-7 produced along with the Special Leave Petition is true copy of the pleadings/documents which formed part of the records of the case in the Court below against whose order the leave to appeal is sought for in this petition.

5. GROUNDS

Leave to appeal is sought for on the following, amongst other grounds:

A. The High Court erred in law in rejecting the Review Petitions on the ground that there is no error apparent on the face of the records, as would merit interference by the High Court in its review jurisdiction.

B. It is submitted that various grounds before the High Court in support of the Review Petition taken individually or cumulatively would indicate the errors apparent on the face of the records which would require review by the High Court.

C. The High Court erred in ignoring the principle that when a particular thing has to be done in a particular way, it can only be done in that way and in no other way.

D. The High Court further do not take into account the legal principle that a court ought not to have compelled a party to do something which would not be permissible under the law or which if done would be in breach of prejudice of such law.

E. The High Court could not in law issue a mandamus directing the Petitioners to implement the Resolution concerned of the LIC without waiting for the amendment of the Pension Rules by the Central Government under Section 48 of the Life Insurance Corporation of India Act 1956.

F. The High Court in law could not treat the Resolution of the LIC by which Government was approached for amending the Pension Rules into a self operating decision when a mere Resolution to recommend to the rule making authority cannot ex proprio vigore have the force of law in the absence of statutory amendments to the Pension Rules.

G. The High Court ought to have seen that the entitlement of the additional pension benefit granting amendments to the concerned pension rules can in law arise only when the amendment to the Rules is made by the Central Government under the LIC Act.

H. The High Court ought to have held that Resolution of the L.I.C. is only in the nature of a request to the Central Government for necessary and appropriate action for the amendment of the Pension Rules.

I. The High Court has ignored the legal position that when law provides for doing a particular thin in a particular way, that thing has to be done in that way and not otherwise.

J. By the reason of the High Court Judgment an amendment to the Pension Rules which are to be made by the Central Government is in fact being brought into force through making a resolution of the LIC requesting the Government for such amendment as self operating, which would be contrary to the statutory provisions.

K. The High Court’s finding that this is a policy decision and so unnecessary for any amendment of the rules goes contrary to the express provisions in section 48 of the LIC Act.

L. The High Court ought to have seen that the Pension having been provided by statutory Pension Rules, LIC cannot change the Pension Rules except when there is necessary amendment to the original Pension Rules which amendments can only be made by the Central Government.

M. The High Court ought to have appreciated that the Petitioners Life Insurance Corporation of India cannot be placed in a position of acting contrary to the law which created the corporation.

N. The High Court was in error in preferring the oral submissions of the learned counsel appearing for the Union of India in preference to the express words of the statute

O. The High Court was in error in characterizing the resolution as “day to day decision not required to be sent for approval of the Central Government”. IN this connection the High Court ought to have seen that the Resolution itself had resolved to address the Central Government for necessary amendment of the Rules.

P. The High Court ought to have seen that the resolution concerned was based on a note to the Board on which alone the Board’s resolution was passed to address the Central Government for suitably amending the rules.

Q. In that situation the question of tearming the resolution as a day to day decision which could be implemented on its own in totally untenable in law.

R. The High Court with all respect ought not to have criticized the Petitioners for having approached the High Court in Writ Appeals. The High Court ignored the fact that the learned single judge issued a mandamus against the Life Insurance Corporation of India and it was therefore the LIC which alone would approach the Division Bench of the High Court. The Writ Appeals were filed in order to present before the Court the true legal position and the legal difficulties which would arise in case the L.I.C. was to act beyond, out side and contrary to the parameters of law.

S. The High Court erred in holding that “there cannot be a cut off date for existing pensioners for providing benefits.”

T. It is submitted that such a finding is untenable in law and goes counter to law laid down by this Hon’ble Court which is binding on all courts and authorities in our country.

U. The High Court with all respect has not dealt with various grounds and contentions raised by the Petitioners in their Memo of appeal and argued during the hearing.

V. The High Court ought to have seen that in the memo of appeal, as also during the course of hearing, it was contended on behalf of the Corporation that by virtue of the statutory rules framed by the Central Government under Section 48 of the Act of 1956 and the subsequent amendments made by the Central Government in the said rules, the quantum of D.R. depends upon the quantum of pension and that the quantum of pension of an employee retiring from a post is computable on the basis of pay and the pay scale applicable to the post at the time of retirement. Thus employees working on the same post would be getting different pay and pay scale depending on the date of the retirement and therefore neither their pension nor their D.R. could be identical or equal unless the Central Government was to frame new pension rules or make substantial amendments in the existing pension rules. Thus as per the Agenda Note to the Board meeting, as also the resolution passed by the Board, the matter was necessarily required to be referred to the Central Government for amendment of the Pension rules. This relevant and significant aspect of the matter has not been correctly considered and dealt with in the judgment and order dated 12.1.2010, as also in the judgment and order dated 21.1.2011. The Judgment and order dated 21.1.2011 thus suffers from manifest error apparent on the face of the record.

