__ഷെട്ടി കമ്മീഷന് റിപ്പോര്ട്ട് 9
___ഷെട്ടി കമ്മീഷന് റിപ്പോര്ട്ട്പാര്ട്ട് മുഴുവനും വായിക്കാന് വലതുവശം പോസ്റ്റ് ടൈറ്റിലില് പോയി ലിങ്കില് ക്ലിക്ക് ചെയ്യുക _________________________________________________________
11. See the Chapter "The Trial Judge is Really 'On Trial' ".
of
cases for compulsory retirement under the relevant Service Rules should
be independently taken up by the High Court, and it should not be
linked with the consideration for giving the benefit of service from 58
to 60 years. Therein, we have emphasised and also in our "Preface" to
this Report that the cases of Judicial Officers must be periodically
reviewed for compulsory retirement once in every five years, that is, at
about 50, 55 and 60 years under the respective Service Rules made for
the purpose. Such a review must be made by a Committee of Judges of the
High Court headed by the Chief Justice. Those who come clean from such
review should only be allowed to continue in service till they attain
the age of superannuation.
21.40 We have also recommended to delete
the Rules made by the High Courts incorporating the directions of the
Supreme Court in the Review Judgement in the ALL INDIA JUDGES'
ASSOCIATION CASE for compulsory retirement at the age of 58 years.
Instead, we have suggested to all High Courts to make a rule specifying
only the superannuation age without any condition. We have indicated
that once such a rule is made, the said directions of the Supreme Court
need not be followed for review of cases of Judicial Officers as
observed by the Supreme Court in RAJAT BARAN ROY AND OTHERS v. STATE OF
WEST BENGAL AND OTHERS12.
21.41 We may now proceed to consider the
contentions advanced for upward revision of the retirement age of our
Judicial Officers.
21.42 As earlier stated, the All India Judges
Association has pleaded for uniformity in the retirement age for the
Judges of the Supreme Court, Judges of the High Court and Judicial
Officers. They want that the age of retirement of Judicial Officers
should be raised to 65 years.
______________________________________________________________
12. (1999) 4 SCC 235, at 240.
21.43
We consider that the demand made by the All India Judges' Association
is not sound and cannot be accepted. Indeed, it overlooks the intention
of the makers of the Constitution.
21.44 Article 124 of the
Constitution provides that the Judge of the Supreme Court shall hold
office until he attains the age of 65 years.
21.45 Article 217 of the
Constitution provides that every Judge of a High Court shall hold the
office until he attains the age of 62 years (amended under the 16th
Amendment to the Constitution. Prior to that, it was 60 years).
21.46
The Makers of the Constitution have deliberately kept different age of
retirement for the High Court Judges and the Supreme Court Judges, in
spite of the demand in the Constituent Assembly to fix uniform
retirement age for the Judges of High Court and the Judges of Supreme
Court. While rejecting that demand, Dr. Ambedkar gave the following
reasons :
"It is essential that a difference of 3 to 5 years should
be maintained between the retirement age of High Court Judges and that
of Supreme Court Judges."
Dr. Ambedkar went on to state13 :
"The
honour and prestige associated with a seat on the Supreme Court Bench
have their limits as an attraction and it is the prospect of continuing
in service for a period of five more years that chiefly attracts him to
the new office. As this attraction would disappear if the age of
superannuation for High Court judges
______________________________________________________________
13. The Framing of India's Constitution by B. Shiva Rao, Select Documents, Vol. IV p.198-199.
also
is raised to 65, judges for the Supreme Court will have to be selected
from among junior and comparatively inexperienced judges of the High
Court, and a Court thus manned would hardly command the respect and
confidence which the Supreme Court in the land ought to inspire. On a
careful balancing of these considerations, we have come to the unanimous
conclusion that - (i) it is essential that a difference of 3 to 5 years
should be maintained between the retiring age of High Court Judges and
that of Supreme Court Judges; (ii) age limit for retirement should be
raised to 65 for High Court Judges and to 68 years for Supreme Court
Judges;"
21.47 Subsequently, it appears that there were more
criticisms for fixing the retirement age at 60 for the High Court
Judges, as against the retirement age of 65 years for Supreme Court
Judges. This has resulted in the Sixteenth Amendment to the Constitution
by fixing the retirement age of High Court Judges at 62 years. Mr. M.V.
Pylee14 narrates this development in the following manner :
"Both in
the Constituent Assembly and outside, during the time of the framing of
the Constitution and after, the provisions dealing with the conditions
of service of judges of the High Court were subjected to three major
criticisms. The most important of these related to the fixation of sixty
years as the retiring age as was then provided. It was pointed out that
when the age of retirement of the judges of the Supreme Court was fixed
at sixty-five years, there was little justification for fixing that of
the High Court
____________________________________________________________
14. Constitutional Government in India by M.V. Pylee, Second Revised Edition 1965, P.553.
judges
at sixty. There is hardly any reason to suppose that the judges of the
Supreme Court will do better after sixty than the judges of the High
Court. There is no fundamental difference between the types of work of
the Supreme Court and the High Court, nor in the conditions under which
the judges work. It may be that a 'brilliant or sound' judge of the High
Court who is physically fit has the opportunity to be appointed to the
Supreme Court and thereby continue in service until he completes
sixty-five years of age. But vacancies on the Supreme Bench are not of
frequent occurrence. In comparison with the number of judges who retire
every year from the High Courts, possible vacancies in the Supreme Court
during the same period are negligible. Fixation of sixty as the
retiring age may also prevent the top men in the Bar who have crossed
the age of fifty years, from accepting appointments as judges of High
Courts. These criticisms have substantially gone home as a result of
which the sixteenth Amendment of the Constitution provided the retiring
age to be raised to sixty-two years."
21.48 Having regard to the
differential age of retirement for the Supreme Court Judges and the High
Court Judges, which had the Constitutional sanction, we cannot accede
to the contention that the age of retirement of the Judges of all Courts
should be uniform.
21.49 However, there is a compelling reason for raising the retirement age of Judicial Officers to 62 years.
21.50
It is now well-settled that Judicial Service will include also the
hierarchy of specialised Civil Courts such as Labour Courts and
Industrial Courts.
21.51 In STATE OF MAHARASHTRA v. LABOUR
LAW PRACTITIONERS' ASSOCIATION AND OTHERS15, the Supreme Court while
explaining the scope of the expression 'District Judge' as defined under
Article 236(a) and the expression 'Judicial Service' as defined under
Article 236(b) of the Constitution, has observed:
"Para 9. Article
236(a) defines the expression "district judge" as including judge of a
city civil court, additional district judge, joint district judge,
assistant district judge, chief judge of a small cause court, chief
presidency magistrate, sessions judge, additional sessions judge and
assistant sessions judge. This is an extensive definition and does not
cover every category of a district judge.
xxx xxx xxx xxx
Para 10.
The District Judge, therefore covers a judge of any Principal Civil
Court of Original Jurisdiction. With an increase in the numbers of
specialised courts and tribunals which are being set up to deal with
specific kinds of civil litigation which would otherwise have been dealt
with by the ordinary civil courts, we now have a number of specialised
courts exercising different categories of civil original jurisdiction.
It can be specialised civil original jurisdiction pertaining to Labour
and Industrial disputes specified in the relevant Acts as in the case of
Labour and Industrial Courts, or it could be pertaining to recovery of
bank debts and so on. The structure of civil courts exercising original
jurisdiction is no longer monolithic. The judge of the
______________________________________________________________
15. AIR 1998 SC 1233 AT 1236 TO 1239.
Principal
Civil Court heading the concerned set of courts under him and
exercising that jurisdiction can also fall in the category of a
"District Judge": by whatever name called . . . . . . . . . . .
xxx xxx xxx
xxx xxx xxx
Para 17. xxx xxx xxx
When the service is exclusively judicial, there is no reason to exclude such judicial service from that term under Article 236.
xxx xxx xxx
Para 18. xxx xxx xxx
xxx xxx xxx
Going
by these tests laid down as to what constitutes judicial service under
Article 236 of the Constitution, the Labour Court judges and the judges
of the Industrial Court can be held to belong to judicial service. The
hierarchy contemplated in the case of Labour Court judges is the
hierarchy of Labour Court Judges and Industrial Court Judges with the
Industrial Court judges holding the superior position of District
Judges. The Labour Courts have also been held as subject to the High
Court's power of superintendence under Article 227."
21.52 It may be
stated that on these principles, even Member of the District Forum
constituted under the Consumer Protection Act 1986, the Member of the
Debt Recovery Tribunal constituted under the Debts Due to Banks and
Financial Institutions Act, 1993 and the Judge of the Family Court
constituted under the Family Courts Act, 1984, would also fall into the
Judicial Service as defined under Article 236(b) of the Constitution,
with the District Judge as the head of that service. But these posts
have different age of retirement as seen herein below:
CONSUMER PROTECTION ACT, 1986:
Section 10(2) provides:
Every
member of the District Forum shall hold the office for a term of five
years or up to the age of 65 years whichever is earlier and shall not be
eligible for reappointment."
THE ADMINISTRATIVE TRIBUNALS ACT, 1985:
Section 8(a) and (b) provides:
" In case of Chairman or Vice-Chairman, the age of 65 years and in the case of any other member, the age of 62 years."
RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993 :
Section 6 provides :
"
The presiding officer of a Tribunal shall hold office for a term of
five years from the date on which he enters upon his office or until he
attains the age of 62 years whichever is earlier."
Section 11 provides :
"
The presiding officer of an Appellate Tribunal shall hold the office
for a term of five years from the date on which he enters upon his
office or until he attains the age of 65 years whichever is earlier."
THE FAMILY COURT ACT, 1984 :
Section 4(5) provides :
"
No person shall be appointed as or hold the office of, a judge of a
Family Court, after he has attained the age of sixty two years."
THE INDUSTRIAL DISPUTES ACT, 1947:
Section 7-C provides :
"Disqualifications for the presiding Officers of Labour Courts, Tribunals and National Tribunals, -
No
person shall be appointed to, or continue in, the office of the
Presiding Officer of a Labour Court, Tribunal or National Tribunal, if -
(a) he is not an independent person; or
(b) he has attained the age of sixty-five years."
21.53
For convenient reference, we have given below the Table containing the
Name of the Statute, Name of Post with the age of retirement:
Sl.No.
Name of the Statute
Name of Post
Age of retirement
1.
The Consumer Protection Act, 1986
Member, Dist. Forum
Upto 65 years
2.
The Administrative Tribunal Act, 1985
Member
Upto 62 years
3.
The Recovery of Debts Due to Banks & Financial Institutions Act, 1993
Presiding Officer
Upto 62 years
4.
The Family Courts Act, 1984
Judge, Family Court
Upto 62 years
5.
The Industrial Disputes Act, 1947
1.Labour Court
2. Industrial Tribunal
Upto 65 years
21.54
All these statutory posts fall into the expression "Judicial Service"
as defined under Article236(b) of the Constitution, to which our
Judicial Officers also belong.
21.55 It is well-settled that different posts which are falling into the same service cannot have different age of retirement.
21.56
We cannot, however, as earlier stated, fix the age of retirement of our
Judicial Officers uniformly at 65. The High Court Judges retire at 62
years and the Supreme Court Judges retire at 65 years. There is thus no
scope to place the Judicial Officers between 62 and 65 years. Besides,
any attempt of the Judicial Officers to overstep the limit of 62 years
may be considered as trespass into the realm preserved to maintain the
relativity of the retirement age of the Judges of the High Court and the
Supreme Court. Such an attempt has to be ruled out in the first place.
21.57
What remains to be considered is only a narrow strip between 60 and 62
years. The Judicial Officers are already having 60 years as retirement
age. The next step could only be to 62 years. Fortunately, there is no
Constitutional inhibition for fixing the age of retirement of Judicial
Officers at 62 years on par with that of High Court Judges.
21.58 We
do not, however, mean that the High Court Judges should rest at 62
years. We would welcome if the age of retirement of High Court Judges is
revised to 65 years and correspondingly, the age of retirement of
Supreme Court Judges is raised to 68 or 70 years.
OUR RECOMMENDATION :
21.59
After considering various aspects of the matter, we recommend an
increase in the age of retirement for all Judicial Officers from 60 to
62 years for the following reasons:
(i) From the statistical data
collected by the IAMR to which we had made reference earlier, the
longevity of our people has considerably increased.
(ii) From
the Report of IAMR, it will be seen that in a number of countries,
especially in European region, increase in the retirement age is round
the corner. The change is taking place due to demographic causes,
especially the phenomenon of ageing population and to reverse / arrest
the trend of early retirement.
(iii) From Annexure-I, which is a copy
of the Table prepared by IAMR, it will be seen that the age of
superannuation in public services in some of the foreign countries is
upto 65 years.
(iv) Recently, the Central Government while accepting
the recommendation of the V Central Pay Commission, has raised the age
of superannuation of the Central Government employees upto 60 years.
This has been followed by all the Administrations of Union Territories.
(v)
The V Central Pay Commission has also observed that the superannuation
of Central Government employees has acted in the past as a Benchmark
against which the age of superannuation of other categories of
employees, Judicial Officers, Teachers, Constitutional Authorities etc.,
were fixed. They have suggested that their recommendation will lead to
suitable readjustments in these Services in order to maintain the
present relativities.
(vi) There is a tendency on the part of
Judicial Officers after retiring at 60 years to seek re-employment in
the Corporation and Statutory Boards as Law Officers. There, they will
generally continue for a fixed term of five years.
(vii) Most of
the Judicial Officers do not get full pension for want of qualifying
service of 33 years, since they join the judiciary at later age in view
of the additional qualification and experience prescribed for judicial
recruitment.
(viii) The Judicial Officers, as the age advances,
become more mature and their services could be better utilised by
continuing them in service, instead of driving them to other avocations.
(ix)
Unlike in the public services, there is no question of impact on
employment situation if the age of retirement of Judicial Officers is
raised to 62 years, since they are recruited from the members of the
Bar. There are hardly 12,000 Judicial Officers in the whole country who
would be given the benefit of upward revision by two years of service.
xxx xxx xxx
ANNEXURE
AGE OF SUPERANNUATION IN PUBLIC SERVICES IN FOREIGN COUNTRIES
Sl.No.
Name of the Country
Age of retirement
1
2
3
1.
AUSTRIA
65 yrs and 10 yrs of service. Full pension 35 yrs of service (early pension at 60 yrs and 10 yrs of service)
2.
BAHRAIN
Men 60 yrs
15 yrs of service
Women 55 yrs
Full pension 40 yrs of service
3.
BANGLADESH
57 years minimum pension of 10 yrs of service
60% pension after 25 yrs
70% (full pension at 57 yrs)
4.
