Thursday, November 14, 2019

37 A and BSNL VRS 2019


TURNING THE SEARCH LIGHT
37 A and VRS 2019

1.      What is the subject matter for 37 A of CCS Pension Rules 1972?

‘Conditions for payment of pension on absorption consequent upon conversion of a Government Department into a Public Sector Undertaking’ is the subject matter.

2.      How many conditions or Sub Rules in it?

There are 27 sub rules

3.      How many of them applicable to BSNL absorbed employees?

Barring   13-21 other 18 rules are applicable to BSNL absorbed employees

4.      What is the rule that assures Pension formula/ calculation at the time of retirement?

Sub Rule 8 assures pensionary benefits (including commutation, gratuity, family  pension ) on the basis of combined service for the absorbed employee at the time of retirement. The calculation of the amount of pension is as that of CG employee retiring on that day.

5.      What is sub rule 9 then?

The pension of an employee under sub-rule (8) shall be calculated on fifty percent of emoluments or average emoluments, whichever is more beneficial to him.

6.      Dearness relief as per IDA pattern?

Yes, SR 10 assures that.  In addition to pension or family pension, as the case may be, the employee who opts for pension on the basis of combined service shall also be eligible to dearness relief as per industrial Dearness Allowance pattern.

7.      Which rule assures Pension Payment by Govt for absorbed employees on retirement?

Rule 22 (old 21) assures that the pensionary benefits including family pension shall be paid by the Government.

8.      Whether any absorbed employee can go on VR as per 37 A ?

Yes.  Com O P Gupta fought for that and SR 12 was inserted ( old 11 A). A Permanent Government servant absorbed in a Public Sector Undertaking or a temporary or quasi-permanent Government servant who has been confirmed in the a Public Sector Undertaking subsequent to his absorption therein, shall be eligible to seek voluntary retirement after completing ten years of qualifying service with the Government and the Public Sector Undertaking taken together, and such person shall be eligible for pensionary benefits on the basis of qualifying service.

9.      Is there any other rule speaking VR  or  Voluntary retirement benefits on terms?

Sub rule 27 speaks about that. But that is a safeguard measure as envisaged in the SR 26 ,  only under the condition Govt disinvests its equity to the extent of 51 % or more. The specified safeguards as assured in SR 26 shall include option for voluntary retirement or continued service in the undertaking or voluntary retirement benefits on terms applicable to Government employees or employees of the Public Sector Undertaking as per option of the employees and assured payment of earned pensionary benefits with relaxation in period of qualifying service, as may be decided by the Government.

10.   Whether   VRS ‘for reduction of staff Cost’ as one of the conditions finding any place in 37 A rules?

NO.   VR on terms is spoken nowhere except as a measure of safeguard if at all disinvestment to the extent of 51 % or more taking place (refer SR 26 and 27)

11.   Then BSNL VRS 2019 does not find a part of 37 A?

The BSNL VRS scheme is part of revival plan approved by cabinet on 23-10-2019 but not within the purview of all the 27 conditions of 37 A

12.   Whether DOT Om dt 29-10-19 communicating cabinet decisions is speaking 37 A?

The DOT OM is silent on that.

13.  Whether BSNL VRS 2019 is mentioning 37 A ?

Yes. It is mentioning 37 A.

The para 6.1.c   Payment of Exgratia to combined service pensioners absorbed in BSNL under rule 37 A.  Here it identifies the employee as the one absorbed under rule 37 A.

 para 6.2   Speaks about terminal benefits.  6.2. a The employee retiring under the scheme shall be entitled to Pension/ FP, as applicable, w.e.f  the date following the effective  date of VR and shall be authorized as per Procedure. Here there is no mention of 37 A rules.

 Again 37 A is mentioned in 6.2.b I   payment of deferred Gratuity to employee who opted for Combined service pension and were absorbed under rule 37 A. Here the employee is identified as absorbed employee under 37 A. 37 A is used to identify the employee differing from DR employee.

Para 6.2.c   is speaking about ‘eligibility of commutation’ on attaining age of 60 years / 1-2-2025. Here no mention of 37 A either to identify the employee or about eligibility of pensionary benefit including commutation as that of SR 8. But mention of relaxation of rules of 1981 is there. But copy of the modified rules not in public domain.

14.  It seems that BSNL VRS 2019 Scheme and its Paras of annexure 1   are not within the ambit of 37A rules. BSNL/MTNL CMD is vested with powers in case of doubt or ambiguity over the meaning/ interpretation of any of the terms of this scheme. If any such interpretation  comes from the desk of CMD (by his explicit statements)  for clearing the doubts regarding  37 A implications on VRS optees , than One should be thankful for rendering his conscious duty while sending 80000 people from the service of the company that he heads , of course thro VRS 2019 terms.

 15-11-2019 13.00 hrs

Monday, November 11, 2019

BSNL VRS 2019 - Issue of Future Benefits



                                

 BSNL VRS 2019 - Issue of Future Benefits


The BSNL VRS Scheme dt 4-11-2019 assures Terminal benefits as per the following para.

6.2 Terminal Benefits
"In addition to the lump sum compensation or the amount of exgratia as per clause 6.1 of the scheme, the employee voluntarily retiring under the scheme shall be entitled to terminal and other benefits as applicable to the said employee under existing rules. The payment of such benefits shall be made in the following manner:

6.2 a. Pension/ Family Pension: The employee retiring under the scheme shall be entitled to Pension/ FP, as applicable w.e.f the date following the effective date of VR and shall be authorised as per existing procedure"

 Here the 'Existing Procedure"  is not defined in 'Para 3. Definitions' .  'Existing Rules' is defined as per 3 h " means BSNL Rules in force as on the date of notification of the scheme or GOI Rules as applicable to BSNL Employee. Here also 'absorbed employee' is missing.  The other missing point is ‘entitled to Pension/ FP, as applicable that of 37 A'  (as per provisions of 37 A).

