When litigation self-destructs

Shivaji Sarkar
Government departments must cease to be compulsive litigants. The easy approach of ‘let the court decide’ must be eschewed and condemned. This approach comes with a high financial cost, leads to pendency of cases and demoralises the staff. The employees, at different levels, are also fighting legal battles with the Government, in most cases for arbitrary or biased decisions. In many cases, the employees are told to go to the court to seek redressal or even reinstatement.
These, in most cases, can be done by a judicious and sympathetic approach at the top. But the approach in most cases is ‘to teach a lesson’ or avoid taking a decision. The perpetrator, a high official, goes scot-free and even gets cushy re-employment after retirement, but the employees continue to suffer for life in terms of financial cost and accompanying demotivation.
According to official data, since 1985 up to September 2010, a total of 5,66,706 cases have been filed in the Central Administrative Tribunal (CAT).
The Modi Government, as per a Cabinet Secretary note, has called for curbing litigation. The Supreme Court has passed severe strictures against state-run corporations fighting long battles with one another “at the cost of tax-payers”.
How much is the cost of such litigations? There is no exact estimate, as different departments spend differently and it is not easy to compile the data. Besides, each individual employee also spends a huge sum in terms of fees to lawyers, and courts and other expenses. Even the US Government finds it difficult to assess the costs but says it is huge. A US Government Accountability Office (GAO) investigation report of September 8, 2016, says the cost of lawsuits against the Federal Government, where the plaintiffs win, “cannot be fully determined” because not all federal agencies track their legal expenses.
In India, such cases, not only by Union Government departments and employees but also by State Governments and their employees, certainly costs the nation Rs50 lakh crore to one trillion rupees – all taxpayers’ money. Even at the minimum the Government everyday spends lakhs of rupees on counsel fees that ranges from Rs9,000 to Rs13,500 a day, plus many other expenses ranging from Rs900 to Rs3,000 a day plus pocket expenses. In addition, there are costs for filing cases as also clerkage. The Modi Government’s move can save the country about one-third of the total expenses over Rs30 lakh crore.
The cases, the apex court has observed, are often frivolous. LIC, ONGC and other Government departments regularly approach the courts against various tax demands. These issues can be resolved through negotiations. Over 50 per cent of the cases in higher judiciary pertain to Government appeals, including tax matters.
A March 2016 report of Central Board of Direct Taxes (CBDT) notes that in more than 30 percent tax-related litigations, appeals were filed mechanically, “without appreciation of the maintainability of the issues involved”.
Calling its affairs a “scam”, the Union Law Ministry under Ravi Shankar Prasad has pulled up the Central Agency Section (CAS), which conducts the litigation work in the Supreme Court on behalf of all the ministries and departments of the Union Government.
Nudged by the Prime Minister’s Office, the Law Ministry has sent a 10-page note to the CAS, enumerating various flaws and deliberate omissions which are adversely affecting the Government’s cases in the top court. “The maintenance of the files in the CAS appears to be a scam. If a file gets returned to the CAS on account of postponement of the hearing, the file will never come back to the law officers/panel advocates on the subsequent date. The staff of the CAS will create a facade of non-availability of those files”, the note stated.
Former Additional Solicitor General Bishwajit Bhattacharyya, who retired at the end of his three-year term in November 2012, has published a damning account of his experience in office and said the CAS should be dismantled if the Government wants to stop losing revenue.
Countries like the US have limited mandatory time frames, for example under the US Speedy Trial Act 1974. However, India does not have general statutory time limits comparable to the US law, the Law Commission of India in its July 2014 report noted. This has led to accumulation of over three crore pending cases at high courts.
A committee of the Law Ministry for strengthening the judiciary toward reducing pendency and delays, in 2009, suggested having a National Litigation Policy. It noted that litigation between public sector undertakings was an issue of great concern. If litigation could not be avoided, alternative dispute resolution methods like mediation must be considered.
An analysis of cases disposed of by the Central Administrative Tribunal (CAT) by Krishna Tangirala, legal intern National Law University, Jodhpur, in December, 2013, finds that 40 per cent of the cases were filed by group C employees. “This can be attributed to the lack of avenues available to the lower group employees for the proper redressal of their grievances. This is mainly because of the faulty implementation of the policy of the Government”, Tangirala says. In some cases, employees’ dues are not cleared even a decade after the employees had retired.
About 43 per cent of cases filed even by Group A, B and even C employees sought relief in promotion, pay fixation and increments or anomalies in the implementation of pay commission recommendations. Roughly 20 per cent of the cases prayed for quashing of the suspension orders and reinstatement with full pay and arrears.
In 14 per cent of the cases, the petitioner challenged the selection process, including interviews and examinations. A majority of petitioners in this category were Group A employees. About 13 per cent of the cases filed prayed for the regularisation of services offered by the petitioner, and majority of petitioners in this category were Group-C employees.
Around 51 per cent of the petitions sought relief directly against the existing policy of the Government on suspension, regularisation of temporary and contractual employees or non-implementation of pay panel recommendation.
Almost half, 49 per cent of the cases, were decided in favour of the employees. In most promotion-related cases, the CAT accepted the employees’ plea.
If the ideas of the Modi Government are implemented, it would save not only money but also precious man-hours that are being lost. It would also ensure a healthy atmosphere and is speed up Government functioning.
(The writer is a senior journalist)

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