BELGIUM
65 yrs and 20 yrs of service
early retirement 60 yrs and 5 yrs of service
5
BENIN
55 years
15 yrs of service
50 yrs for Police
6
MYNAMAR (BURMA)
60 yrs and 10 yrs of service
Full pension 42 yrs of service
7
BURUNDI
Men 60 yrs
30 yrs of service
Women 55 yrs
8
CANADA
60 yrs 5 yrs of service
early retirement 55yrs and
30 years of service
Full pension 35 yrs of service
9
COLOMBIA
Men 55 yrs
20 yrs of service
Women 50 yrs
10
IVORY COASTE
55 yrs or 60 yrs
(Executive or 65
yrs High Ranking
Magistrate
15 yrs of service
Full pension 40 yrs of service
11
CYPRUS
60 yrs of age, for
some categories
10 yrs of service
55 yrs
12
ELSALVADOR
60 yrs and 15 yrs of service
Full pension 40 yrs of service
13
FINLAND
65 yrs
(for some categories between
55 and 63 yrs)
Early retirement 63 yrs
Full pension 63 yrs of age and
30 yrs of service
14
FRANCE
65 years
Early retirement 60 yrs
(55 yrs for Public
servant in foreign
country)
15 yrs of
service
15
GAVON
55 yrs and 15 yrs of service
No age, if 30 yrs of service
16
F.R.G. (Federal
65 yrs for some
categories
Qualifying service
of 5 yrs
60 yrs
Early retirement 62 years
No age requirement if 35 yrs of service
17
GREECE
65 yrs and 15 yrs of service
Full pension 56 yrs and 35 yrs of service
18
INDONESIA
55 years
Early retirement 50 yrs & 20 yrs of service
Full pension 30 yrs of service
19
IRELAND
65 yrs of age
Full pension 40 yrs of service
20
ITALY
65 yrs of age and 20 yrs of service
(Lower age for Army)
Early retirement 40 yrs of service
21
JAPAN
65 yrs of age and 25 yrs of service
22
LUXEMBOURG
65 yrs
10 yrs of service
55 yrs of Police
Early retirement 60 yrs and 30 yrs of service
23
MADAGASCAR
55 yrs/60yrs and 15 yrs of service
Early retirement 45 yrs &
15 yrs of service
No age requirement if 25 yrs of service
24
MALAYSIA
55 years
Early retirement 50 for Men
10 yrs of service
45 for Women
25
MEXICO
55 yrs and 15 yrs of service
Full pension 30 yrs of service
26
MOROCCO
60 years
65 years for teacher
66 years for Magistrate
Early retirement 21 yrs of service
27
NEPAL
20 yrs of service
28
NETHERLANDS
65 years
29
NIGERIA
60 yrs of age and
15 yrs of service
30
NORWAY
Certain categories 70 yrs -
60 to 68 yrs
(3 years of service)
Early retirement 67 yrs with 30 yrs of service
Full pension 30 yrs of service
31
PAKISTAN
60 yrs and 10 yrs of service
Early retirement 25 yrs
Full pension 30 yrs of service
32
PHILIPPINES
60 yrs and 15 yrs of service
33
PORTUGAL
70 yrs and 5 yrs of service
Early retirement 60 yrs &
36 yrs of service or on completion of 30 yrs
34
SENEGAL
55 yrs and 15 yrs of service
35
SPAIN
65 yrs and 9 yrs of service
Early retirement 60 yrs & 30 yrs of service
36
SRI LANKA
55 yrs and 10 yrs of service
37
SURINAME
60 yrs of age
Early retirement 55 yrs and 35 yrs of service
38
SWEDEN
65 years of age
39
SWITZERLAND
62 yrs and 40 yrs of service
Early retirement. Women 60 yrs and 35 yrs of service
40
TOGO
55 yrs and 15 yrs of service
Full pension 40 yrs of service
41
TRINIDAD & TOBAGO
55 yrs and 10 yrs of service
42
TUNISIA
60 yrs
15 yrs of service
65 yrs for Managers
55 yrs for Police / Prison or workers performing difficult or non-healthy work -
55 yrs and 35 yrs of service
43
TURKEY
65 yrs and 15 yrs of service
Full pension 30 yrs of service
44
UNITED KINGDOM
60 to 65 yrs and 5 yrs of service
45
UNITED STATES OF AMERICA
62 yrs of age and 5 yrs of service or 60 yrs and 20 yrs of service or 55 yrs of age
and 30 yrs of service
46
VENEZUELA
60 yrs and 25 yrs of service
No age after 35 yrs of service
47
ZIMBABWE
56 to 65 yrs of age
48
MOURITIUES
60 years
49
ISREAL
65 years
50
USSR (Former)
60 years
51
POLAND
65 years
Sources: 1. ILO, Joint Committee on the Public Service
Report III, Fourth Session, Geneva, 1988.
2. Averting the Old Age Crisis, World Bank, 1994.
22. RETIREMENT BENEFITS
22.1
The benefits available to Civilian employees are pension, gratuity,
leave encashment, commutation of pension and family pension.
22.2 At
the outset, we may point out that the pension is not a gratis or bounty
payable on the sweet will and pleasure of the employer. It is the right
of the employee to get pension and it is a valuable right vesting in the
employee.
22.3 In DEOKINANDAN PRASAD v. STATE OF BIHAR1, the Supreme Court observed:
"
The grant of pension does not depend upon an order being passed by the
authorities to that effect. It may be that for the purposes of
quantifying the amount having regard to the period of service and other
allied matters, it may be necessary for the authorities to pass an order
to that effect, but the right to receive pension flows to the officer
employee not because of the said order but by virtue of the Rules."
It was further held:
"
Pension is not a bounty payable on the sweet will and pleasure of the
Government and that on the other hand, the right to pension is a
valuable right vesting in a Government Servant."
22.4 Pension is thus a valuable right of an employee.
22.5 The Central Government employees are given such benefits in the following terms:
1. AIR 1971 SC 1409.
i) Pension :
The
amount of pension is related to the length of qualifying service
rendered by the employee and average emoluments drawn by him during 10
months immediately preceding the date of retirement. Full pension is
admissible to an employee who retires after completing the qualifying
years of service of not less than 33 years and the amount of pension is
determined at 50% of the average emoluments subject to a maximum of 50%
of the highest pay in the Central Government i.e. Rs.30,000/-.
22.6
Proportionate pension is admissible where an employee retires before
completing 33 years of qualifying service but after completing 10 years
of service. The amount of pension will be proportionate to the amount of
pension admissible for qualifying service of 33 years and is subject to
a minimum of Rs.1275/- per month.
ii) Death-cum-Retirement Gratuity (DCRG) :
DCRG
is admissible to permanent Government servant on his retirement or
payable to his family in the event of his death while in service which
have been dissected by the V Central Pay Commission as:
a) Retirement Gratuity; and
b) Death Gratuity
a) Retirement Gratuity :
It
is admissible to permanent employees who retire after completion of 5
years' of qualifying service at the rate of 'one-fourth' of emoluments
for each completed six-monthly period of qualifying service subject to a
maximum of 16½ times 'the emoluments' or Rs.3.5 lakhs (w.e.f.
1.1.1996), whichever is less.
b) Death Gratuity :
In the
event of death in harness (while in service), the Death Gratuity shall
be payable to his family or nominee(s) at the following rates:
Length of Qualifying Service
Rate of Gratuity
i)
Less than 1 year
2 times of emoluments
ii)
One year or more but less than
5 years
6 times of emoluments
iii)
5 years or more but less than 5 years
12 times of emoluments
iv)
20 years or more
Half
month's emolument for every six-monthly period of qualifying service
subject to a maximum of 33 times of emoluments limited to Rs.3.5 lakhs.
The
Death Gratuity in the above scale is admissible irrespective of whether
the deceased Government servant was permanent, temporary or
quasi-permanent.
iii) Leave Encashment :
Leave Salary for the
amount of Earned Leave at credit subject to a maximum of 300 days plus
Dearness Allowance appropriate to such leave salary is admissible, but
will not include House Rent Allowance, City Compensatory Allowance and
Interim Relief allowed at the time of retirement or death in service.
iv) Commutation of Pension :
The
popular conception of commutation is the sale of pension for a lump sum
amount. The Central Government employee upon retirement is allowed to
give up the right of a portion of pension, not exceeding 40% of the
basic pension and to get a lump sum amount in lieu thereof.
The
commuted value of pension is calculated with reference to a commutation
table which, inter alia, takes into account the longevity of pensioners
and the interest rate. The table indicates the commuted value of pension
expressed as number of years' purchase with reference to the age of
pensioner on his next birth day. The Commutation value of pension goes
on decreasing as the age of pensioner increases. Normally the commuted
portion of pension will be restored after 15 years from the date of
retirement in case of simultaneous commutation, otherwise after 15 years
from the date of commutation.
v) Family Pension :
Family Pension is admissible to the family of the deceased Government Servant when he dies:
a) after completion of not less than one year of continuous service;
b) after retirement from service and was in receipt of pension on the date of death.
At
present, Family Pension is available for families of Civilian
employees, who die while in service or after retirement. Family Pension
is payable to the widow or widower for life or till remarriage and to
children upto the age of 25 years.
Normal Rates of Family Pension :
22.6
Family Pension is calculated on the basis of basic pay last drawn on
the date of retirement / death and is admissible at uniform rate of 30%
of pay last drawn in all cases (effective from 1-1-1996) subject to a
minimum of Rs.1275/- and a maximum of Rs.9000/- per month.
22.7 Enhanced Family Pension in case of dying in harness :
(i)
When a Government Servant after rendering not less than 7 years of
continuous service dies in harness, his family becomes entitled to
Family Pension at enhanced rate of double the ordinary pension or 50% of
the last pay drawn, whichever is less.
(ii) The rate of enhanced
Family Pension shall be 50% of pay last drawn or double the ordinary
family pension or the pension authorised on retirement, whichever is the
least.
22.8 The enhanced Family Pension in both the cases shall be
payable for a period of 7 years or upto the date on which the Government
Servant would have attained the age of 65 years had he survived,
whichever is less, and the higher rate is not admissible if a pensioner
dies after attaining 65 years of age.
22.9 Most of the State
Governments are following the Central Government pattern to their
employees regarding the aforesaid matters. Some States, however, have
prescribed the maximum and minimum pension. This maximum and minimum
pension varies from State to State, since the pay scales are pegged at
varying index levels and also the minimum and maximum of the same pay
scales are allowed to the employees.
22.10 In order to ascertain the correct picture on these aspects, the Commission circulated the following questions:
Q.No.48.2.
What is the maximum pension allowed to Judicial Officers in your State
and what is the qualifying service required for it? Have you got any
alternate proposal which is consistent with the general policy of the
State?
Q.No.48.3. How much pension is allowed to be commuted? At
present, commuted pension gets restored after completion of 15 years
which period is said to have been fixed on scientific basis. How do you
then justify the reduction of that period?
Q.No.48.4. What are the
rules relating to payment of terminal gratuity? What is the maximum
gratuity payable? Please furnish the relevant rules.
Q.No.48.5. What
are the rules in your State governing encashment of leave upon
retirement? How much leave is permitted to be encashed? Please furnish
the relevant rules.
Q.No.48.6. What is the rule relating to Family Pension? What is the maximum Family Pension allowed?
(Please furnish the relevant rules.)
Do you propose uniformity in the aforesaid matters in all States / UTs?
22.11
The responses received from the respondents indicate that most of the
State Governments have generally adopted Central Government pattern for
grant of pensionary benefits to their employees and the same has been
extended to Judicial Officers. The only difference between the pension
structure of the State Governments and that of the Central Government is
in the quantum of minimum pension, gratuity and terms of encashment of
leave.
22.12 As against the full pension allowed for Central
Government employees on completion of qualifying service of 33 years,
the State Governments like Tamil Nadu and Kerala allow full pension to
their employees on completion of qualifying service of 30 years.
22.13
In most of the States, pension is calculated with reference to the
average emoluments drawn during the 10 months preceding superannuation.
But in States like Karnataka, Orissa, Tamil Nadu and West Bengal, last
pay drawn by the retiring officer forms the basis for determination of
the pension.
22.14 We have received suggestions to reduce the
qualifying years of service for full pension and also for dispensing the
present ceiling of minimum 10 years of qualifying service for minimum
pension.
22.15 For full pension, the request of the Associations is
18 ' 30 years of qualifying service. Likewise, it was suggested that the
quantum of pension from the existing 50% of the basic pay be raised to
60% , 75%. Some Associations have demanded even 100% of the last pay
drawn.
Commutation of Pension :
22.16 As seen earlier, the Central
Government allowed their employees to commute a maximum of 2rd of the
pension till recently. However, the Government after accepting the
recommendations of the V CPC has raised the level to 40% of the pension
with effect from 1.1.1996. This has been followed by the State of Sikkim
and in no other States. In all other States, 2rd of the pension is
allowed to be commuted.
22.17 We have, however, received suggestions
from the Respondents to raise the existing ceiling on commutation from
2rd to 50% of the pension.
22.18 So far as the restoration of
commuted pension is concerned, the Central Government allows such
restoration on expiry of 15 years period from the date of commutation.
Here again, almost all the States have followed this pattern, save the
States of Kerala, Madhya Pradesh and Orissa. These three States allow
the restoration of commuted pension after expiry of 12 years period. In
Punjab, the restoration of commuted pension is allowed on expiry of 12
years only to those cases where pension is commuted before attaining the
age of 59 years.
Gratuity :
22.19 The present position
with regard to gratuity is that it is paid at 3th of emoluments for each
completed six-monthly period of qualifying years of service subject to a
maximum of 16½ times of emoluments. Most of the States are also
following the Central pattern of payment of gratuity. However, the
ceiling on maximum gratuity varies from State to State. It ranges
between Rs.1 lakh to Rs.3.5 lakhs. While the ceiling on gratuity / death
gratuity has been enhanced to Rs.3.5 lakhs by Government of India with
effect from 1.1.1996 in pursuance of the recommendations of V CPC, most
of the State Governments have, however, limited the
gratuity-cash-ceiling at Rs.2.5 lakhs.
22.20 We have received the
following suggestions / requests from the High Courts and the Service
Associations with regard to payment of gratuity:
i) That it should be
calculated at the rate of half of emoluments for each completed
six-monthly period of service instead of 3th at present;
ii) That cash ceiling should be removed;
iii) That D.A. should be taken into account for computing gratuity; and
iv) That the maximum gratuity should be raised appropriately from the present 16.5 times of emoluments.
Encashment of Leave :
22.21
As seen earlier, the limit of accumulation of Earned Leave is 300 days
for Central Government employees, plus D.A. appropriate to such leave
salary. But it will not include House Rent Allowance, City Compensatory
Allowance and Interim Relief allowed at the time of retirement or death
in service.
22.22 This limit of 300 days has not been followed by the
State Governments. They have prescribed the maximum of 240 days Earned
Leave for encashment.
22.23 We understand that in the Central
Government service, Officers are not entitled to encash their Earned
Leave when they are in service, whereas in most of the States,
encashment of Earned Leave while in service is allowed. Indeed, we have
also recommended this procedure for Judicial Officers.
22.24 High
Courts and the Service Associations have suggested that encashment of
Earned Leave at the time of retirement may be enhanced to 300 days.
Family Pension :
22.25
We have earlier set out the Rules relating to Family Pension for
Central Government employees. It is, therefore, not necessary to restate
here. But the payment of Family Pension in State Governments is not
uniform. It varies from 30%, 20% and 15% depending upon the pay ranges
of the deceased. Therefore, the High Courts have suggested that it is
desirable to have uniformity in the matter of Family Pension for the
Judicial Officers throughout the country.
22.26 The Service
Associations have represented to the Commission that the existing rates
of Family Pension are grossly inadequate and it should be revised
upwards between the range of 50% to 75% of the last pay drawn.
OUR RECOMMENDATION :
22.27 We have considered all the suggestions of the Respondents.
Minimum Qualifying Service :
22.28
We do not consider that it is proper to dispense the present ceiling of
minimum 10 years of qualifying service for entitlement to pension.