8. General Conditions:
"viii The benefits payable under this scheme  shall be in full and final settlement of all claims of whatsoever nature, whether arising under the scheme or otherwise"
"ix) An employee who voluntarily retires under this scheme or his/ her family or legal heirs shall have no claim or compensation except the benefits under the scheme"

para 8 viii needs  elucidation since it speaks 'the benefits' ( that is including terminal benefits) as full and final whether coming out of the scheme or otherwise. The question is whether VRS optees , as absorbed employees as per 37A conditions are going get their pension fixation as per any of the sub rule of 37 A ( SR 8 etc)
or
  as per 6.2.a  “entitled  to pension/FP as applicable w.e.f  the date  following the effective date of VR and shall be authorised as per exiting procedure"

Even 37 A is not having any provision for pension revision but 'pensioners of pre 2007' who got their pension fixation as per 37 A got 'pension revision' on account of wage revision of 2007.

 If 8 viii concludes the benefit of fixation of pension as full and final as per the procedure of 50 % of  last  pay drawn, and if any revision of pension for pre 2017 pensioners on account of pay revision either notionally or actually from 1-1-2017 then applicability of the benefits to VRS optees become questionable, because as there is no change in the last pay drawn, So we need clarification from DOT.

The second point in this regard is whether these VRS optees would get pension revision if any wage revision comes with prospective effect that is either from 1-2-2020 or after. These pensioners also become old pensioners like that of 'pre 2017' pensioners. If the pension fixed by this scheme is treated as full and final, then this becomes a problematic issue.

The silence on the part of DOT and not mentioning 37 A in their OM is adding more apprehensions. The said DOT Om dt 29-10-19 communicating the cabinet approval of Revival plan is speaking only about exgratia  eligibility amount linking that with admissible pension for the remaining period of service and it communicates the approval for postponing commutation as well Gratuity.

As per PIB release dt 23-10-2019
“3. BSNL and MTNL will also offer Voluntary Retirement to their employees, aged 50 years and above through attractive Voluntary Retirement Scheme (VRS), the cost of which will be borne by the Government of India through budgetary support. The ex-gratia component of VRS will require Rs. 17,169 Cr in addition, GoI will be meeting the cost towards Pension, Gratuity and Commutation. Details of the scheme will be finalised by BSNL/MTNL.”

But DOT Om dt 29-10-19 limits its liability with preponed pensionary period only. The para
"2.iii  The payment of ex gratia on VRS (17169 cr) and Preponed pensionary liability ( Rs 12768 cr spread over a period of ten years) is to be supported through budgetary allocation of GOI"

DPE guidelines on VRS dt 20th July, 2018:
9 ii Arrears of wages due to revision etc will not be included in computing the eligible amount

9 v. The compensation under VRS/VSS will be in addition to terminal benefits.
In these paras ‘the eligible amount’, ‘compensation’ both are denoting the Exgratia amount. But this DPE Om is silent about the eligibility of wage revision or pension revision for the VRS optees .

BSNL FAQ dt 7-11-19

Question 4   when pension will start?
Full pension will start w.e.f 1-2-2020 till the time of commutation option is exercised.
Here no mention of 37 A. But  Sr 9 of 37 A only giving this calculation. The following are very important rules of 37 A - Conditions for payment of pension on absorption. Whether the terminal benefit of pension as per the VRS scheme takes the following or not is an important question that needs clarification

 Sr  (8) A permanent Government servant who has been absorbed as an employee of a Public Sector Undertaking and his family shall be eligible for pensionary benefits (including commutation of pension, gratuity, family pension or extra-ordinary pension), on the basis of combined service rendered by the employee in the government and in the Public Sector Undertaking in accordance with the formula for calculation of such pensionary benefits as may be in force at the time of his retirement from the Public Sector  Undertaking or his death or at his option, to receive benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
"Explanation:- The amount of pension or family pension in respect of the absorbed employee on retirement from the Public Sector Undertaking or on death shall be calculated in the same way as calculated in the case of a Central Government servant retiring or dying, on the same day".

(9) The pension of an employee under sub-rule (8) shall be calculated on fifty percent of emoluments or average emoluments, whichever is more beneficial to him.

(10) In addition to pension or family pension, as the case may be, the employee who opts for pension on the basis of combined service shall also be eligible to dearness relief as per industrial Dearness Allowance pattern.

Sr 22 guarantees pension from Govt
(22) Nothing contained in sub-rules (13) to (21) shall apply in the case of conversion of the Departments of Telecom Services and Telecom Operations into Bharat Sanchar Nigam Limited, in which case the pensionary benefits including family pension shall be paid by the Government.

FAQ 13 speaks about eligibility of CGHs for VRS optees covered under rule 37A.  The absorbed covered under 37 A should get all aspects of pension as per the SR of 37 A.
FAQ 3 is again troubling- it is defining 8 ix  in BSNL VRS scheme
(8 ix An employee who Voluntarily retires under this scheme or his/ her family or leagal heirs shall have no claim or compensation except the benefits under the scheme)

The reply given is "No claim after 31-1-2020 shall be paid except as provided in this scheme"
 Unfortunately the term ‘Claim’ is not defined

We need to get some assurance in plain terms from DOT beyond ambiguity about the applicability of all the relevant rules of 37 A  to BSNL absorbed employees should be applicable for the VRS optees also and there should not be any differential footing amongst the BSNL IDA Pensioners when the question of pension revision comes if at all any day in future.