W. That the High Court ought to have seen that the agenda note for Board meeting as also resolution passed by the Board refer to rationalization of Dearness Allowance (D.R.). The quantum of D.R. under statutory rules depends upon the quantum of pension which in turn depends upon the pay scale applicable at the time of retirement of an employee. The judgment and order dated 12.1.2010 is completely silent so far as the quantum of pension is concerned and has merely directed that so far as D.R. is concerned, every retiring employee should get the same benefit. Such a direction cannot be complied with unless rules are framed by the Central Government for amending the existing statutory pension rules.

X. The petitioner also craves leave at the hearing to refer to and rely on the (a) various grounds argued in its Review Petitions before the High Court (b) the various submissions made in its written submissions submitted before the High Court as part and parcel of this Petition. To avoid prolixity, the same are not repeated herein verbatim.

Y. Petitioner craves leave at the hearing to add to, alter, modify, or vary any or all the aforesaid grounds of the present petition each of which have been taken in the alterative and without prejudice to each other.

6. GROUNDS FOR INTERIM RELIEF

It is submitted that, it is necessary in the interest of justice, for this Hon’ble Court to grant stay of operation of the final judgment and order of the Rajasthan High Court impugned in this Special Leave to Appeal. The balance of convenience would lie in the grant of such interim relief. In the absence of such interim relief the Petitioners would face extremely legal difficulties if the orders of the High Court are implemented which would run contrary to the express provisions of the Life Insurance Corporation Act. In such circumstances, in the absence of interim relief by this Hon’ble Court, the petitioner shall be put to great hardship and considerable loss. Moreover the pending contempt petitions (which were earlier subject to stay order issued by this Honble Court) will revive now. It will therefore be just and necessary and in the interests of justice that this Honble Court is also pleased to grant stay of the said contempt applications.

7. MAIN PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased

(a) grant special leave to appeal under Article 136 of the Constitution of India against final Judgment and Order dated 19.8.2011 of the Division Bench of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Review Petition No. 86/2011 and D.B. Civil Review Petition No. 87/2011 and

(b) ex-parte ad-interim order in terms of above be granted and the same be confirmed after notice to the respondents; and

(c) pass such other order or orders which may be deemed fit and proper in the facts and circumstances of the case.

Filed by

[A.V. Rangam]

Advocate for the Petitioner

Drawn on 14-9-2011

Filed on 1-10-2011

L.I.C. APPEALS DISMISSED

ON 21-01-2011, THE JAIPUR DIVISIONAL BENCH (JUSTICE DALIP SINGH AND JUSTICE MAHESH BHAGWATI) OF THE RAJASTHAN HIGH COURT HAS DISMISSED BOTH APPEALS ( S.A.W. 493/2010 AND 494/2010) OF L.I.C. FILED AGAINST THE JUDGMENT GIVEN BY HON'BLE JUSTICE M. N. BHANDARI IN CWP 6676/1998 AND CWP 654/2007 ON 12-01-2010 IN FAVOUR OF THE PETITIONER / APPLICANT SHRI K M L ASTHANA AND OTHERS.

FULL JUDGMENT OF DB IS GIVEN BELOW

JAIPUR DIVISIONAL BENCH JUDGMENT

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH AT JAIPUR

***

D.B. Civil Special Appeal (W) No. 493/2010

Life Insurance Corporation of India

vs

Krishna Murari Lal Asthana and ors

D.B. Civil Special Appeal (W) No. 494/2010

Life Insurance Corporation of India

Vs.

Krishna Murari Lal Asthana & Ors

***

Dated: 21.01.2011

HON’BLE MR. JUSTICE DALIP SINGH

HON’BLE MR. JUSTICE MAHESH BHAGWATI

Mr. Mahendra Singh for the appellant

Mr. N.K. Maloo )

Mr. Abhinabh Sharma) for the respondents

***

These two appeals have been preferred by the Life Insurance Corporation of India against the judgment of the learned Single Judge dated 12th January, 2010 allowing two writ petitions filed by the petitioners.

2. We may not burden the judgment with the details of the facts in as much as the directions given in the judgment by the learned Single Judge are as follows:

“In the facts and circumstances of the case, I am of the view that resolution passed by the Board of LIC does not need approval of the Central Government thus the Corporation may give effect to its resolution dated 24.11.2001 to avoid discrimination amongst existing pensioners.

