Pension A ‘Property’ U/Article 300 & A Fundamental Right To Livelihood

It is quite remarkable, most reassuring and so refreshing to note that the Nagpur Bench of Bombay High Court just recently on August 20, 2020 in a latest, landmark and laudable judgment titled Shri Naini Gopal Vs The Union of India and Ors. in Case No. – LD-VC-CW-665 of 2020 has minced no words to hold that, “We need to remind the Bank that the pension payable to the employees upon superannuation is a ‘property’ under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India. The deprivation, even a part of this amount, cannot be accepted, except in accordance with and authority of law.” Shri Naini Gopal, the octogenarian filed the petition after more than Rs 3.26 lakh was deducted from his account. The Nagpur Bench of Bombay High Court imposed a cost of Rs 50,000 on State Bank of India for deducting more than Rs 3 lakh from the account of the 85-year-old pensioner – Shri Naini Gopal. Very rightly so!

                                       To start with, the ball is set rolling by Justice RK Deshpande who authored this historic judgment for himself and Justice NB Suryawanshi of Nagpur Bench of Bombay High Court in para 2 wherein it is observed about the background of this case that, “The petitioner Naini Gopal S/o Dhirendra Mohan Roy is retired as an Assistant Foreman from the Ordnance Factory at Bhandara with effect from 1-10-1994. The last drawn basic salary of the petitioner was Rs. 2,675/- and the basic pension was fixed at Rs. 1,334/- as on 1-10-1994. Consequent upon increase in the pension and the dearness allowance as per the recommendations of the 5th, 6th and 7th Pay Commissions, the basic pension of Rs. 25,634/- was fixed, for which the petitioner was entitled to and accordingly he was paid.” 

                                     While elaborating further, it is then observed in para 3 that, “In the month of August 2019, the basic pension amount of the pensioner was reduced from Rs. 25,634/- to Rs. 25,250/- with effect from 1-1-2016 and accordingly, the respondent No. 3 – the Centralized Pension Processing Centre of the State Bank of India, directed recovery of an amount of Rs. 3,69,035/- from the pension payable to the petitioner in the installments of Rs. 11,400/-, i.e. 1/3rd of the monthly pension with effect from 1-8-2019. The deduction of pension was without the consent or knowledge of the petitioner and, therefore, the petitioner filed an application under the Right to Information Act, 2005 on 1-9-2019 to know the reason for deduction and details as to the revision of pension during the period 2015-16 and 2016-17. In response to this application, the petitioner received the reply on 20-9-2019 from the respondent No. 3 informing that there was excess payment of pension of Rs. 3,69,035/- to the petitioner, which was discovered after making the revised calculations.” 

                                    While illustrating further, para 4 then states that, “The petitioner has, therefore, approached this Court challenging such action and seeking further direction to the respondents to restore the position in respect of payment of pension, prevailing prior to the deduction which commenced from 1-8-2019. Reliance is placed upon the communication dated 4-12-2019 at Annexure-Q to the petition, issued by the Accounts Officer of the employer stating that the pension at the rate of Rs. 26,000/- was correctly notified vide 7th CPC PPO No. 401199400151 (0101).”

                                      To be sure, it is then stated in para 5 that, “Initially, we heard the matter on 30-7-2020, when the following order was passed:

“Hearing was conducted through Video Conferencing and the learned Counsel for the parties agreed that the audio and visual quality was proper.

2) Issue notice for final disposal of the matter, returnable on 10/8/2020.

3) Smt. Sushma, learned Counsel waives service of notice for respondent nos. 1, 2 and 4.

4) We have seen the impugned order dated 14/11/2019 issued by the State Bank of India. We are anxious to know as to whether the State Bank of India has acted on its own or on the basis of instructions issued by any other respondent in the matter. If we find that the action of the Bank is without any authority, we will have to impose heavy costs upon the Bank. Apart from this, if the amount is lying with the personal account of the petitioner, we are also surprised to note as to how the Bank is preventing or not permitting the petitioner to withdraw the amount. If any recovery is to be made, it will be open for the employer to make the same in accordance with law.

5) This order be communicated to the learned Counsel appearing for the parties, either on the e-mail address or on Whatsapp or by such other mode, as is permissible in law.””

               To put things in perspective, the Bench then notes in para 11 that, “It is the stand taken by the Bank that the revised pension of Rs. 9,102/- was payable to the petitioner as a civil pensioner, but the Bank calculated it as Rs. 9,974/- as a personnel below officer rank (PBOR) and thus paid an amount of Rs. 872/- per month in excess from October, 2007. Though we passed an order on 30-7-2020, reproduced earlier, to know the authority of the Bank to question this, we do not find any response to it in the reply filed, particularly when the Bank was knowing the stand of the employer supporting the claim of the petitioner for pension. We are of the view that it is not the authority of the Bank to fix the entitlement of the pension amount of the employees other than the employees of the respondent-Bank. We, therefore, hold that the action of the Bank to reduce the pension of the petitioner is unauthorized and illegal. Furthermore, the Bank has failed to demonstrate any technical error in the calculations.”     