12-11-19  00.30  hrs

Sunday, November 10, 2019

Nov 9 2019 SC Judgement on Ayodhya Dispute Part B to G excerpts


The following are excerpts from Part B to G running  up to 84 pages of 1045 pages




B
44. A wealth of material emerged before the court during the course of the trial. The judgment of Justice Sudhir Agarwal in the High Court copiously tabulates the documentary evidence13. The documentary exhibits of the parties during the course of trial comprised of 533 exhibits
These exhibits broadly comprise of : (i) Religious texts; (ii) Travelogues; (iii) Gazetteers; (iv) Translations of inscriptions on pillars; (v) Reports of Archaeological excavation; (vi) Photographs prior to demolition; and (vii) Details of artefacts found at the disputed site
45…..There is, in other words, no dispute before this Court in regard to the faith and belief of the Hindus that the birth of Lord Ram is ascribed to have taken place at Ayodhya, as described in Valmiki‘s Ramayan. What is being disputed is whether the disputed site below the central dome of the Babri Masjid is the place of birth of Lord Ram. The Muslim parties have expressly denied the existence of a Ram Janmabhumi temple at the site of Babri Masjid. With this background, it becomes necessary to advert to the salient aspects of the documentary evidence which has emerged on the record.
D
47. In 1934, there was another communal incident in the course of which damage was sustained to the mosque which was subsequently restored. The documentary evidence which has been brought on record shows that : (i) The colonial administration sanctioned the work of repair and renovation of the damaged structure of the mosque; (ii) A fine was imposed on the Hindus for the damage which was caused to the mosque; (iii) The work of restoration was entrusted to a Muslim contractor with whom there was an exchange of correspondence over the payment of unpaid bills and for verification of work done; (iv) This was a claim by the Pesh Imam of the mosque over the payment of the arrears of salary with the Mutawalli; and (v) Upon the work of repair, the administration permitted arrangements to be made for commencement of namaz.
48. A series of incidents took place between March and December 1949. On 19 March 1949, a deed was executed by the Panches of Nirmohi Akhara purportedly to reduce into writing the customs of the Akhara. This document25 included the following provision in regard to ―the temple of Janmabhoomi of which the management was claimed to vest in the Akhara: ―Temple of Janam Bhoomi is situate in Mohalla Ram Ghat of City, Ayodhya which is under the Baithak of this Akhara and its whole management is trust upon to this Akhara. It stands in name of Mahant of Akhara as Mahant and Manager. This is the best well reputed, moorty of worship temple of Ayodhya. Being the birthplace of Lord Rama, it is the main temple of Ayodhya. The deity of Shri Ram Lalaji is installed there and there are other deities also.
49…Hence, in this backdrop, it is necessary to set out the events that led to the incident which took place on 22-23 December 1949: (i) On 12 November 1949, a police picket was posted in the area; (ii) On 29 November 1949, Kripal Singh who was the Superintendent of Police at Faizabad addressed a letter to K K Nayar, the Deputy Commissioner and District Magistrate, Faizabad stating: ―I visited the premises of Babri mosque and the Janm Asthan in Ajodhya this evening. I noticed that several ―Hawan Kunds have been constructed all around the mosque. Some of them have been built on old constructions already existing there.
I found bricks and lime also lying near the Janm Asthan. They have a proposal to construct a very big Havan Kund where Kirtan and Yagna on Puranmashi will be performed on a very large scale. Several thousand Hindus, Bairagis and Sadhus from outside will also participate. They also intend to continue the present Kirtan till Puranmashi. The plan appears to be to surround the mosque in such a way that entry for the Muslims will be very difficult and ultimately they might be forced to abandon the mosque. There is a strong rumour, that on puranmashi the Hindus will try to force entry into the mosque with the object of installing a deity. (Emphasis supplied)
(iv) On 16 December 1949, K K Nayyar addressed a communication to Govind Narayan who was Home Secretary to the Government of Uttar Pradesh, stating that there was a ―magnificent temple at the site which had been constructed by Vikramaditya, which was demolished by Babur for the construction of a mosque, known as Babri Masjid. The letter stated that building material of the temple was used in the construction of the mosque and that a long time had elapsed before Hindus were again restored to the possession of a site therein, at the corner of two walls