In light of the discussion made above, both the writ petitioners are allowed. The Respondent Corporation is directed to take a decision for implementation of the resolution dated 24.11.2001 passed by the Board. The respondent Corporation cannot provide different criteria for grant of dearness allowance to the existing pensioners based on cut off date i.e. 31.7.1997. The benefit arising out of the directions above would, however,, be considered by the respondent Corporation so that every retired employee may get the same benefit. Costs made easy.”

3. In coming to the aforesaid conclusion and giving the aforesaid directions, the learned Single Judge has taken note of the fact that the LIC appellant before us had itself passed a resolution in the meeting held on 24.11.2001 for removing the aforesaid discrimination, so far as the grant of dearness allowance is concerned, the learned Single Judge inquired from the learned counsel for the Union of India appearing in the writ petitions, whether on the plea of the appellant LIC before the learned Single Judge that the aforesaid resolution would require approval of the Central Government. Faced with the above, as has been incorporated by the learned Single Judge in the judgment, learned counsel appearing for the Union of India submitted that the resolution dated 24.11.2001 is pending decision before the Government of India. But the LIC was otherwise free to take its own decision. Based upon the aforesaid submissions of the learned counsel for the Union of India, the learned Single Judge concluded – “Thus, in these circumstances and as per the provisions of Act, there was no need to send the Board’s resolution for its approval by he Government of India.” The learned Single Judge further dealing with the aforesaid aspect in the impugned judgment after considering the scope of section 21 of the LIC Act came to the conclusion which reads as follows:

“Thus, there was no reason to seek approval because day-to-day decisions are not required to be sent for approval of the Central Government. The law, in this regard, is settled in view of various judgments cited by learned counsel for the petitioners and has not otherwise been debated by learned counsel for the respondent corporation. Even learned counsel for Union of India had accepted the aforesaid proposition and submitted that it is only a policy decision, that too, involving public interest and not every decision of Board, which needs approval by the Central Government. It is otherwise not made clear as to what is the element of public interest involved herein, if the resolution of Board is implemented. In fact, implementation of the Board’s resolution would take away discriminatory treatment amongst he pensioner’s apart from keeping the LIC away from the administrative inconvenience.” The learned Single Judge, therefore, further came to the conclusion that “there cannot be a cut off date for existing pensioners for providing benefits, but further fact is that to cure the aforesaid mistake, the Board’s resolution should have been given effect to, which will otherwise redress the entire grievance of the petitioners”.

4. Thus, we find from the judgment of the learned Single Judge that the Government of India never contested so far as the resolution dated 24.11.2001 of the Board of the appellant LIC or the merits and the contents thereof before the learned Single Judge or its competent to pass such a resolution or implement the same so as to remove the discrimination between retired employees for payment of D.A.

5. The learned counsel for LIC Mr. Mahendra Singh contended, taking us through the provisions of the Act and the Rules under Section 48 and 49, that the rules with regard to the conditions of service of the employees could only be framed by the Central Government and could be implemented only after being notified in the official gazette.

6. We are of the view that whatever grievance with regard to the implementation of the Board’s resolution dated 24.11.2001 is concerned, the same can be raised by the Union of India who has chosen not to file any appeal in the matter and this can easily be considered as an approval of the said resolution of he Board dated 24.11.2001 which was allegedly pending for nine years. The Board of LIC, who is the appellant before us against the judgment of the learned Single Judge, had itself taken a decision to remove the disparities and the discrimination with regard to the payment of Dearness Allowance and pension to the retired employees under its resolution of the Board dt. 24.11.2001, which was in public interest. It could not and should not have filed the present appeal against the judgment of the learned Single Judge as the learned Single Judge has provided an umbrella to the appellant for the implementation of the decision of the Board dt. 24.11.2001 on the categorical statement made by the learned counsel appearing on behalf of the Union of India and not assailed in appeal by the Union of India.

7. In the light of the submissions made by the learned counsel for the Union of India before the learned Single Judge, we find that these appeals filed by the L.I.C. of India have no merit and the same stand dismissed.

Sd. Sd.

(MAHESH BHAGWATI)J. (DALIP SIGH)J.

-----------------------------------------------------------------

THE HISTORIC JUDGEMENT OF JAIPUR HIGH COURT IS POSTED UNDER

IMPORTANT JUDGEMENTS AND COURT CASE - READ

-----------------------------------------------------------------

THE TIMES OF INDIA DT. 25-01-2011

Pay equal pension to all LIC retirees: HC

TNN, Jan 25, 2011, 6.05am IST

JAIPUR: The Rajasthan High Court has come down heavily on the inaction of the Life Insurance Corporation of India (LIC) for not adhering to

its board resolution to pay equal pension to all the retirees across the country irrespective of their date of retirement. The court verdict is bound

to affect thousands of retired personnel of LIC in the country.