Pension confers a long term benefit on a pensioner covering the entire
remaining period of his life and should, therefore, be admissible only
if he has served a minimum period of 10 years. We are, therefore, not
inclined to dispense the existing requirements of 10 years to be
eligible for minimum pension.
Eligibility to Full Pension :
22.29
As to the plea to reduce the qualifying service of 33 years for earning
full pension, it may be stated that the Judicial Officers would now
retire at the age of 60 years and they will have thus the benefit of two
more years of service than the State Government employees who retire at
58 years. In fact, in Kerala, the age of superannuation of the State
Government employees is still at 55.
22.30 Almost all the States have
followed the Central Government pattern in prescribing 33 years of
service for earning full pension. The States of Kerala and Tamil Nadu,
however, have reduced it to 30 years. The Table below gives the picture
of such requirements in all the States / UTs.
T A B L E
DETAILS OF (A) MAXIMUM PENSION, (B) QUALIFYING YEARS OF SERVICE AND (C) PORTION OF COMMUTATION
Sl.No.
State / UT
Maximum Pension (%)
Qualifying years of Service
Portion of Commutation
1
Andhra Pradesh
50
33
1/3
2
Assam
50
33
1/3
3
Bihar
33
1/3
4
Gujarat
50
33
1/3
5
Haryana
50
33
1/3
6
Himachal Pradesh
50
33
1/3
7
Jammu & Kashmir
50
33
1/3
8
Karnataka
50
33
1/3
9
Kerala
50
33
1/3
10
Madhya Pradesh
50
33
1/3
11
Maharashtra
50
33
1/3
12
Orissa
50
33
1/3
13
Punjab
50
33
1/3
14
Rajasthan
50
33
1/3
15
Sikkim
50
33
40%
16
Tamil Nadu
50
33
1/3
17
Tripura
50
33
1/3
18
Uttar Pradesh
50
33
1/3
19
West Bengal
50
33
1/3
20
Goa
50
33
1/3
21
Delhi
50
33
40%
22
Meghalaya
50
33
1/3
23
Manipur
24
Mizoram
As per Central Rules
25
Nagaland
26
Lakshadweep
27
Pondicherry
Not available
NOTE:
Commutation of pension for Central Government Civilian Employees has
been enhanced to 40% from 1/3rd w.e.f. 1-1-1996 on the recommendations
of V CPC.
22.31 We do not know the circumstances, which compelled the
State of Tamil Nadu to reduce the qualifying years of service from 33
to 30 years for earning full pension. In Kerala, we can understand that
the age of retirement is 55 and there is, therefore, every justification
for prescribing 30 years of qualifying service to get full pension.
22.32
So far as the Judicial Officers are concerned, there is no such
inhibition. Their age of superannuation has been raised to 60 years. In
view of this enhanced superannuation age, there is no reason at all to
reduce the qualifying years of service for entitlement to full pension.
22.33
We accordingly recommend that the qualifying years of service should be
33 years for earning full pension except in the States of Tamil Nadu
and Kerala.
Quantum of Pension :
22.34 There is a general demand
from the Associations of Judicial Officers for increasing the quantum of
pension from the existing 50% to 60%, 75% and even to 100%.
22.35 In our opinion, this demand is unreasonable and indeed uncalled for.
22.36
We have made significant upward revision in the pay scales of Judicial
Officers at all levels and that would in turn confer on the retiring
persons substantial benefit of enhanced pension even at the existing
rate of 50%.
22.37 It may be noted that Judges of the High Courts and the Supreme Court are allowed pension only upto 50% of the pay.
22.38
There is therefore, no justification to recommend any increase of
pension from the existing level of 50%. It may remain at 50% of the pay
only.
Calculation of Pension :
22.39 We would, however, like to say a word more on the method of calculation of the pension.
22.40
At present, pension is calculated with reference to the average
emoluments drawn during the 10 months preceding the superannuation for
the Central Government employees and also in most of the States, except
in the States of Karnataka, Orissa, Tamil Nadu and West Bengal. In these
States, as stated earlier, the last pay drawn is the only basis for
determining the pension.
22.41 The Central Government has not adopted
the principle of last pay drawn in spite of the recommendation of the V
CPC to that effect. Most of the State Governments have not accepted the
principle 'last pay drawn' and even the Central Government has not
accepted it.
22.42 We recommend that the State Rules for the
time-being in force for calculation of pension may apply to Judicial
Officers in the respective States / UTs.
22.43 We may, however, state
that determination of the pension with reference to the last pay drawn
is more practical, simple and indeed beneficial in view of the fact that
some of the Officers would have drawn their annual increments just
before retirement and there is no reason why full benefit of increment
drawn should be denied to them for the purpose of calculating the
pension.
22.44 We, therefore, recommend to all the State Governments
to follow the principle of last pay drawn, which has been adopted by the
States of Karnataka, Orissa, Tamil Nadu and West Bengal.
Commutation of Pension :
22.45
As seen from the Table earlier referred to, the Central Government has
allowed commutation upto 40% of the Pension by accepting the
recommendation of the V CPC.
22.46 But under the service conditions
of Judges of the Supreme Court and High Courts, commutation of pension
is allowed to the extent of 50% of the pension.
22.47 Since the
Judicial officers after retirement are expected to maintain a degnified
life, we consider that it is appropriate to allow them commutation upto a
maximum of 50% of the Pension.
22.48 We, accordingly, recommend that
the commutation of pension for Judicial Officers in every State / UT be
allowed upto 50% of the pension determined.
Restoration of Commuted Pension:
22.49
Restoration of the commuted portion of the pension is generally after
15 years. Even the Judges of the Supreme Court and High Courts will get
such restoration only after 15 years. That 15 years is reckoned from the
actual date of commutation. This has been arrived at after a scientific
calculation on the return to the Government on the consolidated sum
paid as Commutation Pension.
22.50 Secondly, we are allowing
commutation to the extent of 50% of the Pension. We cannot, therefore,
reduce the period for restoration of pension.
22.51 We, accordingly, recommend that restoration of commuted pension may be allowed after 15 years.
GRATUITY :
22.52
As earlier stated, the gratuity payable varies from State to State. It
ranges from Rs.1 lakh to Rs.3.5 lakhs. The Central Government, however,
has raised the gratuity to Rs.3.5 lakhs with effect from 1.1.1996. But
the States generally have not followed this principle.
22.53 The
procedure for payment of gratuity to the High Court Judges under the
Conditions of Service Act, 1954 and the Rules made thereunder is
two-fold - one applicable to the Judges who are elevated to the High
Court from the judicial service cadre and the other to Judges who are
directly recruited from the Bar. To the first category, gratuity will be
payable on the basis of the rules applicable to the Judge if he had not
been appointed as a Judge and his service as a Judge being treated as
service thereon for the purpose of calculating the gratuity. To the
second category, the rules, notification and orders for the time-being
in force with respect to the death-cum-retirement gratuity benefits
which are applicable in relation to the Officer of a Central Civil
Service Class I, would apply.
22.54 What it means to say is that for
the second category, the maximum gratuity payable would be Rs.3.5 lakhs,
whereas to the first category, it would be invariably less than Rs.3.5
lakhs depending upon the rules prevalent in each State. Of course,
option is given to the first category to opt for the other, in the event
of which, he may have certain advantage or disadvantage.
22.55
Taking all these factors into consideration, we recommend that the rules
of each State applicable to Government Servants shall govern also the
Judicial Officers in the matter of payment of gratuity.
ENCASHMENT OF LEAVE :
22.56
As elsewhere stated, the limit of accumulation of Earned Leave is 300
days for Central Government employees. But in most of the States, it is
limited to 240 days.
22.57 The Judges of the High Courts and the
Supreme Court are allowed to encash 300 days of Earned Leave. But the
same principle need not be adopted for the Subordinate Judiciary since
they have been given the privilege of encashing their Earned Leave to
the extent of 30 days once in every block period of two years when they
are in service.
22.58 In the premise, we recommend that the procedure
prescribed from time to time by the respective State Governments for
Government employees with regard to the limit of Earned Leave for
encashment would continue to operate even for Judicial Officers.
FAMILY PENSION :
22.59
As of now, the rate of family pension admissible to the members of the
Central Government employees is 30% of the pay last drawn, subject to a
minimum of Rs.1275/- and maximum of Rs.9000/- per month. Be it noted
that it is 30% of the last pay drawn.
22.60 But, the family members
of the Judges of the High Courts and the Supreme Court get only 30% of
the pension payable to them. In other words, the family pension
admissible to the members of the Judges of the High Courts and Supreme
Court is very much less than the family pension admissible to the
members of the Central Government employees.
22.61 This glaring
discrimination deserves to be removed and we trust and hope that Central
Government would soon take the necessary steps in this regard.
22.62
The Judges of the Subordinate Courts are governed by the rules
regulating the family pension framed by the respective State
Governments. It varies from 30%, 20% and 15% depending upon the pay
ranges of the deceased, subject to a minimum prescribed in each pay
range.
22.63 If the Central Government provides payment of family
pension at 30% of the last pay drawn to the family members of the Judges
of the Supreme Court and High Courts, we recommend similar benefit be
provided to the family members of the Judicial Officers in every State /
UT. Till then, we suggest that the Rules of each State governing the
payment of Family Pension to their Government Servants may continue to
apply even to the Judicial Officers.
Domestic Help Allowance :
22.64
We have seen that Judicial Officers, after retirement, stand in long
queue to pay electricity or water bills. It is indeed a pathetic scene,
if not embarrassing for themselves. It is necessary that they be paid
some amount to enable them, to employ a domestic assistant or a
part-time servant. We have recommended Rs.2500/- per month for every
serving Judicial Officer for engaging a Home Orderly of his choice. For
the retired Judicial Officer, we recommend a cash payment of Rs.1250/-
per month as 'Domestic Help Allowance', which will be paid to him upon
furnishing a certificate every month that he has engaged a servant.
WHETHER COMMUTED PENSION RETAINS THE CHARACTER OF PENSION ?
22.65
That commuted pension is no pension at all. The commutation money
stands entirely on a different footing from pension money.
22.66 For general information of our Judicial officers we may refer to two decisions of the Supreme Court.
(i) UNION OF INDIA AND ANOTHER v. WING COMMANDER, R.R. HINGORANI (RETD.)2
The
facts of the case are that the Respondent was then Squadron Leader of
Indian Air Force. He was allotted Official quarters in the Cantonment,
Delhi. While he was in occupation of the said quarters, he was
transferred from Delhi to Chandigarh and therefore the allotment of the
quarters to him stood automatically cancelled after concessional period
of two months from the date of his transfer. He, however, did not give
any intimation of his transfer to the Directorate of Estates, but
continued in the occupation of the said flat for a period of nearly
2. AIR 1987 Supreme Court 808.
5
years. The Estate Officer having come to know of the occupation asked
him to vacate the flat and pay the damages for the unauthorised
occupation. The Respondent refused to pay the damages on the ground that
he was not in unauthorised occupation. The Estate Officer initiated
proceedings under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 to recover Rs.38811.17p. as damages. The Respondent
in the meanwhile made a representation to the Central Government for
sympathetic consideration of his case. The Central Government reduced
the amount to Rs.20482.78p. on compassionate ground but deducted the
same from out of commuted pension payable to the Respondent, apparently
under Section 11 of the Pension Act, 1871.
Section 11 of the Pension
Act, inter-alia, protects from attachment, seizure or sequestration
pension or money due or to become due on account of any such pension.
Validity
of the recovery of Rs.20482.78 was questioned before the Delhi High
Court but the Delhi High Court upheld the recovery. Upon the appeal, the
Supreme Court reversed the judgment of the High Court.
The relevant portion of the judgment is set out below:
"Whether
on commutation of pension the commuted pension becomes a capital sum or
still retains the character of pension so long as it remains unpaid in
the hands of the Government, is not a new one till it was settled by the
judgment of this Court in Union of India v. Jyoti Chit Fund &
Finance3. The Court touched upon the previous judgment in this regard
including a decision in the English case, in Crowe v. Price4, it was
held that -money paid to a retired
3. (1976) 3 SCR 763: (AIR 1976 SC 1163).
4. (1889) 58 LJ QB 215.
officer
of His Majesty's force for the commutation of his pension does not
retain its character as pension so as to prevent it from being taken in
execution. On p. 217 of the Report, Coleridge, C.J. said:"
"It is
clear to me that commutation money stands on an entirely different
ground from pension money, and that if an officer commuted his pension
for a capital sum paid down, the rules which apply to pension money and
make any assignment of it void, do not apply to sum."
"Following the
dictum of Coleridge, C.J., Besley, C.J. and King J. in Municipal
Council, Salem v. B. Gururajah Rao5, held that when pension or portion
thereof is commuted, it ceases to be pension and becomes a capital sum.
The question in that case was whether the commuted portion of the
pension of a retired Subordinate Judge was income for purposes of
assessment of professional tax in a municipality. The question arose in a
different form in C. Gopalachariar v. Deep Chand Sowcar,6 and it was,
whether the commuted portion of the pension was not attachable in
execution of a decree obtained by certain creditors in view of S. 11 of
the Pensions Act. Pandurang Row, J. interpreting S. 11 of the Act was of
the opinion that not only the pension but any portion of it which is
commuted came within the provisions of the Section. He particularly
referred to the words "money due or to become due on account of pension"
appearing in S. 11 of the Act which, according to him, would
necessarily include the commuted portion of the pension. He observed
that the phrase "on account of" is a phrase
5. ILR 58 Mad 469: (AIR 1935 Mad 249).
6. AIR 1941 Mad 207
used
in ordinary parlance and is certainly not a term of art, which has
acquired a definite or precise meaning in law. According to its ordinary
commutation the phrase "on account of" means "by reason of" and he
therefore queried :"
"Now can it be said that the commuted portion of
the pension is not money due on account of the pension? Though the
pension has been commuted, still can it be said that money due by reason
of such commutation or because of such commutation, is not money due on
account of pension?"
He referred to S. 10 of the Act which provides
for the mode of commutation and is part of Chapter III which is headed
"Mode of Payment" and observed:
"In other words, the commutation of
pension is regarded as a mode of payment of pension. If so, can it be
reasonably urged that payment of the commutation amount is not payment
on account of the pension, though not of the pension itself, because
after commutation it ceases to be pension? I see no good reason why it
be deemed to be otherwise. No doubt money is due immediately under the
commutation order, but the commutation order itself is on account of a
pension which was commuted. The intention behind the provisions of S.
11, Pensions Act, is applicable to the commuted portion as well as to
the uncommuted portion of the pension and the language of S. 11 does not
appear to exclude from its protection the money that is due under a
commutation order commuting a part of the pension."
"10. In
Hassomal Sangumal v. Diaromal Laloomal,7 C.J. speaking for a Division
Bench referred to Gopalachariar's case and pointed out that it does not
lay down that once a pension has been commuted and the money paid over
to the pensioner, the exemption from attachment still continues. The
learned Chief Justice went on to say that the words "money due or to
become due" used in S. 11 must by necessary implication mean the money
that has not yet been paid to the pensioner."