(v) On the night between 22-23 December 1949, Hindu idols were surreptitiously placed inside Babri Masjid by a group of 50-60 persons. An FIR was lodged, complaining of the installation of idols inside the inner courtyard of the disputed site. The FIR, complaining of offences under Sections 147, 295, 448 of the Indian Penal Code was lodged at 7:00 pm on 23 December 1949 by Ram Deo Dubey, Sub-Inspector in charge. The FIR recorded that on information received from Mata Prasad, Constable No. 7, the complainant had arrived at the disputed site at 7:00 am and learned that a crowd of 50 or 60 persons had broken the locks placed on the compound of the mosque and had placed the idols inside, besides inscribing the names of Hindu deities on the walls. Thereafter, 5000 people had gathered to perform Kirtan. It was alleged that Abhay Ram Das, Ram Shukul Das, Sheo Darshan Dass and about 50 or 60 persons had committed an act of trespass by entering the mosque and installing idols, thereby desecrating the mosque.
(vi) K K Nayyar opposed the direction of the state government to remove the idols, fearing a loss of life. On 25 December 1949, K K Nayar recorded that puja and bhog was offered as usual. In spite of the directions to remove the idols, K K Nayar declined to do so stating that ―if Government still insisted that removal should be carried out in the face of these facts, I would request to replace me by another officer;
E
50. On 29 December 1949, a preliminary order was issued under Section 145 of the CrPC 1898 by the Additional City Magistrate, Faizabad cum Ayodhya. Simultaneously, treating the situation as involving an emergency, an order of attachment was issued and the disputed site was directed to be entrusted to Sri Priya Datt Ram who was the Chairman of the Municipal Board. The order dated 29 December 1949 is extracted below: ―Whereas I, Markendeya Singh, Magistrate First Class and Additional City Magistrate, Faizabad-cum-Ayodhya, am fully satisfied from information received from Police sources and from other credible sources that a dispute between Hindus and Muslims in Ayodhya over the question of rights of proprietorship and worship in the building claimed variously as Babari Masjid and Janam Bhoomi Mandir, situate at Mohalla Ram Kot within the local limits of my jurisdiction, is likely to lead to a breach of the peace. I hereby direct the parties described below namely: (1) Muslims who are bona fide residents of Ayodhya or who claim rights of proprietorship or worship in the property in dispute; (2) Hindus who are bona fide residents of Ahodhya or who claim rights of proprietorship or worship in the property in dispute; to appear before me on 17th day of January at 11 A.M. at Ayodhya Police Station in person or by pleader and put in written statements of their respective claims with regard to the fact of actual possession of the subject of dispute. And the case being one of the emergency I hereby attach the said buildings pending decision.
51. The receiver took charge on 5 January 1950 and made an inventory of the properties which had been attached. The last namaz which was offered in the mosque was on 16 December 1949. The receiver made an inventory of the
following articles: ―1. Idols of Thakur Ji 1-(a) Two idols of Sri Ram Lala Ji, one big and another small. (b) Six idols of Sri Shaligram Ji. 2 . A two feet high silver throne. 3. One idol of Hanuman Ji. 4 (a) One glass of German Silver. (b) One small glass of silver. (c) One big glass of silver 5. One Garun bell. 6. One incensory. 7. One Arti vessel. 8. One lamp stand 9. ―Husra and one sandal. 10. Two big photographs of Ram Janki. 11. Four flower pots. 12. One (small) photograph of Badrinath Ji. 13. One small photograph of Ramchandra Ji. 14. Ornaments of Deity Two caps of Ramlala and one cap of Hanuman Ji. And eight robes of Deity. 15. Building- Three domed building with Courtyard and boundary wall, which is bounded as under. North-Premises comprising Chhathi Courtyard and Nirmohi Akhara. South-Vacant land and ―Parikrama (circumambulation path) East-‗Chabutara‘ (platform) of Ram temple under possession of Nirmohi Akhara, and Courtyard of temple premises. West-Parikrama‘ (circumambulation path) 16. Small brass glass 17. One bowl of ―Phool (an alloy) for sandal. 18. ―Panch Pas and one brass plate. 19. One small brass plate. 20. One small wooden board.
F
(iii) (a) Whether a Hindu temple existed at the disputed site; (b) Whether the temple was demolished by Babur or at his behest by his commander Mir Baqi in 1528 for the construction of the Babri Masjid; (c) Whether the mosque was constructed on the remains of and by using the materials of the temple; and (d) What, if any are the legal consequences arising out of the determination on (a)(b) and (c) above; (iv) Whether the suit property is according to the faith and belief of the Hindus since time immemorial the birth-place of Lord Ram;
(viii) (a) Whether it is open to the Court to determine if the three domed structure which existed at the disputed site prior to 6 December 1992 was a mosque in accordance with Islamic tenets; (b) If the answer to (a) is in the affirmative, whether the three domed structure at the disputed site was constructed in accordance with Islamic tenets;
(xiv) Whether the High Court was justified in passing a preliminary decree for a three way division of the disputed property in equal shares between the Nirmohi Akhara, the plaintiffs of Suit 4 and the plaintiffs of Suit 5;