A division bench comprising Justice Dalip Singh and Justice Mahesh Bhagwati directed the LIC to give effect to its board decision dated

November 24, 2001 to revise the pension and dearness allowance ( DA) payable to its retired employees corresponding to the successive

revisions of the pay scales that took place in 1986, 1993, 1997, 2002 and 2007 respectively.

Presently, the retired employees of LIC are drawing pension based on the last pay which was payable to them at the time of their retirement

and the same were never revised creating different classes of employees based on their date of retirement. This was challenged by Krishan

Murarilal Asthana, general secretary of Retired Insurance Employees' Association of LIC. The LIC board, infact, took the decision to do away

the disparity among pensioners but did not implement the same on the ground that the ministry of finance has not given its approval.

Disposing off the writ petition filed by Asthana, a single judge bench of Justice Munishwar Nath Bhandari in its order dated January 12, 2010

had asked LIC to take immediate steps to implement the resolution of LIC board and held, "In the present matter, there was no reason to seek

approval of the Central government. The law in this regard is settled and even counsel for union of India had accepted that it is only a policy

decision, that too, involving public interest and not every decision of the board, which needs approval by the central government." Feeling

aggrieved of this order, the LIC filed an appeal before the division bench.

The division bench took a serious note of the conduct of LIC in not adhering to its board resolution on one or the other account. Justice Dalip

Singh observed, "The LIC is making an eyewash by not falling in line with its own board decision and it is an extreme ridiculous situation that

the corporation itself has filed an appeal now saying that the order of the single judge is not tenable whereas the LIC still maintains that the

board resolution has not been rescinded and the corporation is not challenging its own board's resolution."

"LIC is making a sheer misuse of the judicial system by filing frivolous appeal and trying to dislodge the retired pensioners from their valid

right merely on the ground that the resolution was never approved by the ministry of finance. Such a ground is not maintainable when the

Government of India has never filed an appeal against the order of single judge as also the LIC is an autonomous statutory body which need

not depend on the government for its day-to-day functioning. Hence the appeal is not maintainable," observed Justice Mahesh Bhagwati.


INDIAN EXPRESS - CHENNAI - 25-01-2011

PAY EQUAL PENSION TO ALL THE LIC RETIREES: HC

The Rajasthan High court has come down heavily on the "inaction" of the Life Insurance Corporation of India (LIC) for not adhering to its Board resolution to pay equal pension to all the retirees across the country irrespective of their date of retirement. The Division Bench of Justice Dalip Singh and Mahesh Bagavathi directed LIC to give effect to its Board decision dated November 24 2001 to revise the pension and dearness allowance(DA) payable to its retired employees corresponding to the successive revisions of the pay scales that took place in 1986,1993,1997,2002 and 2007 respectively.

Thursday, May 20, 2010

PENSION LETTER ASTHANA 20 5 2010

May 20, 2010

The Sr. Divisional Manager,
L.I.C. of India,
Divisional Office-I,
Bhawani Singh Road,
Jaipur-302005

Dear Sir,

Sub:   Revision of Pensions
                             ***

          It is submitted for your ready reference that S.B. Civil Writ Petition No. 654 of 2007 entitled Krishna Murari Lal Asthana and others vs. Life Insurance Corporation of India and others, and S.B. Civil Writ Petition No. 6676 of 1998 entitled Krishna Murari Lal Asthana vs. Union of India and another wee pending before the Hon’ble Rajasthan High Court on the subjects of revision of pensions and payment of Dearness Relief on Pensions.  The Hon’ble Rajasthan High Court, Jaipur Bench, Jaipur has been kind enough to allow these writ petitions vide its judgment dated 12/1/2010. A copy of the judgment as downloaded from the website of the Hon’ble High Court has already been submitted by Retired Insurance Employees Association. The judgment is self-explanatory. 

          It is therefore requested that the compliance of the judgment may be made and the pensions of all the retirees may be directed to be updated in terms of the judgment and arrears of the difference of pension on account of rate of DR and revision of pensions be also directed to be paid from the date of retirement in terms of the Board’s Resolution dated 24/11/2001 at an early date and in any case within a period of one month from receipt of this request..

          It is further requested that since the Dearness Relief has been directed to be paid as in service employees, whose dearness allowance has been revised upward from 1st May, 2010, the same may be directed to be paid at the earliest.

          Kindly acknowledge,

Yours faithfully,



(K.M.L. Asthana)
B-8, Shanti Nagar,
Ajmer Road,
Jaipur-302006




No comments:

Post a Comment

Post a Comment