"11. In Jyoti Chit
Fund's case8 the Court repelled the contention that since the civil
servant had already retired, the provident fund amount. pension and
other compulsory deposits which were in the hands of the Government and
payable to him had ceased to retain their character as such provident
fund or pension under Ss 3 and 4 of the Provident Funds Act, 1925,
Krishna Iyer, J. speaking for himself and Chandrachud, J. observed:"
"on
first principles and on precedent, we are clear in our minds that these
sums, if they are of the character set up by the Union of India, are
beyond the reach of the Court's power to attach. S.2(a) of the Provident
Funds Act has also to be read in this connection to remove possible
doubts because this definitional clause is of wide amplitude. Moreover,
S. 60(1), provisos (g) and (k), leave no doubt on the point of
non-attachability. The matter is so plain that discussion is uncalled
for:
We may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by
7. AIR 1942 Sind 19 Davis.
8. AIR 1976 SC 1183.
the
provisions we have referred to, retain their character until they reach
the hands of the employee. The reality of the protection is reduced to
illusory formality if we accept the interpretation sought."
"12. xxx xxx xxx
It
bears out the construction that the words " money due or to become due
on account of pension " occurring in S. 11 of the Pensions Act, 1871
include the commuted portion of the pension payable to an employee after
his retirement. It must accordingly be held that the Government had no
authority or power to unilaterally deduct the amount of Rs.20482.78p.
from the commuted pension payable to the respondent, contrary to S. 11
of the Pensions Act, 1871."
(ii) Des Raj Bhatnagar and another v. Union of India9
In
this case, the Petitioner was an employee of the Central Government.
After serving in the Central Government for over 29 years, he was
permanently absorbed in Food Corporation of India and consequently
retired from the Government service. On absorption in the Food
Corporation of India he was required to exercise of the following two
options :
(a) Receiving the pro rata monthly pension and death-cum-retirement gratuity as admissible under the rules; and
(b)
Receiving the pro rata gratuity and a lump sum amount in lieu of
pension worked out with reference to commutation table obtaining on the
date from which the pension was to be admissible and under the option
order.
9. (1991) 2 SCC 266.
Accordingly, the Petitioner was
sanctioned the original pension in accordance with the Central Civil
Services (Pension) Rules, 1972. Under the said Rules maximum of
one-third of the amount admissible pension could be commuted. However,
in the case of government officers including Industrial Management Pool
Officers who were opting for permanent absorption in Public Sector
Undertakings, an option was given to commute the full amount of their
original pension, for a lump sum of Rs.35,568/-.
Thereupon, the Third
Central Pay Commission made recommendations in the matter of providing
relief to government pensioners. The said Commission recommended that
irrespective of the amount of pension drawn by them, pensioners should
be given relief at the rate of 5 per cent of their pension subject to a
minimum of Rs.5 per mensem and a maximum of Rs.25 per mensem.
The
case of the Petitioner was that according to the said recommendation he
should also be given the relief similar to the other Government
Pensioners. But the Central Government has arbitrarily denied that
relief to him by passing an Office Memorandum to that effect.
The
question arose whether the petitioner who has received the lump sum by
way of commutation of the entire pension could be regarded as Central
Government Pensioner.
The Supreme Court answered the question in the negative by observing thus:
"After
getting a lump sum in lieu of entire pension, they do not fall in the
class of Central Government pensioners who got their one-third pension
commuted also fall in a different class in as much as they get two-third
pension, and after 15 years of such commutation or having attained the
age of 70 years whichever was later they became entitled to full
pension. Petitioner on the other hand was not entitled to any pension
after having received the lump sum amount in lieu of pension being
commuted and having opted to receive such amount in lump sum at the time
of entering the service in Public Sector Undertaking."
22.67 From the aforesaid decisions it becomes abundantly clear that the commuted pension cannot be regarded as pension.
* * * * *
23. PENSION STRUCTURE FOR PAST PENSIONERS
22.1 Pensioners Associations and individual pensioners have made various and varied submissions to the Commission.
I. Retired Judges’ Association (West Bengal) has made a detailed representation, inter alia, stating:
i)
To evolve a formula by which inequity is eliminated in case of future
revision of pension without limiting to the minimum of notional revised
pay or for that matter 50% of such notional pay as actual pension since
for all practical purposes the pensioners will be deprived of any
increment in such pension except at the minimum level.
ii) To grant a
lump sum of Rs.1,000/- p.m. to be credited directly to the pension
account of the retiree in the Bank towards day-to-day routine medicines
and check-up.
iii) To provide travel concession to the retired judges
once a year to travel to any place in India. Such concession should be
equivalent to 50% rebate in air or train fare in the first class for the
retiree and his dependents irrespective of their age.
This should
be taken as a special honour to a judge on his retirement and this
benefit is absolutely necessary because the retired judge is not in a
position to travel outside with his family.
II. A.P. Retired
Judicial Officers Association, Hyderabad with Sri D.V. Ramana Murthy as
its President, has submitted a memorandum to the Commission to recommend
a new Pension formula ensuring the pension of not less than 50% of the
minimum pay of the proposed new pay scales for the post irrespective of
date of retirement of the officers.
III. Sri T. Gopalakrishna Murthi,
Retired District & Sessions Judge from Hyderabad has made a written
submission to the Commission seeking several reliefs for himself and
for other retirees.
IV. Sri M. Narasimha Reddy, Chief Judge, City Small Causes Court, Hyderabad, has sought the following:
i)
Telephone facility upto 500 free calls bi-monthly should be allowed or
else the bi-monthly rent of Rs.350/- shall be borne out by the
Government.
ii) House sites shall have to be allotted for Judicial Officers for a reasonable price and loans for construction of houses; and
iii) L.T.C. once in a year within the State and L.T.C. once in two years to any place in India may be provided.
V.
Sri A.V. Koteswara Rao, Former Secretary to Government & Retired
District Judge from Andhra Pradesh in his Memorandum has emphasised
among others, the following:
i) Restoration of Commuted Pension after (9) years.
ii)
Family Pension in the event of unfortunate death of the pensioner shall
be given to his surviving wife to the extent of the entire amount of
pension without reduction beyond the period of 7 years till her demise.
VI.
Some of the Retired Judicial Officers have made several representations
urging to remove the anomaly in the existing pension structure and
fixing new rates or scales of pension.
They also seek a fixed sum of
medical expenses, telephone facility concession of 500 free calls,
travel concessions and minimum family pension etc. Further, they want
preference to be given to the pensioners/ family of the pensioners
regarding beds in Government Hospitals, with benefits to the mentally
retarded children of the pensioners. They have suggested to recommend
pioneering scheme of family security/welfare/benefit fund to the
families of the pensioners by deducting certain amount from their
pension including payment of bonus to pensioners on par with the
Government employees.
VII. Sri N. Haridas, District Judge (Rtd.) from
Thiruvananthapuram has complained against the attitude of the State
Government of Kerala ordering that the Pension arrears and other
retirement benefits due to the retiring persons are to be paid in eight
‘half yearly’ instalments, running through a period of four years. He
has stated that this method of payment is most unethical and unusual,
since it deprives the retiring employees ‘plan and hope’ of utilising
such amount for purposes like building a house, meeting daughters’
marriage expenses etc. He wants that all pension arrears due to retired
Judicial Officers must be paid in lump sum forthwith.
22.2 Some of
the pensioners have pleaded their total helplessness in carrying out the
day-to-day work without a home orderly or assistant. They say that they
are left high and dry after retirement. Even for paying electricity
bill and water bill etc., they have to personally go and stand in queue
which they have not done in their life time. Ironically, they have
stated that as Judicial Officers, they are made to sit on the elevated
Dais but after retirement, they are made to stand in queue with the
general public. They have sought atleast a domestic assistant to do
their indoor and outdoor work.
22.3 In sum, it has been suggested
that the Commission should evolve a uniform scheme for equalisation of
pensions of comparable posts with reference to the revised scales of
pay, irrespective of the date of retirement, and recomputation of
pensions of all pensioners by removal of ceilings put on the maximum
pension in each State/UT so that their pensions are broadly comparable
to pensions of those retiring on the revised scales of pay. They have
thus pleaded for absolute parity among all the pensioners
22.4 It has
also been urged that this principle has already been conceded in the
case of Judges of Supreme Court, High Courts and also Civilian Employees
of Central Government with effect from 1-1-1996.
Medical Facilities :
22.5
The need for medical care and attention increases with advancement of
age. The Government of India has extended CGHS facilities to pensioners,
wherever such scheme is available, provided they pay the same quantum
of contribution as paid by the serving employees.
22.6 Very recently,
with effect from 1-12-1997, Government of India have granted a fixed
medical allowance of Rs.100/- per month to pensioners in areas not
covered by CGHS for meeting the expenditure on day-to-day medical
treatment where it does not require hospitalisation. This system of
providing some fixed allowance to pensioners also exists in some States.
22.7 We have received a number of suggestions for coverage and
extension of medical facilities to the pensioners. They may be
summarised as under:-
1) The same medical facilities for pensioners and their family members on par with serving officers.
2) Some fixed monthly medical allowance;
3) Some kind of comprehensive medical insurance for the pensioners.
4)
Provision for issue of medical cards to the retired officers to be
honoured by all Govt. hospitals and Private Nursing Homes and expenses
incurred should be met by the respective Governments;
5) Provision for medical facilities on line of the Judges of the High Court/Supreme Court.
6)
Provision for a medical insurance wherein 50% of the contribution has
to be made by the pensioners and the balance 50% by the respective State
Governments.
22.8 Before we consider the demands of the pensioners,
it may be useful to refer to the recommendation of the V CPC as to
parity of pension to all pensioners. It has stated:
"137.13. While it
is desirable to grant complete parity in pension to all past pensioners
irrespective of the date of their retirement, this may not be feasible
straightaway as the financial implications would be considerable. The
process of bridging the gap in pension of past pensioners has already
been set in motion by the Fourth CPC when past pensioners were granted
additional relief in addition to consolidation of their pension. This
process of attainment of reasonable parity needs to be continued so as
to achieve complete parity over a period of time.
"137.14. As a
follow-up of our basic objective parity, we would recommend that the
pension of all the pre-1986 retirees may be updated by notional fixation
of their pay as on 1-1-1986 by adopting the same formula as for the
serving employees. This step would bring all the past pensioners to a
common platform or on to the Fourth CPC pay scales as on 1-1-1986.
Thereafter, all the pensioners who have been brought on to the Fourth
CPC pay scales by notional fixation of their pay and those who have
retired on or after 1-1-1986 can be treated alike in regard to
consolidation of their pension as on 1-1-1996 by allowing the same
fitment weightage as may be allowed to the serving employees. However,
the consolidated pension shall be not less than 50% of the minimum pay
of the post, as revised by Fifth CPC, held by the pensioner at the time
of retirement. This consolidated amount of pension should be the basis
for grant of dearness relief in future. The additions to pension as a
result of our recommendations in this chapter shall not, however,
qualify for any additional commutation for existing pensioners."
22.9
The Central Government has accepted the above recommendation for the
Central Government Employees with effect from 1-1-1996 vide Government
of India O.M.No.F.45/86/97-P&PW(A) – Part –II dated 27-10-1997
issued by the Additional Secretary (Pension), Department of Pension
& Pensioners Welfare, Ministry of Personnel, Public Grievances &
Pensions, New Delhi. Hereto annexed a copy of the said Government
order.
22.10 As a first step, the Commission in its Interim Report
dated31-1-1998 granted Interim Relief at a uniform rate of 40% of the
basic pension with effect from 1-7-1996 to all pensioners who retired
prior to 1-7-1996. The Commission intended that to be a provisional
measure pending finalisation of the Report with the determination of a
uniform salary structure to Judicial Officers throughout the country.
22.11
In this interregnum, the Central Government and certain State
Governments have revised the pay scales of their employees and also
pensionary benefits. The State Governments have, however, fixed a
ceiling on maximum pension for their employees depending upon the
maximum pay allowed to them.
22.12 We are not unaware of the plight
of some of the Retried Judicial Officers. We are, indeed, sympathetic to
them and their family members. All of a sudden, upon retirement, they
would be fish out of water. They have to maintain atleast some semblance
of status in society as retired Judicial Officers.
22.13 We are
also conscious of the fact that the Judicial Officers after retirement
cannot engage themselves in any gainful employment except to revert to
the Bar. But the age is against them. There is no enough stamina left
with them in that age to run from pillar to post apart from the
difficulty to reactivate the art of submission in the court.
22.14
But we cannot afford to be too generous at the cost of the public. We do
not think that it is appropriate to allow L.T.C. to retirees. In fact,
we have suggested at one stage that the Judicial Officers should be
allowed to carry forward their entitlement of L.T.C to be utilised after
retirement. But the proposal has been opposed by the serving Judicial
Officers. Therefore, we cannot allow any L.T.C. to retirees.
22.15 We are also not inclined to provide them any free telephone calls.
22.16 We have elsewhere rejected a similar request from others for restoration of Commuted Pension before 15 years.
22.17 We however, consider that a provision for ‘domestic help’ must be provided.
22.18 OUR RECOMMENDATIONS :
1.
The Revised Pension of the Retired Judicial Officers should be 50% of
the minimum pay of the post held at the time of retirement, as revised
from time to time.
2. There should not be any ceiling limit on the maximum pension payable.
3.
The Pensioners should be given the benefit of full neutralisation of
the cost of living in the same scale as is being extended to the serving
Judicial Officers.
4. A cash payment of Rs.1,250/- per month as ‘
Domestic Help Allowance’ to every retired Judicial Officer, which would
be paid upon producing a certificate to that effect.
5. All retired
Judicial Officers should be given a fixed monthly medical allowance of
Rs.100/- to meet day-to-day medical expenses.
6. All the medical
facilities that we have recommended to serving Judicial Officers with
regard to treatment and reimbursement of expenditure etc., be made
applicable to retirees.
22.19 We may, however, state that medical
reimbursement bills submitted by the retired Judicial Officers should be
processed and paid by the office of the Principal District Judge of the
place where the retiree has opted to settle.
* * * * *
ANNEXURE
F.No.45/96/97. P&PW(A)-Part II
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Pension & Pensioners Welfare
New Delhi, Dated 27th October 1997.
OFFICE MEMORANDUM
Subject:
Implementation of Government’s decision on the recommendations of the
Fifth Central Pay Commission – Revision of Pension of pre-1996
pensioners/Family pensioners etc.
* * * * *
The undersigned is
directed to say that in pursuance of Government’s decision on the
recommendations of Fifth Central Pay Commission, sanction of the
President is hereby accorded to the regulation, with effect from
1.1.996, pension/family pension of all the pre-1996 pensioners/family
pensioners in the manner indicated in the succeeding paragraphs.
2.1
These orders apply to all pensioners/family pensioners who were drawing
pension/family pension on 1.1.996 under the Central Civil Services
(Pension Rules), 1972, CCS (Extraordinary Pension) Rules and the
corresponding rules applicable to Railway Pensioner and Pensioners of
All India Services including officers of the Indian Civil Service
retired from service on or after 1.1.1973.
2.2 Separate orders will be issued by the Ministry of Defence in regard to Armed Forces pensioners/family pensioners.
2.3
These orders do not also apply to retired High Court and Supreme Court
Judges and other Constitutional/Statutory Authorities whose pension etc.
is governed by separate rules/orders.
3.1 In these orders:
(a)
‘Existing Pensioner’ or ‘Existing Family Pensioner’ means a pensioner
who was drawing/entitled to pension/family pension on 31.12.1995.
(b)
‘Existing Pension’ means the basic pension inclusive of commuted
portion, if any, due on 31.12.1995. It covers all classes of pension
under the CCS (Pension) Rules, 1972 as also Disability Pension under the
CCS(Extraordinary Pension) Rules and the corresponding rules applicable
to Railway employees and Members of All India Services.