G

Saturday, November 9, 2019

Nov 9 2019 SC Judgement on Ayodhya Dispute Part A excerpts


The Judgement delivered by the 5 Judges of SC on Ayodhya Dispute is having  A to Q Portions in 1045 pages. The first part A is running to 29 pages .. I tried to give excerpts of that portion to understand the history of the disputed claims as narrated .


PART A

 A. Introduction

1. These first appeals centre around a dispute between two religious communities both of whom claim ownership over a piece of land admeasuring 1500 square yards in the town of Ayodhya. The disputed property is of immense significance to Hindus and Muslims. The Hindu community claims it as the birthplace of Lord Ram, an incarnation of Lord Vishnu. The Muslim community claims it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur. The lands of our country have witnessed invasions and dissensions. Yet they have assimilated into the idea of India everyone who sought their providence, whether they came as merchants, travellers or as conquerors. The history and culture of this country have been home to quests for truth, through the material, the political, and the spiritual. This Court is called upon to fulfil its adjudicatory function where it is claimed that two quests for the truth impinge on the freedoms of the other or violate the rule of law.
2.  The events associated with the dispute have spanned the Mughal empire, colonial rule and the present constitutional regime. Constitutional values form the cornerstone of this nation and have facilitated the lawful resolution of the present title dispute through forty-one days of hearings before this Court.
3. The disputed land forms part of the village of Kot Rama Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar in the District of Faizabad. An old structure of a mosque existed at the site until 6 December 1992…The Hindus assert that there existed at the disputed site an ancient temple dedicated to Lord Ram, which was demolished upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the other hand, the Muslims contended that the mosque was built by or at the behest of Babur on vacant land. Though the significance of the site for the Hindus is not denied, it is the case of the Muslims that there exists no proprietary claim of the Hindus over the disputed property
4. . A suit was instituted in 1950 before the Civil Judge at Faizabad by a Hindu worshipper, Gopal Singh Visharad seeking a declaration that according to his religion and custom, he is entitled to offer prayers at the main Janmabhumi temple near the idols.
5. The Nirmohi Akhara represents a religious sect amongst the Hindus, known as the Ramanandi Bairagis. The Nirmohis claim that they were, at all material times, in charge and management of the structure at the disputed site which according to them was a ‗temple‘ until 29 December 1949
6. The Uttar Pradesh Sunni Central Board of Waqf (―Sunni Central Waqf Board) and other Muslim residents of Ayodhya instituted a suit in 1961 for a declaration of their title to the disputed site. According to them, the old structure was a mosque which was built on the instructions of Emperor Babur by Mir Baqi who was the Commander of his forces, following the conquest of the subcontinent by the Mughal Emperor in the third decade of the sixteenth century. According to them, prayers were uninterruptedly offered in the mosque until 23 December 1949 when a group of Hindus desecrated it by placing idols within the precincts of its three-domed structure with the intent to destroy, damage and defile the Islamic religious structure. The Sunni Central Waqf Board claims a declaration of title and, if found necessary, a decree for possession.
7. A suit was instituted in 1989 by a next friend on behalf of the deity (―Bhagwan Shri Ram Virajman) and the birth-place of Lord Ram (―Asthan Shri Ram Janmabhumi). The suit is founded on the claim that the law recognises both the idol and the birth-place as juridical entities.
8. These suits, together with a separate suit by Hindu worshippers were transferred by the Allahabad High Court to itself for trial from the civil court at Faizabad. The High Court rendered a judgment in original proceedings arising out of the four suits and these appeals arise out of the decision of a Full Bench dated 30 September 2010. The High Court held that the suits filed by the Sunni Central Waqf Board and by Nirmohi Akhara were barred by limitation. Despite having held that those two suits were barred by time, the High Court held in a split 2:1 verdict that the Hindu and Muslim parties were joint holders of the disputed premises. Each of them was held entitled to one third of the disputed property. The Nirmohi Akhara was granted the remaining one third.
10. The disputed site has been a flash point of continued conflagration over decades. In 1856-57, riots broke out between Hindus and Muslims in the vicinity of the structure. The colonial government attempted to raise a buffer between the two communities to maintain law and order by set ting up a grill-brick wall having a height of six or seven feet. This would divide the premises into two parts: the inner portion which would be used by the Muslim community and the outer portion or courtyard, which would be used by the Hindu community. The outer courtyard has several structures of religious significance for the Hindus, such as the Sita Rasoi and a platform called the Ramchabutra. In 1877, another door was opened on the northern side of the outer courtyard by the colonial government, which was given to the Hindus to control and manage. The bifurcation, as the record shows, did not resolve the conflict and there were numerous attempts by one or other of the parties to exclude the other.
11. In January 1885, Mahant Raghubar Das, claiming to be the Mahant of Ram Janmasthan instituted a suit1 (―Suit of 1885) before the Sub-Judge, Faizabad. The relief which he sought was permission to build a temple on the Ramchabutra situated in the outer courtyard, measuring seventeen feet by twenty-one feet. A sketch map was filed with the plaint. On 24 December 1885, the trial judge dismissed the suit, `noting that there was a possibility of riots breaking out between the two communities due to the proposed construction of a temple. The trial judge, however, observed that there could be no question or doubt regarding the possession and ownership of the Hindus over the Chabutra. On 18 March 1886, the District Judge dismissed the appeal against the judgment of the Trial Court2 but struck off the observations relating to the ownership of Hindus of the Chabutra contained in the judgment of the Trial Court. On 1 November 1886, the Judicial Commissioner of Oudh dismissed the second appeal3 , noting that the Mahant had failed to present evidence of title to establish ownership of the Chabutra. In 1934, there was yet another conflagration between the two communities. The domed structure of the mosque was damaged during the incident and was subsequently repaired at the cost of the colonial government.
12. The controversy entered a new phase on the night intervening 22 and 23 December 1949, when the mosque was desecrated by a group of about fifty or sixty people who broke open its locks and placed idols of Lord Ram under the central dome. A First Information Report (―FIR) was registered in relation to the incident. On 29 December 1949, the Additional City Magistrate, Faizabad-cumAyodhya issued a preliminary order under Section 145 of the Code of Criminal Procedure 18984 (―CrPC 1898), treating the situation to be of an emergent nature. Simultaneously, an attachment order was issued and Priya Datt Ram, the Chairman of the Municipal Board of Faizabad was appointed as the receiver of the inner courtyard. On 5 January 1950, the receiver took charge of the inner courtyard and prepared an inventory of the attached properties. The Magistrate passed a preliminary order upon recording a satisfaction that the dispute between the two communities over their claims to worship and proprietorship over the structure would likely lead to a breach of peace. The stakeholders were allowed to file their written statements. Under the Magistrate‘s order, only two or three pujaris were permitted to go inside the place where the idols were kept, to perform religious ceremonies like bhog and puja. Members of the general public were restricted from entering and were only allowed darshan from beyond the grill-brick wall.
13. On 16 January 1950, a suit was instituted by a Hindu devotee, Gopal Singh Visharad5 , (―Suit 1) before the Civil Judge at Faizabad, alleging that he was being prevented by officials of the government from entering the inner courtyard of the disputed site to offer worship. A declaration was sought to allow the plaintiff to offer prayers in accordance with the rites and tenets of his religion (―Sanatan Dharm) at the ―main Janmabhumi, near the idols, within the inner courtyard, without hindrance. On the same date, an ad-interim injunction was issued in the suit. On 19 January 1950, the injunction was modified to prevent the idols from being removed from the disputed site and from causing interference in the performance of puja. On 3 March 1951, the Trial Court confirmed the adinterim order, as modified. On 26 May 1955, the appeal6 against the interim order was dismissed by the High Court of Allahabad.
14. On 5 December 1950, another suit was instituted by Paramhans Ramchandra Das7 (―Suit 2) before the Civil Judge, Faizabad seeking reliefs similar to those in Suit 1. Suit 2 was subsequently withdrawn on 18 September 1990
15. On 1 April 1950, a Court Commissioner was appointed in Suit 1 to prepare a map of the disputed premises. On 25 June 1950, the Commissioner submitted a report, together with two site plans of the disputed premises which were numbered as Plan nos 1 and 2 to the Trial Court.
16. On 17 December 1959, Nirmohi Akhara instituted a suit8 through its Mahant (―Suit 3) before the Civil Judge at Faizabad claiming that its ―absolute right of managing the affairs of the Janmasthan and the temple had been impacted by the Magistrate‘s order of attachment and by the appointment of a receiver under Section 145. A decree was sought to hand over the management and charge of the temple to the plaintiff in Suit 3.
17. On 18 December 1961, the Sunni Central Waqf Board and nine Muslim residents of Ayodhya filed a suit9 (―Suit 4) before the Civil Judge at Faizabad seeking a declaration that the entire disputed site of the Babri Masjid was a public mosque and for the delivery of possession upon removal of the idols. 18. On 6 January 1964, the trial of Suits 1, 3 and 4 was consolidated and Suit 4 was made the leading case
19. On 25 January 1986, an application was filed by one Umesh Chandra before the Trial Court for breaking open the locks placed on the grill-brick wall and for allowing the public to perform darshan within the inner courtyard. On 1 February 1986, the District Judge issued directions to open the locks and to provide access to devotees for darshan inside the structure. In a Writ Petition10 filed before the High Court challenging the above order, an interim order was passed on 3 February 1986 directing that until further orders, the nature of the property as it existed shall not be altered.
20. On 1 July 1989, a Suit11 (―Suit 5) was brought before the Civil Judge, Faizabad by the deity (―Bhagwan Shri Ram Virajman) and the birth-place (―Asthan Shri Ram Janam Bhumi, Ayodhya), through a next friend for a declaration of title to the disputed premises and to restrain the defendants from interfering with or raising any objection to the construction of a temple. Suit 5 was tried with the other suits. 21. On 10 July 1989, all suits were transferred to the High Court of Judicature at Allahabad. On 21 July 1989, a three judge Bench was constituted by the Chief Justice of the High Court for the trial of the suits. On an application by the State of Uttar Pradesh, the High Court passed an interim order on 14 August 1989, directing the parties to maintain status quo with respect to the property in dispute.
22. During the pendency of the proceedings, the State of Uttar Pradesh acquired an area of 2.77 acres comprising of the disputed premises and certain adjoining areas. This was effected by notifications dated 7 October 1991 and 10 October 1991 under Sections 4(1), 6 and 17(4) of the Land Acquisition Act 1894 (―Land Acquisition Act). The acquisition was for ‗development and providing amenities to pilgrims in Ayodhya‘. A Writ Petition was filed before the High Court challenging the acquisition. By a judgment and order dated 11 December 1992, the acquisition was set aside.
23. A substantial change took place in the position at the site on 6 December 1992. A large crowd destroyed the mosque, boundary wall, and Ramchabutra. A makeshift structure of a temple was constructed at the place under the erstwhile central dome. The idols were placed there.
24. The Central Government acquired an area of about 68 acres, including the premises in dispute, by a legislation called the Acquisition of Certain Area at Ayodhya Act 1993 (―Ayodhya Acquisition Act 1993)..Simultaneously, the President of India made a reference to this Court under Article 143 of the Constitution. The reference was on ―(w)hether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janam Bhoomi and Babari Masjid (including the premises of the inner and outer courtyards on such structure) in the area on which the structure stands…
25. All the petitions and the reference by the President were heard together and decided by a judgment dated 24 October 1994. The decision of a Constitution Bench of this Court, titled Dr M Ismail Faruqui v Union of India.. The Constitution Bench declined to answer the Presidential reference and, as a result, all pending suits and proceedings in relation to the disputed premises stood revived
26. The recording of oral evidence before the High Court commenced on 24 July 1996. During the course of the hearings, the High Court issued directions on 23 October 2002 to the Archaeological Survey of India (―ASI) to carry out a scientific investigation and have the disputed site surveyed by Ground Penetrating Technology or Geo-Radiology (―GPR). The GPR report dated 17 February 2003 indicated a variety of ―anomalies which could be associated with ―ancient and contemporaneous structures such as pillars, foundations, wall slabs and flooring extending over a large portion of the disputed site. In order to facilitate a further analysis, the High Court directed the ASI on 5 March 2003 to undertake the excavation of the disputed site. A fourteen-member team was constituted, and a site plan was prepared indicating the number of trenches to be laid out and excavated. On 22 August 2003, the ASI submitted its final report. The High Court heard objections to the report.