(c)
‘Existing family pension’ means the basic family pension drawn on
31.12.1995 under the CCS(Pension) Rules and the corresponding rules
applicable to Railway employees and Members of All India Services.
(d) ‘Existing Dearness Relief’ means the relief due to pensioners/family pensioners upto average CPI 1510.
4.1.
The pension/family pension of existing pre-1996 pensioners/family
pensioners will be consolidated with effect from 1.1.1996 by adding
together:-
i) The existing pension/family pension.
ii) Dearness
Relief upto CPI 1510 i.e., @ 148%, 111% and 96% of Basic Pension as
admissible vide this Department’s O.M.No.42/8/96-P&PW(G) dated
20.3.1996.
iii) Interim Relief I
iv) Interim Relief II
v) Fitment weightage @ 40% of the existing pension/family pension.
The
amount so arrived at will be regarded as consolidated pension/family
pension with effect from 1.1.1996. The upper ceiling on pension/family
pension laid down in the Department of Pension and Pensioners’ Welfare
Office Memorandum No.2/1/87/PIC.II dated 14.4.1987 has been increased
from Rs.4500/- and Rs.1250/- to 50% and 30% respectively of the highest
pay in the Government ( The highest pay in the Government is Rs.30,000/-
since 1.1.1996). Since the consolidated pension will be inclusive of
commuted portion of pension, if any, the commuted portion will be
deducted from the said amount while making monthly disbursements.
4.2
Some of the existing pensioners who retired between 31.3.1985 and
31.12.1985 are in receipt of personal pension. The said personal pension
will continue to be granted as a separate element and will not be
merged into the pension as consolidated above.
4.3 Since the
consolidated pension/family pension arrived at as per paragraph 4.1
includes dearness relief upto average index level 1510, dearness relief
will be admissible thereon only beyond index average 1510 in accordance
with the revised scheme of dearness relief for which orders are being
issued separately. The two instalments of dearness relief sanctioned
earlier from 1.7.1996 and 1.1.1997 in this Department’s Office
Memorandum No. 42(8)/P &PW(G)/96 dated the 12th September 1996 and
Office Memorandum No.42(2)P&PW(G)97 dated the 3rd April 1997
respectively shall be adjusted against revised Dearness Relief becoming
due on the consolidated pension/family pension.
4.4 The amount
already paid on account of Interim Relief sanctioned vide this
Department’s Office Memorandum No.42/18/95 P & PW(G) Vol.II dated
6.9.1996 will be recovered from the arrears becoming due on
consolidation of pension/family pension as in para 4.1above and sanction
of Dearness Relief on consolidated pension/family pension.
5.1
Where the consolidated pension/family pension in terms of paragraph 4
above works out to an amount less than Rs.1275/- the same shall be
stepped upto Rs.1275/-. This will be regarded as pension/family pension
with effect from 1.1.1996. In the case of pensioners who are in receipt
of more than one pension, the floor ceiling of Rs.1275/- will apply to
the total of all pensions taken together.
5.2. Where the disability
pension under the CCS (EOP) Rules is drawn in addition to invalid
pension under the CCS (Pension) Rules, 1972, the minimum limit of
Rs.1275/- will apply to total of two pensions as indicated in paragraph
5.1. Where the disability pension is drawn in isolation, the minimum
limit of Rs.1275/- will apply to 100% disability. For lesser degree of
disability the minimum limit will be proportionately less.
6. The
employed/re-employed pensioners/family pensioners are not getting
dearness relief on pension at present under the extant orders, In their
case, the notional dearness relief which would have been admissible to
them but for their employment/re-employment will be taken into account
for consolidation of their pension in terms of paragraph 4.1. above as
if they were drawing the dearness relief. Their pay will be re-fixed
w.e.f. 1.1.96 with reference to consolidated pension becoming admissible
to them. Dearness relief beyond 1.1.1996 will, however, not be
admissible to them during the period of employment/re-employment.
7.
The cases of Central Government employees who have been permanently
absorbed in public sector undertakings/autonomous bodies will be
regulated as follows:-
a) PENSION
Where the Government servants
on permanent absorption in public sector undertakings/autonomous bodies
continue to draw pension separately from the Government, the pension of
such absorbees will be updated in terms of these orders. In cases where
the Government servants have drawn one time lumpsum terminal benefits
equal to 100% of their pensions and have become entitled to the
restoration of one-third commuted portion of pension as per Supreme
Court Judgement dated 15.12.1995, their cases will not be covered by
these orders.
b) FAMILY PENSION
In cases where, on permanent
absorption in public sector undertaking/autonomous bodies, the terms of
absorption permit grant of family pension under the CCS (Pension) Rules,
1972 or the corresponding rules applicable to Railway employees/members
of All India Services, the family pension being drawn by family
pensioners will be updated in accordance with these orders.
8. All
Pension disbursing authorities including Public Sector Banks handling
disbursement of pension to the Central Government pensioners are hereby
authorised to pay pension/family pension to existing pensioners/family
pensioners at the consolidated rates without any further authorisation
from the concerned Accounts Officers/Head Office etc. A table indicating
the existing pension, the consolidated pension and difference payable
from 1.1.1996 is enclosed for ready reference, (Annexure I). This table
may be used where the pensioner is in receipt of a single pension only.
Where a pensioner is in receipt of more than one pension, consolidation
may be done separately in terms of paragraph 4.1. and as indicated in
paragraph 5 floor ceiling of Rs.1275/- may be applied to total pension
from all sources taken together. A suitable entry regarding the revised
consolidated pension shall be recorded by the pension Disbursing
Authorities in both halves of the Pension Payment Order. An intimation
regarding disbursement of revised pension may be sent by the pension
disbursing authorities to the Office of CPAO and Accounts Officer which
had issued the PPO in the form given at Annexure-II so that the latter
can update the Pension Payment Order Register maintained by him. An
acknowledgement shall be obtained by the Pension Disbursing Authorities
from Office of CPAO and the respective Accounts Officers in this behalf.
9.1
The consolidated pension/family pension as worked out in accordance
with provisions of Para 4.1 above shall be treated as final ‘Basic
Pension’ with effect from 1.1.1996 and shall qualify for grant of
Dearness Relief sanctioned thereafter in respect of following categories
of pensioners/family pensioners:-
i) Pensioners who retired between the period from 1.1.1986 to 31.12.1995.
ii)
Family pensioners, who became entitled for family pension during the
period from 1.1.1986 to 31.12.1995 and were sanctioned family pension at
30% of the last pay drawn by the deceased employee.
9.2 In case of
other pensio0ners/family pensioners, these orders provide for
revision/consolidation of pension with effect from 1.1.1996 as an
interim measure only so as to provide them immediate relief and shall be
subject to variation. Detailed instructions regarding fixation of their
pay on notional basis /revision/consolidation of pension/family pension
and issue of authorisation in this regard will be issued separately.
Pending issue of detailed instructions as stated above, grant of
pension/family pension to all these pensioners/family pensioners may be
continued to be regulated under these orders.
10. The arrears on
account of consolidation of pension would be paid in cash with the
stipulation that where amount of arrears is less than Rs. 5,000/-, it
should be paid in one instalment and where it is in excess of Rs.5,000/-
it should be paid in two instalments, in the first instalment, payment
should be restricted to Rs.5,000/- plus fifty percent of their balance
amount of arrears.
11. It is considered desirable that the benefit of
these orders should reach the pensioners as expeditiously as possible.
To achieve this objective, it is desired that all pension disbursing
Authorities should ensure that the revised pension and the first
instalment of arrears due to the pensioners in terms of the above orders
is paid to the pensioners or credited to their account by 30th
Novemnber, 1997 or before positively. Instructions regarding release of
second instalment of arrears will be issued later.
12. In their
application to the persons belonging to Indian Audit and Accounts
Department these orders issue in consultation with the Comptroller and
Auditor General of India.
13. Ministry of Agriculture etc. are
requested to bring the contents of these Orders to the Notice of
Controller of Accounts / Pay and Accounts Officers and Attached and
subordinate Offices under them on a top priority basis. All Pension
disbursing offices are also advised to prominently display these orders
on their notice boards for the benefit of pensioners
Sd/-
(S. LAKSHMINARAYANAN)
Additional Secretary (Pension)
To
All Ministries/Departments of Government of India
F.No.45/86/97-P PW(A)-Pt.II dated 27-10-1997
Copy to:-
(As per list attached)
23. PENSION STRUCTURE FOR PAST PENSIONERS
22.1 Pensioners Associations and individual pensioners have made various and varied submissions to the Commission.
I. Retired Judges’ Association (West Bengal) has made a detailed representation, inter alia, stating:
i)
To evolve a formula by which inequity is eliminated in case of future
revision of pension without limiting to the minimum of notional revised
pay or for that matter 50% of such notional pay as actual pension since
for all practical purposes the pensioners will be deprived of any
increment in such pension except at the minimum level.
ii) To grant a
lump sum of Rs.1,000/- p.m. to be credited directly to the pension
account of the retiree in the Bank towards day-to-day routine medicines
and check-up.
iii) To provide travel concession to the retired judges
once a year to travel to any place in India. Such concession should be
equivalent to 50% rebate in air or train fare in the first class for the
retiree and his dependents irrespective of their age.
This should
be taken as a special honour to a judge on his retirement and this
benefit is absolutely necessary because the retired judge is not in a
position to travel outside with his family.
II. A.P. Retired
Judicial Officers Association, Hyderabad with Sri D.V. Ramana Murthy as
its President, has submitted a memorandum to the Commission to recommend
a new Pension formula ensuring the pension of not less than 50% of the
minimum pay of the proposed new pay scales for the post irrespective of
date of retirement of the officers.
III. Sri T. Gopalakrishna Murthi,
Retired District & Sessions Judge from Hyderabad has made a written
submission to the Commission seeking several reliefs for himself and
for other retirees.
IV. Sri M. Narasimha Reddy, Chief Judge, City Small Causes Court, Hyderabad, has sought the following:
i)
Telephone facility upto 500 free calls bi-monthly should be allowed or
else the bi-monthly rent of Rs.350/- shall be borne out by the
Government.
ii) House sites shall have to be allotted for Judicial Officers for a reasonable price and loans for construction of houses; and
iii) L.T.C. once in a year within the State and L.T.C. once in two years to any place in India may be provided.
V.
Sri A.V. Koteswara Rao, Former Secretary to Government & Retired
District Judge from Andhra Pradesh in his Memorandum has emphasised
among others, the following:
i) Restoration of Commuted Pension after (9) years.
ii)
Family Pension in the event of unfortunate death of the pensioner shall
be given to his surviving wife to the extent of the entire amount of
pension without reduction beyond the period of 7 years till her demise.
VI.
Some of the Retired Judicial Officers have made several representations
urging to remove the anomaly in the existing pension structure and
fixing new rates or scales of pension.
They also seek a fixed sum of
medical expenses, telephone facility concession of 500 free calls,
travel concessions and minimum family pension etc. Further, they want
preference to be given to the pensioners/ family of the pensioners
regarding beds in Government Hospitals, with benefits to the mentally
retarded children of the pensioners. They have suggested to recommend
pioneering scheme of family security/welfare/benefit fund to the
families of the pensioners by deducting certain amount from their
pension including payment of bonus to pensioners on par with the
Government employees.
VII. Sri N. Haridas, District Judge (Rtd.) from
Thiruvananthapuram has complained against the attitude of the State
Government of Kerala ordering that the Pension arrears and other
retirement benefits due to the retiring persons are to be paid in eight
‘half yearly’ instalments, running through a period of four years. He
has stated that this method of payment is most unethical and unusual,
since it deprives the retiring employees ‘plan and hope’ of utilising
such amount for purposes like building a house, meeting daughters’
marriage expenses etc. He wants that all pension arrears due to retired
Judicial Officers must be paid in lump sum forthwith.
22.2 Some of
the pensioners have pleaded their total helplessness in carrying out the
day-to-day work without a home orderly or assistant. They say that they
are left high and dry after retirement. Even for paying electricity
bill and water bill etc., they have to personally go and stand in queue
which they have not done in their life time. Ironically, they have
stated that as Judicial Officers, they are made to sit on the elevated
Dais but after retirement, they are made to stand in queue with the
general public. They have sought atleast a domestic assistant to do
their indoor and outdoor work.
22.3 In sum, it has been suggested
that the Commission should evolve a uniform scheme for equalisation of
pensions of comparable posts with reference to the revised scales of
pay, irrespective of the date of retirement, and recomputation of
pensions of all pensioners by removal of ceilings put on the maximum
pension in each State/UT so that their pensions are broadly comparable
to pensions of those retiring on the revised scales of pay. They have
thus pleaded for absolute parity among all the pensioners
22.4 It has
also been urged that this principle has already been conceded in the
case of Judges of Supreme Court, High Courts and also Civilian Employees
of Central Government with effect from 1-1-1996.
Medical Facilities :
22.5
The need for medical care and attention increases with advancement of
age. The Government of India has extended CGHS facilities to pensioners,
wherever such scheme is available, provided they pay the same quantum
of contribution as paid by the serving employees.
22.6 Very recently,
with effect from 1-12-1997, Government of India have granted a fixed
medical allowance of Rs.100/- per month to pensioners in areas not
covered by CGHS for meeting the expenditure on day-to-day medical
treatment where it does not require hospitalisation. This system of
providing some fixed allowance to pensioners also exists in some States.
22.7 We have received a number of suggestions for coverage and
extension of medical facilities to the pensioners. They may be
summarised as under:-
1) The same medical facilities for pensioners and their family members on par with serving officers.
2) Some fixed monthly medical allowance;
3) Some kind of comprehensive medical insurance for the pensioners.
4)
Provision for issue of medical cards to the retired officers to be
honoured by all Govt. hospitals and Private Nursing Homes and expenses
incurred should be met by the respective Governments;
5) Provision for medical facilities on line of the Judges of the High Court/Supreme Court.
6)
Provision for a medical insurance wherein 50% of the contribution has
to be made by the pensioners and the balance 50% by the respective State
Governments.
22.8 Before we consider the demands of the pensioners,
it may be useful to refer to the recommendation of the V CPC as to
parity of pension to all pensioners. It has stated:
"137.13. While it
is desirable to grant complete parity in pension to all past pensioners
irrespective of the date of their retirement, this may not be feasible
straightaway as the financial implications would be considerable. The
process of bridging the gap in pension of past pensioners has already
been set in motion by the Fourth CPC when past pensioners were granted
additional relief in addition to consolidation of their pension. This
process of attainment of reasonable parity needs to be continued so as
to achieve complete parity over a period of time.
"137.14. As a
follow-up of our basic objective parity, we would recommend that the
pension of all the pre-1986 retirees may be updated by notional fixation
of their pay as on 1-1-1986 by adopting the same formula as for the
serving employees. This step would bring all the past pensioners to a
common platform or on to the Fourth CPC pay scales as on 1-1-1986.
Thereafter, all the pensioners who have been brought on to the Fourth
CPC pay scales by notional fixation of their pay and those who have
retired on or after 1-1-1986 can be treated alike in regard to
consolidation of their pension as on 1-1-1996 by allowing the same
fitment weightage as may be allowed to the serving employees. However,
the consolidated pension shall be not less than 50% of the minimum pay
of the post, as revised by Fifth CPC, held by the pensioner at the time
of retirement. This consolidated amount of pension should be the basis
for grant of dearness relief in future. The additions to pension as a
result of our recommendations in this chapter shall not, however,
qualify for any additional commutation for existing pensioners."