27. As one of the judges, Justice Sudhir Agarwal noted, the High Court had before it 533 exhibits and depositions of 87 witnesses traversing 13,990 pages. Besides this, counsel relied on over a thousand reference books in Sanskrit, Hindi, Urdu, Persian, Turkish, French and English, ranging from subjects as diverse as history, culture, archaeology and religion…the innumerable archaeological artefacts were kept in the record room. It received dozens of CDs and other records which the three judges of the High Court have marshalled.
28. On 30 September 2010, the Full Bench of the High Court comprising of Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the judgment, which is in appeal. Justice S U Khan and Justice Sudhir Agarwal held ―all the three sets of parties – Muslims, Hindus and Nirmohi Akhara - as joint holders of the disputed premises and allotted a one third share to each of them in a preliminary decree.
Justice S U Khan held thus: ―Accordingly, all the three sets of parties, i.e. Muslims, Hindus and Nirmohi Akhara are declared joint title holders of the property/ premises in dispute as described by letters A B C D E F in the map Plan-I prepared by Sri Shiv Shanker Lal, Pleader/ Commissioner appointed by Court in Suit No.1 to the extent of one third share each for using and managing the same for worshipping. A preliminary decree to this effect is passed. However, it is further declared that the portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree. It is further directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map. It is further clarified that even though all the three parties are declared to have one third share each, however if while allotting exact portions some minor adjustment in the share is to be made then the same will be made and the adversely affected party may be compensated by allotting some portion of the adjoining land which has been acquired by the Central Government. The parties are at liberty to file their suggestions for actual partition by metes and bounds within three months.
Justice Sudhir Agarwal partly decreed Suits 1 and 5. Suits 3 and 4 were dismissed as being barred by limitation. The learned judge concluded with the following directions: ―4566… (i) It is declared that the area covered by the central dome of the three domed structure, i.e., the disputed structure being the deity of Bhagwan Ram Janamsthan and place of birth of Lord Rama as per faith and belief of the Hindus, belong to plaintiffs (Suit-5) and shall not be obstructed or interfered in any manner by the defendants. This area is shown by letters AA BB CC DD in Appendix 7 to this judgment. (ii) The area within the inner courtyard denoted by letters B C D L K J H G in Appendix 7 (excluding (i) above) belong to members of both the communities, i.e., Hindus (here plaintiffs, Suit-5) and Muslims since it was being used by both since decades and centuries. It is, however, made clear that for the purpose of share of plaintiffs, Suit-5 under this direction the area which is covered by (i) above shall also be included. (iii) The area covered by the structures, namely, Ram Chabutra, (EE FF GG HH in Appendix 7) Sita Rasoi (MM NN OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix 7) in the outer courtyard is declared in the share of Nirmohi Akhara (defendant no. 3) and they shall be entitled to possession thereof in the absence of any person with better title. (iv) The open area within the outer courtyard (A G H J K L E F in Appendix 7) (except that covered by (iii) above) shall be shared by Nirmohi Akhara (defendant no. 3) and plaintiffs (Suit-5) since it has been generally used by the Hindu people for worship at both places.
(iv-a) It is however made clear that the share of muslim parties shall not be less than one third (1/3) of the total area of the premises and if necessary it may be given some area of outer courtyard. It is also made clear that while making partition by metes and bounds, if some minor adjustments are to be made with respect to the share of different parties, the affected party may be compensated by allotting the requisite land from the area which is under acquisition of the Government of India. (v) The land which is available with the Government of India acquired under Ayodhya Act 1993 for providing it to the parties who are successful in the suit for better enjoyment of the property shall be made available to the above concerned parties in such manner so that all the three parties may utilise the area to which they are entitled to, by having separate entry for egress and ingress of the people without disturbing each others rights. For this purpose the concerned parties may approach the Government of India who shall act in accordance with the above directions and also as contained in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).
30. On 10 August 2015, a three judge Bench of this Court allowed the Commissioner, Faizabad Division to replace the old and worn out tarpaulin sheets over the makeshift structure under which the idols were placed with new sheets of the same size and quality.
31. On 5 December 2017, a three judge Bench of this Court rejected the plea that the appeals against the impugned judgement be referred to a larger Bench in view of certain observations of the Constitution Bench in Ismail Faruqui. On 14 March 2018, a three judge Bench heard arguments on whether the judgment in Ismail Faruqui required reconsideration. On 27 September 2018, the three judge Bench of this Court by a majority of 2:1 declined to refer the judgment in Ismail Faruqui for reconsideration and listed the appeals against the impugned judgement for hearing.
32. By an administrative order dated 8 January 2019 made pursuant to the provisions of Order VI Rule 1 of the Supreme Court Rules, 2013, the Chief Justice of India constituted a five judge Bench to hear the appeals….On 26 February 2019, this Court referred the parties to a Court appointed and monitored mediation to explore the possibility of bringing about a permanent solution to the issues raised in the appeals. On 8 March 2019, a panel of mediators comprising of (i) Justice Fakkir Mohamed Ibrahim Kalifulla, a former Judge of this Court; (ii) Sri Sri Ravi Shankar; and (iii) Mr Sriram Panchu, Senior Advocate was constituted. Time granted to the mediators to complete the mediation proceedings was extended on 10 May 2019…Since no settlement had been reached, on 2 August 2019, the hearing of the appeals was directed to commence from 6 August 2019…This Court by its order dated 18 September 2019 observed that while the hearings will proceed, if any parties desired to settle the dispute, it was open for them to move the mediators and place a settlement, if it was arrived at, before this Court. Final arguments were concluded in the batch of appeals on 16 October 2019…In bringing together the disputants on a common platform for a free and frank dialogue, the mediators have performed a function which needs to be commended. We also express our appreciation of the parties who earnestly made an effort to pursue the mediation proceedings.


B

Wednesday, November 6, 2019

BSNL POST VRS - Some Issues


BSNL POST VRS - Some Issues

1.      What is the contingency plan immediately after VRS- who is going to man the services of CSC/ Fault Clearance/BB Provisioning/ Small Exchanges.. Ensure uninterrupted services to customer in order not lose them

2.      Release the Long Term man Power Planning like a. Positional norms for Corporate Office b. For Circle Office  c. For SSA/ BA   d. workload based norms for CMTS- Mtce   e. For CFA- Mtce  f. EB sales etc   g. For installation, Transmission etc  h. Workload based norms for CSCs   i. Norms for non Revenue Circles  etc


3.      Identify the areas where  ‘on Roll’ Employees must work- where out sourcing is needed, taking unions  Associations into confidence

4.       Release if any Organisational Replanning like merger of SSAs/  BA/ Circles/  Telecom mtce Regions/ Project Circles  without affecting the convenience of  customers and their  access , least relocation of employees. NE Transfer area should be within the SSAs,  and Executives within LSA - if at all required .


5.       As per DPE guidelines of Nov 24th 2017, the wage revision is within the ambit of the Cabinet approval of the Revival plan. As BSNL / MTNL got an approved revival plan, wage Revision should be ensured as early as possible after VRS, as VRS already   going on.

6.      Regarding Merger of MTNL, 3 committees viz. Technology integration, Corporate Integration, HR Integration were set up by DOT.  Release the recommendations of those committees.  Take the caution of parliamentary committees about the merger experiences of Air India and Indian Airlines. Form one such (Dharmathikari Committee)   for making smooth integration. Take both MTNL and BSNL unions into confidence.


7.      Before Merger settle and ensure the issues of   Parity - like Pay scales, 78.2,  qualifying years  for promotion and other service conditions like leave rules, medical rules etc. Parity may be at least from the date of Cabinet approval that is from 23-10-19.

8.       Ensure payment of First installment of Exgratia within 15 days of the release of Employees on VRS. The second installment may be ensured before May 2020 or immediately after DFG whichever is earlier.


9.      Ensure functioning of VRS cell/ Desk  till final settlement is made  to all the employees  by BSNL/ DOT atleast  at the level of Circle/ Corporate Office to give confidence to the Optees  that there will be  a mechanism to address and settle their grievances

10.  Dot must issue guidelines immediately to all the CCAs for the speedy settlement of Pension- issuance of PPOs  atleast within two months time on the receipt of the Pension papers from the Units of BSNL. In turn BSNL should issue guidelines in obtaining pension papers within a week time and sending the same immediately by not later than 15 days time.


11.  If at all any decision on 58 was taken by Cabinet on 23-10-19, then that should be communicated by DOT . The issued 29th oct OM of DOT is silent on this matter. Suppression of any cabinet decision is unfair on the part of the Govt. The release of any decision by cabinet on 58 years would help the employees to take informed decision about VRS.  Keeping silence and wait and watch approach  are  unfair Govt/ Administrative practices only.

12.   Ensure that VRS optees can form cooperatives with the help of MOL/ DOT/BSNL so that they can be assigned if willing to carry out the task of fault clearance/ BB provisioning/ Selling Products/ Installation/ Manning small exchanges on sound revenue sharing basis.


13.    Even distribution of workload/ Minimum relocation   of staff should be ensured
14.   Applicability of Fixed Term Contract system  may be studied

15.  If at all contract labours are engaged, strict compliance on norms of CLRA Act should be ensured. Accountability of non adherence should be fixed.


16.  Ensure Monthly payment  on every last working of the month without fail  in the post VRs scenario

17.  Mandatory quarterly revenue awareness meeting with the Unions/ associations/ staff should be conducted in BA/ Circle/ Corporate level to find mechanism to augment revenue. Minutes should be recorded with ATR


18.  Transparent Space Auditing should be conducted before Monetisation for the optimum requirements of BSNL offices/ CSCs/ Exchanges. 

19.  Ensuring Pension revision simultaneously with Wage revision.  Clear  doubts  hanging on the heads of optees without any ambiguity about the eligibility of VRS optees for Wage revision/ Pension revision as any other type of retirees – if at all any in the coming days.


20.  Release “Monetisation Guide Book”  as  one that of AIR INDIA  by incorporating all the relevant rules/ guidelines of GOI to ensure transparency and fair value.

21.   Ensure that all the cabinet decisions that are quantifying the financial support for  BSNL/ MTNL should be qualified by  DOT orders.  Issue guidelines how the proceeds will be credited ,  by whom and for  what requirements of BSNL/ MTNL  in clear terms.


22.  Handover the copy of cabinet note dated oct 22, 2019 and approval copy of the Cabinet for the proposals  projected by DOT to unions and associations.



Issue of 58 years

1.      Cabinet has power to decide about the age retirement to 58 years from 60, but  Govt  /DOT should spell   in writing  that Govt rules are  not  applicable to BSNL absorbed before taking any decision . In the case of MTNL  60 was enhanced as per  DPE orders for PSU . But in the case of BSNL all the absorbed entered  with ‘60  years rules”  as per FR 56 a Govt rules.  Govt should tell in clear terms that FR 56 a is not applicable to BSNL absorbed employees., otherwise the decision if any taken is untenable.

2.        2001 BSNL agreement with NFTE  and other unions  is ensuring 60 years as per Govt rules.


3.      2005 ITS absorption  guidelines  ensure that age of retirement would be  60 - that is as per Govt rules

4.       Though  BSNL  CDA  55 a  is assuring  60 years as retirement age  but  mention of  Govt rules is silent on that


5.       Another hitch is  37 A sub rule 4  :  once options accepted  for absorption, employees cease to be Govt servants  and so applicability of  FR 56 a must be ensured to avoid  58 in BSNL

7-11-19 11.30 am