22.9
The Central Government has accepted the above recommendation for the
Central Government Employees with effect from 1-1-1996 vide Government
of India O.M.No.F.45/86/97-P&PW(A) – Part –II dated 27-10-1997
issued by the Additional Secretary (Pension), Department of Pension
& Pensioners Welfare, Ministry of Personnel, Public Grievances &
Pensions, New Delhi. Hereto annexed a copy of the said Government
order.
22.10 As a first step, the Commission in its Interim Report
dated31-1-1998 granted Interim Relief at a uniform rate of 40% of the
basic pension with effect from 1-7-1996 to all pensioners who retired
prior to 1-7-1996. The Commission intended that to be a provisional
measure pending finalisation of the Report with the determination of a
uniform salary structure to Judicial Officers throughout the country.
22.11
In this interregnum, the Central Government and certain State
Governments have revised the pay scales of their employees and also
pensionary benefits. The State Governments have, however, fixed a
ceiling on maximum pension for their employees depending upon the
maximum pay allowed to them.
22.12 We are not unaware of the plight
of some of the Retried Judicial Officers. We are, indeed, sympathetic to
them and their family members. All of a sudden, upon retirement, they
would be fish out of water. They have to maintain atleast some semblance
of status in society as retired Judicial Officers.
22.13 We are
also conscious of the fact that the Judicial Officers after retirement
cannot engage themselves in any gainful employment except to revert to
the Bar. But the age is against them. There is no enough stamina left
with them in that age to run from pillar to post apart from the
difficulty to reactivate the art of submission in the court.
22.14
But we cannot afford to be too generous at the cost of the public. We do
not think that it is appropriate to allow L.T.C. to retirees. In fact,
we have suggested at one stage that the Judicial Officers should be
allowed to carry forward their entitlement of L.T.C to be utilised after
retirement. But the proposal has been opposed by the serving Judicial
Officers. Therefore, we cannot allow any L.T.C. to retirees.
22.15 We are also not inclined to provide them any free telephone calls.
22.16 We have elsewhere rejected a similar request from others for restoration of Commuted Pension before 15 years.
22.17 We however, consider that a provision for ‘domestic help’ must be provided.
22.18 OUR RECOMMENDATIONS :
1.
The Revised Pension of the Retired Judicial Officers should be 50% of
the minimum pay of the post held at the time of retirement, as revised
from time to time.
2. There should not be any ceiling limit on the maximum pension payable.
3.
The Pensioners should be given the benefit of full neutralisation of
the cost of living in the same scale as is being extended to the serving
Judicial Officers.
4. A cash payment of Rs.1,250/- per month as ‘
Domestic Help Allowance’ to every retired Judicial Officer, which would
be paid upon producing a certificate to that effect.
5. All retired
Judicial Officers should be given a fixed monthly medical allowance of
Rs.100/- to meet day-to-day medical expenses.
6. All the medical
facilities that we have recommended to serving Judicial Officers with
regard to treatment and reimbursement of expenditure etc., be made
applicable to retirees.
22.19 We may, however, state that medical
reimbursement bills submitted by the retired Judicial Officers should be
processed and paid by the office of the Principal District Judge of the
place where the retiree has opted to settle.
* * * * *
ANNEXURE
F.No.45/96/97. P&PW(A)-Part II
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Pension & Pensioners Welfare
New Delhi, Dated 27th October 1997.
OFFICE MEMORANDUM
Subject:
Implementation of Government’s decision on the recommendations of the
Fifth Central Pay Commission – Revision of Pension of pre-1996
pensioners/Family pensioners etc.
* * * * *
The undersigned is
directed to say that in pursuance of Government’s decision on the
recommendations of Fifth Central Pay Commission, sanction of the
President is hereby accorded to the regulation, with effect from
1.1.996, pension/family pension of all the pre-1996 pensioners/family
pensioners in the manner indicated in the succeeding paragraphs.
2.1
These orders apply to all pensioners/family pensioners who were drawing
pension/family pension on 1.1.996 under the Central Civil Services
(Pension Rules), 1972, CCS (Extraordinary Pension) Rules and the
corresponding rules applicable to Railway Pensioner and Pensioners of
All India Services including officers of the Indian Civil Service
retired from service on or after 1.1.1973.
2.2 Separate orders will be issued by the Ministry of Defence in regard to Armed Forces pensioners/family pensioners.
2.3
These orders do not also apply to retired High Court and Supreme Court
Judges and other Constitutional/Statutory Authorities whose pension etc.
is governed by separate rules/orders.
3.1 In these orders:
(a)
‘Existing Pensioner’ or ‘Existing Family Pensioner’ means a pensioner
who was drawing/entitled to pension/family pension on 31.12.1995.
(b)
‘Existing Pension’ means the basic pension inclusive of commuted
portion, if any, due on 31.12.1995. It covers all classes of pension
under the CCS (Pension) Rules, 1972 as also Disability Pension under the
CCS(Extraordinary Pension) Rules and the corresponding rules applicable
to Railway employees and Members of All India Services.
(c)
‘Existing family pension’ means the basic family pension drawn on
31.12.1995 under the CCS(Pension) Rules and the corresponding rules
applicable to Railway employees and Members of All India Services.
(d) ‘Existing Dearness Relief’ means the relief due to pensioners/family pensioners upto average CPI 1510.
4.1.
The pension/family pension of existing pre-1996 pensioners/family
pensioners will be consolidated with effect from 1.1.1996 by adding
together:-
i) The existing pension/family pension.
ii) Dearness
Relief upto CPI 1510 i.e., @ 148%, 111% and 96% of Basic Pension as
admissible vide this Department’s O.M.No.42/8/96-P&PW(G) dated
20.3.1996.
iii) Interim Relief I
iv) Interim Relief II
v) Fitment weightage @ 40% of the existing pension/family pension.
The
amount so arrived at will be regarded as consolidated pension/family
pension with effect from 1.1.1996. The upper ceiling on pension/family
pension laid down in the Department of Pension and Pensioners’ Welfare
Office Memorandum No.2/1/87/PIC.II dated 14.4.1987 has been increased
from Rs.4500/- and Rs.1250/- to 50% and 30% respectively of the highest
pay in the Government ( The highest pay in the Government is Rs.30,000/-
since 1.1.1996). Since the consolidated pension will be inclusive of
commuted portion of pension, if any, the commuted portion will be
deducted from the said amount while making monthly disbursements.
4.2
Some of the existing pensioners who retired between 31.3.1985 and
31.12.1985 are in receipt of personal pension. The said personal pension
will continue to be granted as a separate element and will not be
merged into the pension as consolidated above.
4.3 Since the
consolidated pension/family pension arrived at as per paragraph 4.1
includes dearness relief upto average index level 1510, dearness relief
will be admissible thereon only beyond index average 1510 in accordance
with the revised scheme of dearness relief for which orders are being
issued separately. The two instalments of dearness relief sanctioned
earlier from 1.7.1996 and 1.1.1997 in this Department’s Office
Memorandum No. 42(8)/P &PW(G)/96 dated the 12th September 1996 and
Office Memorandum No.42(2)P&PW(G)97 dated the 3rd April 1997
respectively shall be adjusted against revised Dearness Relief becoming
due on the consolidated pension/family pension.
4.4 The amount
already paid on account of Interim Relief sanctioned vide this
Department’s Office Memorandum No.42/18/95 P & PW(G) Vol.II dated
6.9.1996 will be recovered from the arrears becoming due on
consolidation of pension/family pension as in para 4.1above and sanction
of Dearness Relief on consolidated pension/family pension.
5.1
Where the consolidated pension/family pension in terms of paragraph 4
above works out to an amount less than Rs.1275/- the same shall be
stepped upto Rs.1275/-. This will be regarded as pension/family pension
with effect from 1.1.1996. In the case of pensioners who are in receipt
of more than one pension, the floor ceiling of Rs.1275/- will apply to
the total of all pensions taken together.
5.2. Where the disability
pension under the CCS (EOP) Rules is drawn in addition to invalid
pension under the CCS (Pension) Rules, 1972, the minimum limit of
Rs.1275/- will apply to total of two pensions as indicated in paragraph
5.1. Where the disability pension is drawn in isolation, the minimum
limit of Rs.1275/- will apply to 100% disability. For lesser degree of
disability the minimum limit will be proportionately less.
6. The
employed/re-employed pensioners/family pensioners are not getting
dearness relief on pension at present under the extant orders, In their
case, the notional dearness relief which would have been admissible to
them but for their employment/re-employment will be taken into account
for consolidation of their pension in terms of paragraph 4.1. above as
if they were drawing the dearness relief. Their pay will be re-fixed
w.e.f. 1.1.96 with reference to consolidated pension becoming admissible
to them. Dearness relief beyond 1.1.1996 will, however, not be
admissible to them during the period of employment/re-employment.
7.
The cases of Central Government employees who have been permanently
absorbed in public sector undertakings/autonomous bodies will be
regulated as follows:-
a) PENSION
Where the Government servants
on permanent absorption in public sector undertakings/autonomous bodies
continue to draw pension separately from the Government, the pension of
such absorbees will be updated in terms of these orders. In cases where
the Government servants have drawn one time lumpsum terminal benefits
equal to 100% of their pensions and have become entitled to the
restoration of one-third commuted portion of pension as per Supreme
Court Judgement dated 15.12.1995, their cases will not be covered by
these orders.
b) FAMILY PENSION
In cases where, on permanent
absorption in public sector undertaking/autonomous bodies, the terms of
absorption permit grant of family pension under the CCS (Pension) Rules,
1972 or the corresponding rules applicable to Railway employees/members
of All India Services, the family pension being drawn by family
pensioners will be updated in accordance with these orders.
8. All
Pension disbursing authorities including Public Sector Banks handling
disbursement of pension to the Central Government pensioners are hereby
authorised to pay pension/family pension to existing pensioners/family
pensioners at the consolidated rates without any further authorisation
from the concerned Accounts Officers/Head Office etc. A table indicating
the existing pension, the consolidated pension and difference payable
from 1.1.1996 is enclosed for ready reference, (Annexure I). This table
may be used where the pensioner is in receipt of a single pension only.
Where a pensioner is in receipt of more than one pension, consolidation
may be done separately in terms of paragraph 4.1. and as indicated in
paragraph 5 floor ceiling of Rs.1275/- may be applied to total pension
from all sources taken together. A suitable entry regarding the revised
consolidated pension shall be recorded by the pension Disbursing
Authorities in both halves of the Pension Payment Order. An intimation
regarding disbursement of revised pension may be sent by the pension
disbursing authorities to the Office of CPAO and Accounts Officer which
had issued the PPO in the form given at Annexure-II so that the latter
can update the Pension Payment Order Register maintained by him. An
acknowledgement shall be obtained by the Pension Disbursing Authorities
from Office of CPAO and the respective Accounts Officers in this behalf.
9.1
The consolidated pension/family pension as worked out in accordance
with provisions of Para 4.1 above shall be treated as final ‘Basic
Pension’ with effect from 1.1.1996 and shall qualify for grant of
Dearness Relief sanctioned thereafter in respect of following categories
of pensioners/family pensioners:-
i) Pensioners who retired between the period from 1.1.1986 to 31.12.1995.
ii)
Family pensioners, who became entitled for family pension during the
period from 1.1.1986 to 31.12.1995 and were sanctioned family pension at
30% of the last pay drawn by the deceased employee.
9.2 In case of
other pensio0ners/family pensioners, these orders provide for
revision/consolidation of pension with effect from 1.1.1996 as an
interim measure only so as to provide them immediate relief and shall be
subject to variation. Detailed instructions regarding fixation of their
pay on notional basis /revision/consolidation of pension/family pension
and issue of authorisation in this regard will be issued separately.
Pending issue of detailed instructions as stated above, grant of
pension/family pension to all these pensioners/family pensioners may be
continued to be regulated under these orders.
10. The arrears on
account of consolidation of pension would be paid in cash with the
stipulation that where amount of arrears is less than Rs. 5,000/-, it
should be paid in one instalment and where it is in excess of Rs.5,000/-
it should be paid in two instalments, in the first instalment, payment
should be restricted to Rs.5,000/- plus fifty percent of their balance
amount of arrears.
11. It is considered desirable that the benefit of
these orders should reach the pensioners as expeditiously as possible.
To achieve this objective, it is desired that all pension disbursing
Authorities should ensure that the revised pension and the first
instalment of arrears due to the pensioners in terms of the above orders
is paid to the pensioners or credited to their account by 30th
Novemnber, 1997 or before positively. Instructions regarding release of
second instalment of arrears will be issued later.
12. In their
application to the persons belonging to Indian Audit and Accounts
Department these orders issue in consultation with the Comptroller and
Auditor General of India.
13. Ministry of Agriculture etc. are
requested to bring the contents of these Orders to the Notice of
Controller of Accounts / Pay and Accounts Officers and Attached and
subordinate Offices under them on a top priority basis. All Pension
disbursing offices are also advised to prominently display these orders
on their notice boards for the benefit of pensioners
Sd/-
(S. LAKSHMINARAYANAN)
Additional Secretary (Pension)
To
All Ministries/Departments of Government of India
F.No.45/86/97-P PW(A)-Pt.II dated 27-10-1997
Copy to:-
(As per list attached)
24. WORK METHODS AND WORK ENVIRONMENT
24.1
The terms of reference to our Commission inter-alia require us to
examine the work methods and work environment in courts to promote
efficiency in judicial administration.
24.2 The proper work method
and work environment in any court largely depend upon the judge who
presides over the court. Those who preside over the court should be
familiar with the procedure and its working and be able to proceed
without delay or hesitation on matters of evidence and procedure. He
must have the ability to control the courts and should command the
respect of those who appear before him or her, whether Advocate, Clients
or Witnesses. Without these qualities of the Presiding Judge, it would
be impossible to provide speedy and satisfactory justice to the litigant
public.
24.3 The second important aspect is that the Judge should
have a court, with proper facilities, assistance of the personal and
other court staff.
24.4 The third and equally important aspect is
that the proceedings require the presence of parties and their counsel
if they are represented and the presence of witnesses.
24.5 We may broadly examine these three aspects together.
24.6
The Commission has already emphasised the need to recruit right kind of
persons – talented, dedicated and honest persons with attractive
service conditions. The Commission also emphasised the need to have
judicial training institute in every State for imparting induction
training / periodical refresher courses to Judicial Officers.
24.7 Both these aspects have been elaborately dealt with in the earlier chapters.
24.8
To examine the court work methods and work environment and to suggest
improvements thereof, the Commission engaged the services of Indian
Institute of Management (IIM), Bangalore. The IIMB, after an in-depth
study, has submitted its report, which will be summarised hereunder.
24.9
IIMB in its report, inter-alia, states that most people having stakes
in the judicial work are of opinion that justice delivery system is
unsatisfactory or poor. The main reason given by them is the delay in
disposal of cases.
24.10 IIMB has ransacked the order sheets of several cases and after carefully analysing them stated as follows:
"In
order to gain an initial insight into the extent of delays obtaining at
present in subordinate civil courts, a sample of sixteen "Order Sheets"
taken out at random from the City Civil Court in Bangalore were
examined. An interesting (though not surprising) feature of the data we
obtained on processing, time for different cases was the wide
variability that obtained from case to case and court to court. The time
taken to serve summons and emergency notices to defendants varied from
three months to three years. The time taken to file written statements
ranged from six months to twentyfour months. Interlocutory applications
caused delays ranging from four months to four years. Framing of issues
consumed as much as three years and six months in one case. Other stages
that delayed the cases were absence of advocates and, of course,
innumerable adjournments given for a variety of reasons. The "Order
Sheets" contain revealing information about sources of delay . . . . . .
."
The IIMB goes on to state :
"The major causes of delays were
"summons not being served on time" and "witnesses not being present in
court". For criminal cases, the most widely felt source of delay was
"inadequate number of concerned personnel". For civil cases, it was
"filing of unwarranted Interlocutory Applications". This finding accords
with the views of several commissions and reinforces the felt need to
introduce long over due reforms.
24.11 The IIMB has examined the
question of Process Management with reference to the report of Lord
Woolf of Britain and then states:
"Process Management may be termed
as Case Management in the legal context. We give below the important
aspects of case management. Case Management as stated in the report of
Lord Woolf in Britain has the following dimensions:-
a) Identifying key issues in a case
b) Encouraging parties to settle cases or agree on issues
c) Summary disposal of weak cases and trivial issues
d) Deciding the order in which the issues are to be resolved
e) Fixing time table for parties to take specific steps
f) Limiting disclosure and expert evidence
g) Allocating each case to specific track (Fast Track / Multi Track)
h) Achieving transparency, control of costs
i)
Fixing and enforcing time table for procedural steps before and during
trial, limiting length of trial strictly and the judge to ensure
effective use of allotted time.
24.12 The remarks of IIMB on this aspect are as follows :
In
the Indian context, enforcing time tables would be an essential element
of Case Management and would involve deadlines to be set at the
following stages of the legal process :
Serving Summons and Warrants in time
Posting of cases
Examination of Witnesses
Effective Pleadings
Trial Procedure (criminal cases)
Controlling Discovery, Inspection and Admission
Limiting adjournments, Interlocutory Applications
Effective execution of decrees (civil cases)
24.13
The IIMB has found that the delay in most of the cases is due to
multiplicity of interlocutory applications, which are not dealt with by
the Court promptly.
24.14 Further, the IIMB has noted that the Courts
are not taking advantage of Orders X to XII of the Code of Civil
Procedure (Code).
24.15 The IIMB then referred to the proposed Code
of Civil Procedure (Amendment) Bill, 1997 and in particular the
following provisions:
(i) Any plaint to be filed should be in
duplicate, accompanied by all documents relied upon by the plaintiff.
Any document not filed shall not be allowed in evidence at the hearing.
The affidavit of genuineness of the claim must also be filed at this
stage.
(ii) The Court shall issue summons to defendant within
thirty days of institution of the suit, deliver the summons to the
plaintiff (addressed to the defendant) for service and direct that the
summons be served by courier service or fax or electronic mail as
prescribed or approved by the High Court. The plaintiff should send the
summons as directed by the Court within two days of writing of the
summons by the Court. Default on the part of the plaintiff to deliver
the summons to defendant will lead to dismissal of the suit.
(iii)
The defendant should furnish the written statement in duplicate along
with all documents relied upon. Any document not filed shall not be
allowed to be received in evidence at the hearing. This should be filed
within 30 days from the date of service of summons. This should also be
supported by an affidavit.
(iv) Time taken to record oral evidence of
witnesses must be reduced by filing affidavits of examination-in-chief
and filing the statements recorded before a Commissioner, if need be, in
the case of cross-examination and re-examination.
(v) Where elements
of settlement acceptable to the parties are apparent, the Court should
formulate terms of settlement and after obtaining the views of the
parties, may refer the terms of possible settlement for Arbitration,
Conciliation or judicial settlement through Lok Adalat for mediation.
The Court shall direct the parties to opt for either mode of settlement
outside the Court and fix appearance before the forum or authority as
may be opted by the parties. The parties shall then appear before the
authority for conciliation. If the Presiding Officer is satisfied that
it is not proper to proceed with the matter further, in the interest of
justice, the matter may be referred back to the Court.
(vi) In the
case of adjournments, it is obligatory for the judge to record reasons
and award actual or higher cost, not merely notional cost, to be paid by
the party seeking adjournment. This proposal also limits the number of
adjournments to three to a party during the hearing of a suit.
(vii)
The Court, while granting temporary injunction to restrain an act or
make an order for the purpose of staying proceedings against the
defendant in relation to a property under disposition, shall direct the
plaintiff to provide security so as not to cause delay on flimsy grounds
(viii)
In matters relating to property disputes, to avoid hardship to the
affected party, the Court may ask for the appointment of a Commission to
make investigations and elucidate matters in dispute about the property
so that when the suit is tried, the findings of the Commission will be
available.
(ix) On the day of judgement, authenticated copies should
be made available immediately after the judgement is pronounced, and
within fifteen days, the decree shall also be drawn up. An appeal may be
preferred in the Court, which passes the decree, and notices shall be
served on the advocates in the Court of first instance.
24.16 The IIMB has stated that the above provisions are indeed useful means of avoiding delay in disposal of cases.
24.17
The IIMB recommends that awaiting the enactment of that proposed
legislation, the High Courts could issue certain guidelines to lower
Courts similar to those provisions wherever they are not inconsistent
with the existing provisions of the Civil Procedure Code in order to
reduce the avoidable delay in disposal of cases.
24.18 We also urge
the High Courts to issue such other guidelines / directions to the lower
courts so that Judicial Officers may be armed with such protection
against the objection, if any, raised by the Advocates.
24.19With regard to Criminal Courts, this is what IIMB has to remark :
"(i)
In criminal proceedings, charge sheets are often filed in the Court
after a long lapse of time. The court proceedings start from the time
the charge sheet is filed in the court. There are procedural differences
between summons trial cases and warrant trial cases. Nonetheless,
reasons for delay are common to both procedures. The need for a greater
degree of cooperation among the various agencies involved in the
criminal justice system (The Police, The Prosecution, The Courts and
jail authorities) is imperative since thousands of under trial prisoners
languish in custody in criminal case.
"(ii) Problems in the service
of Processes affect the criminal justice system as much as the civil
system. The printed forms need to be revamped, made more legible and
readable and as many copies as required be made and copies invariably
given to concerned parties. The practice of writing just one copy or
writing the names of more than one witness in one copy and serving them
in a haphazard manner on the parties must end. Many of the delays and
problems encountered by the criminal justice system in this country
originate from the early state of delay and inefficiency occasioned in
the service of processes. Many of these remedies lie with the Police and
have to be initiated before the stage of filing the charge sheet. The
Courts will need to question these delays when the charge sheet is
submitted and monitor the progress of the case before trial commences.
This calls for close coordination between the magistracy, the Courts and
the agencies in charge of enforcing laws, be the Police or Customs or
any other department.
"(iii) The IIMB has noted the usefulness of the
Directorate of Prosecution in Karnataka which was set up following the
recommendations of the Fourteenth Law Commission Report. It is of
opinion that the directorate has greatly contributed to better disposal
of criminal cases in the State. Officials of the rank of Assistant
Public Prosecutor in a Magistrate’s Court and Public Prosecutors in the
court of District and Sessions Judge and officials designated as
Assistant Director of Prosecution, Deputy Director of Prosecution, Joint
Director of Prosecution and Director of Prosecution & Government
Litigation together head an independent, cohesive team dealing with all
the government litigation in lower courts. The charge sheets are vetted
by the Assistant Director of Prosecution who is attached to the
Superintendent of Police of the district. This practice helps the
prosecution to present a well-articulated case before the court and
minimizes the chances of legal defects in the charge sheet. This single
practice could by itself contribute to reduction of delays and
streamlining of the system and is therefore worthy of emulation
countrywide. (This may need an amendment to Section 173 of the Criminal
Procedure Code.)"
The IIMB recommends the pattern of the Karnataka model of Directorate of Prosecution for replication in all the States."
24.20
The IIMB after examining the 77th Report of the Law Commission has also
suggested that at least two well trained police officials at every
police station should be set apart for getting service of summons
effected upon witnesses for cases relating to that police station and
for ensuring their presence on the date of hearing. Not only these
police officials be set apart for service of process but they should not
be diverted for other duties.
24.21 We entirely agree with these
suggestions. We suggest, if not two police officers, at least one of
them must be set apart exclusively in every police station to attend the
court work, like service of summons, ensuring presence of witnesses and
undertrial prisoners. We request the High Courts to take up this matter
with their Government.
24.22 Among the general recommendations made by IIMB, the following may be noted :
A. xx xx xx xx
B. xx xx xx xx
C. xx xx xx xx
D. Infrastructure, Staff facilities and Working Environment
6)
The existing classification of Courts based on work load should be
re-examined by each High Court and new classification based on existing
work load should be arrived at.
7) Load data for each Court, based on
the nature of the cases should result in realistic classification and
help establish benchmarks for performance at the Court and the
individual levels. These benchmarks would help to assess the work load
of each court, each judge, and eventually serve as inputs for future
planning and performance appraisal exercises. These will also help
superior courts by way of norms for use at the time of inspections.
8)
There is scope to relieve the judge of some of the functions not
directly related to judicial work. The suggestion to create an Auxiliary
Adjudication Service which will function within the Court but will not
call upon the resources of the judge except in rare cases should be
further examined. Pre-trial processing tasks could be left to the
Auxiliary Service.
9) Training and Development of the Human Resources
of the judicial department is an issue that should be addressed
earnestly to attain higher efficiency levels. Job Content, Job
Description, Goal Setting and Performance Appraisal should receive
attention.
10) Court facilities should be upgraded significantly to
improve the morale of court officers and the staff and to offer better
comforts to the public. Waiting rooms, information kiosks, telephones,
photo copying machines; drinking water and toilet facilities for the
public are necessary.
11) The Presiding Officers should be provided
with dictating machines to reduce their dependence on stenographers. The
working environment for the judicial staff should be pleasant. They
should not depend upon the petitioners, members of the public etc., for
stationery and other basic requirements. Adequate working space,
ventilation, light, provisions of fans, a power generator etc., for all
courts are minimal facilities that must be introduced.
12) As stated
in the 77th Report, judicial officers must be provided with comfortable
residential accommodation. They should not be at the mercy of the
general public for such facilities as it may dilute judicial integrity.
Staff facilities, good living quarters and better working conditions are
pre-conditions for the efficiency of the judiciary. This is a reform
long overdue.
13) The Record Room in the court should be
computerized; all data must be backed up and kept elsewhere in data
storage media for each court. Scanning of documents, micro filming etc.
should be resorted to in order to reduce dependence on manual work, to
prevent tampering with documents and ensuring documents safety.
E. Alternative Dispute Resolution methods (ADR)**
14)
Various reports already submitted in this connection including the114th
Report of the Law Commission of India should be studied and ADR should
not be looked upon merely as a means of Court Management, reduction of
arrears etc.
** The Commission has seperately dealt this subject at the fag end of this chapter.
15)
The Legal Authorities Act, 1987, the Karnataka State Legal Services
Authority Regulations, 1997 and other provisions relating to Lok Adalat
are also relevant. These provisions should be used in pre-trial
proceedings.
16) Mediation as a consensual and voluntary ADR method
and the use of a facilitator trained in conflict resolution should also
be studied and experienced in the Indian context.
17) Resorting to
Arbitration to settle commercial disputes and other ADR routes should be
looked upon as a vital alternative and awareness created among the
public.
18) Plea-bargaining in criminal cases is a concept that calls for wider examination.
19)
Pre-trial discovery helps classify and simplify issues and this calls
for a wider discussion in the light of the Government of Gujarat’s
Judicial Reform Committee which examined the question of pre-trial
discovery with a view to diverting cases to Lok Adalats for resolution.
II. RECOMMENDATIONS : PROCESS IMPROVEMENTS
20)
The following suggestions are based on our re-examination of the
material collected by us and are also supported by the Survey conducted
by us (IIMB Report Chapter 3). The Code of Civil Procedure (Amendment)
Bill, 1997 (Bill No. L of 1977) now before the Parliament has an
important bearing on improving judicial processes. If the Bill is
passed, several observations contained in this report could be deemed to
have been fulfilled. While making improvements in the process, we would
like to stress that an automated system should supplement manual
efforts, which should be based on the Recommendations of the 77th Report
of the Law Commission.
A. Serving Summons in Time
21) Stern punitive action should be initiated against notice / summons / warrants servers, if delay is deliberate.
22)
The various forms in use for issue of processes should be simplified in
language and content. They should enable coding for computerization.
Routine administrative problems should be resolved by using local
resources.
xx xx xx xx
B. Presence of Witnesses (Criminal Cases)
26)
If the prosecution witnesses are not produced, the court should
intervene to secure the presence of at least material witnesses by
issuing coercive processes.
27) The prosecution and defence should
get a maximum of two opportunities to produce their respective
witnesses. Further adjournments should not be allowed, but ends of
justice should be borne in mind.
28) Lack of concern by the state for
witnesses is a major hindrance in securing adequate presence of
witnesses. Witnesses should be treated with consideration with respect
to their time and provided adequate facilities.
C. Adjournments, Interlocutory Applications etc.
29)
Frequent and avoidable adjournments due to dilatory tactics of
litigants and their lawyers are major causes of delay. Deliberate filing
of Interlocutory Applications leading to heavy delays should also be
discouraged. Frequent and unwarranted adjournments, in principle should
be curtailed by discretionary powers given to the judge, keeping the
overall objectives of justice in mind. All reasons for adjournments must
be clearly recorded by the Presiding Officer. Vague and routine reasons
must show up in the Case Summary for follow up action. Cases should not
be adjourned if witnesses are present. The entire evidence should be
recorded in one stretch. Affidavits could be used to prove things of a
formal nature. The provisions of Order 17 of CPC should be enforced
strictly. There should be a ceiling on the number of Interlocutory
Applications. Relevant rules may be amended to allow more than one
prayer in one IL application with a maximum of three IL applications.
ILs should not go on beyond 3 months.
30) A provision to limit prayer
for adjournments by prosecution and defence to two only on any ground
whatsoever deserves serious consideration. For filing counters and
written statements also, there should be a time limit.
31) Heavy
penalties should be imposed on those who plead for adjournments on
frivolous grounds. Frivolous Interlocutory Applications and Appeals and
Revisions on IL applications should be similarly discouraged.
32) For
oral arguments, time limit should be introduced (say 15 minutes per
issue) with a request to file short and neat written argument.
33)
While posting cases, the judge should take into account the plausibility
of conducting trial on a day-to-day basis. Posting of cases should be
undertaken on a rational basis with judicial application of mind. The
Presiding Officer should apply his / her mind to post cases in a shorter
time.
34) Docket management should be introduced. This takes within
its fold simplified procedures and enhances the judicial role in posting
of cases. This will remain a judicial function.
D. Posting of Cases
35) Posting should be based on assessing reasonable work, which could be handled in a day, and not done indiscriminately.
36)
As "Calling Work" consumes much time, the Presiding Officer should
delegate quasi-judicial functions to such Officers and deal with matters
of direct judicial relevance.
37) For more effective co-ordination
among judges, prosecutors, defence lawyers and investigating officers,
each judge should identify problems of co-ordination on a case by case
basis and act as an Arbiter. There could be monthly meetings of these
officials presided by the Judge at which only Court management and Case
management aspects should be discussed.
E. Pleadings
38) As a
matter of law and procedure, pleadings should bring out bare minimum
facts and not matters of evidence. Incomplete pleadings should be
discarded. After stipulated time, only resubmission should be allowed.
Provisions of CPC (Order 6) Rules 16 should be made use of freely.
F. Discovery, Inspection and Admission
39)
Though in the law of procedure, there are provisions for "Discovery,
Inspection and Admission" there are not many cases in which these
provisions are being invoked and this is one of the factors contributing
to delay in disposal of cases. At the time of institution of suit, the
judge should make it clear that the counsel should invoke respective
provisions relating to "Discovery, Inspection and Admission", if they
wanted to avail of such provisions. If they do not take such
opportunity, they should be denied of such opportunity after a
stipulated time frame (say 2 months).
G. Framing of Issues, Settlement of Issues
40)
This is one of the primary duties of the Presiding Officer. It is a
crucial control point. High Courts should issue fresh directives in this
regard, especially in fixing time limits.
H. Judgements / Orders / Decrees
41)
There should be greater control by Presiding Officer in expediting the
execution of decrees, issue of certified copies and related processes.
There should be no delay beyond seven working days after the judgement
to draft and notify the decree. This can be ensured by better-organized
work methods. Any instruction by the High Court in this regard should be
accompanied by other instructions concerning better working procedures.
24.23 The Commission while generally agreeing with these recommendations, has, however, to emphasise the following:
It
is disheartening to note that lawyers who are required to assist the
speedy disposal of cases, are seeking adjournments. It is equally sad to
note that certain Judicial Officers readily accept such requests of the
lawyers and grant adjournments, may be, to be in good books of the Bar.
These two are the major contributing factors for delaying justice.
Secondly, we tend to overlook the existing provisions in the Procedural Code meant for
25. INFORMATION TECHNOLOGY IN THE ADMINISTRATION OF JUSTICE
25.1
Technological Developments in the field of information and introduction
of computers have made a turning point in the history of human
civilization. It has brought about a sea change in all fields of human
activity. It has resulted in enhanced efficiency, productivity and
quality of output in every walks of life.
25.2 The information
technology has been advocated in the western countries for the last two
or three decades, but hardly any worthwhile effort has been made till
recently, particularly, in judicial administration of subordinate courts
in our country.
25.3 The Commission considers that there is an
immediate need for exposing our legal profession, judicial fraternity
and court management to the update computerised technology so as to
render speedy justice with better legal outputs.
25.4 The Commission
formulated the following question in its questionnaire to elicit views
and suggestions for application of Information Technology in Court
System :
Q.No.56 : The introduction of Computers has brought about
sea-change in the work and efficiency in various activities. Are the
courts in your State/UT equipped with Computers for Court Management and
Case Management ?
25.5 The High Courts of Andhra Pradesh, Assam,
Delhi, Gujarat, Himachal Pradesh, Kerala, Madhya Pradesh, Bombay, Uttar
Pradesh, Tamil Nadu and Calcutta have informed that the process of
introduction of computers is on in some of the District Judges' Courts.
25.6
The High Courts of Orissa, Rajasthan, Punjab and Sikkim appear to have
not yet taken steps towards introduction of computers in the lower
Courts.
25.7 The Commission engaged the services of Indian Institute
of Management (IIM), Bangalore, as Consultant, for suggesting
improvement in the Court Management.
25.8 It may be stated that IIM,
Bangalore, is a Consultant for computerisation for many Governmental
Departments and for Public and Private Sector Enterprises. IIM,
Bangalore, is perhaps the best Consultant in the country for Information
Technology.
25.9 The IIM, Bangalore, after studying the utility of
computerisation of Courts in the countries abroad and also surveying the
Court work and Court management in several centres in our country, has
among others, recommended that for the purpose of improvements in
operational efficiency, co-ordination, accessibility and speed in the
judicial administration, the introduction of Information Technology (IT)
is absolutely essential.
25.10 IIM, Bangalore has prepared a comprehensive Report in which the following portion pertains to I.T. in Court work :
"1. Introduction :
Extensive
use of Information Technology by diverse organizations the world over
has resulted in enhanced efficiency, effectiveness and optimal use of
resources. Computers as well as electronic communication devices such as
facsimile machines, electronic mail, video conferencing, provide the
ability to process large volumes of data with speed and accuracy,
exchange of useful information between different locations and support
higher quality of decision making. These capabilities have contributed
to more efficient and responsive systems not only in business
organizations, but also in legal, governmental and other public systems.
While
the Information Revolution arrived in India some years ago, automation
has not transformed all facets of life in equal measure. It has not
permeated to the Subordinate judiciary in particular, resulting in old
work methods based on manual systems being continued even now. The
enormous problems being faced by the judiciary due to arrears, backlog
and delays can be partly resolved by the introduction of automation in
subordinate courts.
2. Work Done So Far :
The 121st Report of the
Law Commission of India (July 1987) has devoted a whole chapter to
"Technological Advances and its use in the context of Judicial
appointments". A beginning has been made by National Informatics Centre
(NIC) in computerisation of Court records. The administrative system in
the Supreme Court has been computerised. A query system allows litigants
anywhere in the country to enquire and obtain information on the status
of a case filed in the Supreme Court through NICNET. The Supreme Court
is also introducing a Classification System as well as a system to track
progress of cases and a Case Flow System. Gujarat High Court has also
introduced a comprehensive case management system. Such systems are also
being initiated at other high courts. Work has also commenced at some
subordinate courts like the City Civil Court in Bangalore.
3. Need for Significant Thrust :
The
problems faced by courts, judiciary and public seeking justice in terms
of backlogs, delays and expense are well known. While there are many
dimensions to these problems, improvements in operational efficiency,
coordination, accessibility and speed which IT could bring about can
contribute significantly towards improvement and alleviation of
difficulties. However the present pace of development, particularly at
the subordinate court level is too slow and is unlikely to have the
desired impact in the near future. Massive problems need appropriately
large commitments and major initiatives if a significant dent is to be
made.
Recently, there has been a tremendous interest in major
initiatives in IT at the national level. A task force set up by the
Prime Minister has drawn up 108 recommendations with the objective of
developing India into an "IT Superpower". In our view, applications
having a major impact on fundamental systems which contribute to shaping
our society, like the legal system, should be a significant part of any
such undertaking. A quick calculation will show that a project for
provision of computers at every court in India accompanied by
development of appropriate software than some of the other proposals
currently being made. We feel therefore that it is necessary that a
strong plea to the Centre for a comprehensive plan for IT usage in
courts is needed.
Further, computer usage has made sufficient inroads
into private as well as public organizations in India. There are
several visibly successful applications, be it in railway reservations
or department stores or educational institutions. Also India software
developers have been recognised internationally for their talent in
developing software for diverse applications. It is time that these
talents and experience be put to use in developing effective systems for
the important and public-sensitive domain of legal systems.
4. Areas where IT will be useful :
Most
of the bottlenecks identified by Judicial Commissions and Committees
referring to delays, arrears and backlog be partly overcome if a sound
judicial management information system is introduced in India. Case
Management, File Management and Docket Management will be vastly
improved by resorting to the use of computers. In particular, the
following are areas where use of computer will result in enhanced
productivity and reduction of delays.
a) Legal Information Data Bases
b) On line query system for precedents, citations, codes, statutes etc.
c) Generation of Cause List and on line statistical reports
d) On line Caveat matching
e) On line updation of data, monitoring and "flagging" of events
f) Pooling of orders and judgements
g) Daily List generation with historical data of each case
h) Word processing with standard templates including generation of notices/processes
i) Access to international data bases
j) Feed back reports for use of various levels.
The
above are some of the areas where information technology can be
introduced after due preparation. In particular, tracking of cases would
result in better monitoring and control of cases by the Presiding
Officers, rather than by the lawyers.
Computerisation
should be supplemented by the use of Fax, E Mail, Video conferencing and
other facilities for higher productivity and quicker decision making at
all levels.
5. International Practices :
Courts in USA have been
extensively using Information Technology for several years now. In UK,
software development for computers at the subordinate court level has
been developed extensively. For example, the Local County Court
Management System (LOCCS) in use in England has a data base system which
is part of a package called CASEMAN and supports the following judicial
applications :
a) Creates initial court records for registering a case
b) Issues summons and monitors the service of the summons
c) Stores electronic copies of evidence
d) Generates Cause List
e) Updates records
f) Maintains Court Dairy
g) Automatically generates other relevant documents and records
The
Lord Woolf Commission in U.K. has considered the case for use of
Information Technology in the judiciary and has effectively articulated
many aspects of IT usage in its report "Access to Justice" (July 1996).
In
Australia "Cyber Courts" use technology in the legal arena extensively
at all stages and have demonstrated considerable reduction in delays as a
result.
In Singapore the courts manage their time and resources
optimally to achieve an active, efficient and effective case management
process. The use of technology in Singapore courts goes beyond the use
of computers. Occasions for transporting of accused and witnesses in
criminal cases within the country and from outside are greatly reduced
by the use of video cameras in jails and court premises. The Lawnet
Service Bureau is networking with law firms, judiciary and data bases.
Video conferencing is a common feature both within the judiciary and
outside. A key board is provided in each court to the lawyers to make
their written submissions on a real time basis. Their Differentiated
Case Management (DCM) System assigns different management tracks to
different cases in subordinate courts in accordance with the nature and
complexity of each case. The public who visit the courts have also
access to a touch screen by which they know the status of various cases.
This practice promotes transparency and improves accountability.
The
experience of IT usage in these countries, particularly U.K. could
provide very useful pointers and even specific tools and software in
developing systems suitable for India.
6. Preparatory Steps :
The
success of Computerisation of court work depends to a very large extent
on the degree of preparations made. Therefore, any hasty, half-hearted
step should be avoided as they will prove to be counter-productive.
Information
Technology is also more than introducing computers. It should also
reckon with improving communications. Facsimile machines, electronic
mail and other means of swift and reliable communications should be
introduced to synchronise with computerisation.
Before undertaking the major task of introducing widespread IT usage, following questions need to be considered :
a) What is the IT strategy for the judiciary ? How do you integrate technology with the objectives ?
b)
What is a cost-effectuve Management Information System for the
judiciary? What tools can be optimally used for the coordination of
information ?
c) What should be learning process for the judiciary as
well as the administrative staff ? How does one impart hands-on
training to persons who may have hardened views on the subject ?
After
a firm strategy is in place, the next step would be to prepare (a) the
judicial organisation and (b) the human resources in the judiciary, to
commit themselves to the concept. An extensive familiarisation programme
should be launched, aimed at gaining the acceptability of all users. To
begin with, all Presiding Officers should be contacted and the subject
discussed with them in groups. A class room set up at this stage for
Presiding Officers is not desirable. There should be no talk of hardware
and software during this phase.
The judicial organisation should be
prepared simultaneously for the introduction of computers. Source
Documents should be obtained and gone through for source coding, data
entry and connected technical operations. This should be done by a team
of computer professionals. The period during which the manual work would
run simultaneously with computerisation after introduction of computers
should be determined and the phasing out should be free of all hassles.
There will be three stages of computerisation as follows :
a) Planning Stage
b) Development Stage
c) Operational Stage
Training
will be an on-going activity during all the three stages. There will be
a separate Training Plan. Training needs will be analysed soon after
the IT strategy is finalised. The training plan will incorporate
designing and delivering training programmes with a view to achieving
the objectives of the learning process as a whole.
At the Planning
Stage all the applications of Information Technology in the judicial
context will be analysed. The existing data based run by private
agencies would be examined for their reliability and validity.
International practices would also be analysed. A detailed plan would be
arrived at on the various applications of IT in the Indian context and
developing them for the Indian judiciary as an extension of the work
being done in the Supreme Court, High Courts and Bangalore City Civil
Court. There should be compatibility of data among the various systems.
At
the Development Stage, selection of equipment (hardware) and developing
suitable software which will supplement the existing systems would be
decided. The expert team would coordinate their efforts closely with
those who are preparing and coding the data. Staffing requirements would
also be decided at the development stage. Training plans, skills
acquisition and definition of roles would be documented and calibrated.
At
the Operational Stage, the implementation process begins. The plans so
far executed are tested and validated. Intensive coordination is
required at this stage.
Care taken at the preceding stages and
imaginative training to ensure that retentive learning takes place would
underwrite the success of the project as a whole."
25.11 The
aforesaid portion of the Report was the subject matter of discussion in
the National Consultative Activity convened by the Commission on 12 and
13 December 1998 in co-ordination with IIM, Bangalore. The National
Consultative Activity was inaugurated by Hon'ble Mr. Justice B.N.
Kirpal, Judge of the Supreme Court of India and presided over by the
Chairman of the Commission, with Mr. Justice R.P. Sethi, Chief Justice
of the Karnataka High Court and Director of IIM as the Chief Guests.
25.12
Almost all the High Courts represented by their nominee Judges, the
Directors of the Judicial Training Institutes of the States concerned,
Director of National Police Academy, Legal Luminaries, Professors of Law
and Management and Representatives of the Judicial Officers'
Associations participated in the said Consultative Activity. The brief
proceedings of the National Consultative Activity is enclosed as
Annexure-I.
25.13 Pursuant to the decision taken in the said
discussion, the Chairman of the Commission wrote to the Prime Minister
of India as well as to the Chief Justice of India for taking appropriate
action for introduction of IT in the Judiciary.
25.14
The Commission has received reply from Sri N. Seshagiri, Special
Secretary & Director General, National Informatics Centre, Govt. of
India, Planning Commission, New Delhi, stating thus :
"Subject: Inclusion of Subordinate Judiciary in the Information Technology Action Plan.
- - - - -
Under
the District Courts Computerisation and Networking Programme, the
National Informatics Centre (NIC) has already covered implementation of
IT in all the 430 District Courts in the country. NIC has received
satisfactory support from the District Courts. Under this project
considering the availability of funds we could cover up to judges only.
Kindly find the enclosed brochure for further details.
The IT Task
Force - 'Working Group on Citizen Interface' has already considered 'IT
for Judiciary' in its draft report. Further, the resolution passed by
the 'First National Judicial Pay Commission' has been forwarded to the
Working Group for necessary action."
25.15 The reply received is enclosed as Annexure-II.
25.16
We have also received from the Government of India, 'The
Computerisation and Networking Programme for District Courts' as planned
by the Planning Commission. This is also enclosed as Annexure-III.
25.17
After taking into consideration of the discussion and the views
expressed in the National Consultative Activity, IIM, Bangalore has
submitted the Report with its recommendations summarised in the
following terms :
A. Development of Software Package for functional effectiveness
i.
It is recommended that a uniform software package with comprehensive
functionality involving complete aspects of information storage and
processing at District Courts may be developed. These should cover the
following essential stages :
a) Filing of Cases
b) Daily List generation
c) Process Service and monitoring of cases in each court
d) Performance improvement and monitoring systems, and
e) Feedback and reports generation.
ii.
Packages available and being used in subordinate courts abroad may be
studied for guidance in this regard. The recommendations in Lord Woolf's
Report deserve close study. The Task Force should study International
practices and their applicability in the Indian context.
iii.
National Informatics Centre (NIC) has been developing computer networks
for the central and state governments. A comprehensive plan for
installation of hardware and software after carefully evaluating the
requirements should be drawn up. If NIC is unable to devote resources to
develop such a package in short time frame, this could be offered to
software firms in India on a competitive tender basis.