                         While lambasting the Bank’s acts, the Bench then holds in para 13 that, “If the Bank had any doubt about the correctness of fixation of pension, it should have carried the correspondence with the employer and got the clarification. At least, an explanation in respect of the proposed deduction with retrospective effect from October 2007 should have been called from the petitioner. This is the bare minimum requirement of the principles of natural justice. No enquiry or investigation is made before taking the action impugned by the Bank. It is for the first time on 7-8-2020, i.e. after issuance of notice by this Court in the present petition, that the Bank started making enquiries and seeking clarifications from the employer of the petitioner in respect of pension and an assurance is given in the reply that the restoration of pension shall be done, as may be advised by the respondent Nos. 2 and 4, the employers. This exercise, in our view, should have been carried out prior to effecting the deductions from the pension payable to the petitioner. The entire action of the Bank, in our view, is arbitrary, unreasonable, unauthorized and in flagrant violation of the principles of natural justice and cannot be sustained.”  

                              Not stopping here, it is then further held and made amply clear in para 14 that, “The Bank is a trustee of the account of the pensioners, like the petitioner, and has no authority in the eyes of law to dispute the entitlement of the pension payable to the employees, other than those in the employment of the Bank. To tamper with such account and effect the recovery of pension without any authority, is nothing but a breach of trust of the petitioner by the Bank. We should not be understood to have said that even where there is technical error in calculation, other than of entitlement, is committed resulting in excess payment, the Bank cannot recover it. We have already held that no such case is made out here. The petitioner is of 85 years of age and in Para 5 of the petition, it is the claim that he bears a great liability of mentally disabled daughter, aged about 45 years, who has to be looked after mentally and physically, and the costly medical treatment is required to be administered. Instead of showing sensitivity to the problems of senior citizens, the Bank has shown the arrogance and the petitioner was driven from pillar to post to know the reasons for deduction of amount from the pension payable to him. Though we issued notice for final disposal of the matter, keeping in view that the petitioner is a senior citizen and requires immediate attention to his problem, the respondent-Bank has chosen to file only interim submissions on affidavit sworn-in by the Manager, State Bank of India, Medical College Area, Branch Nagpur.” 

                                As it turned out, the Bench then directs and points out in para 15 that, “The Bank has reduced the pension payable to the petitioner from Rs. 9,974/- to Rs. 9,102/- per month and the amount of Rs. 872/- per month is said to have been paid in excess to the petitioner, which is being recovered. In fact, an amount of Rs. 3,26,045/- has already been recovered and the recovery of the balance amount of Rs. 42,042/- is proposed to be made. We, therefore, need to direct the Bank to refund the amount of Rs. 3,26,045/- to the petitioner by crediting it in his pension account with interest at the rate of 18% per annum from the date of deduction till the date of crediting such amount in the account of the petitioner. We have to restrain the Bank from recovering the balance amount of Rs. 42,042/- from the pension account of the petitioner. The Bank is required to be directed to pay the costs of Rs. 50,000/- to the petitioner towards the expenses of this petition, mental agony and harassment, within a period of eight days from today; failing which the further costs of Rs. 1,000/- for each day’s delay shall have to be imposed.”   

                                Most significantly, the Bench then minces no words to say explicitly in para 16 that, “Before parting with this judgment, we need to remind the Bank that the pension payable to the employees upon superannuation is a ‘property’ under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India. The deprivation, even a part of this amount, cannot be accepted, except in accordance with and authority of law.”

                      Before parting, it is then held in para 19 that, “In the result, the petition is allowed and the following order is passed:

(1) The action of the respondent No. 3-Bank in deducting an amount of Rs. 11,040/- per month with effect from October, 2019 is hereby quashed and set aside.

(2) We direct the respondent No. 3-Bank to immediately credit an amount of Rs. 3,27,045/- recovered from the pension account of the petitioner, along with interest at the rate of 18% per annum from the date of recovery of each of the installments, till the date of credit of this amount in the pension account of the petitioner.

(3) The respondent No. 3-Bank is restrained from recovering any amount from the pension payable to the petitioner on the basis of the action, which we have quashed and set aside.

(4) We direct the respondent No. 3-Bank to pay the compensation of Rs. 50,000/- to the petitioner and credit the said amount in the pension account of the petitioner within a period of eight days from today, failing which the additional costs of Rs. 1,000/- for each day’s delay will have to be paid.

(5) We direct the Registry of this Court to forward the copies of this judgment to the Centralized Processing Pension Centres of all the Nationalized Banks and also to the Reserve Bank of India and the Chief Secretary, Government of Maharashtra, to consider the question of constitution of separate cell and role of appropriate guidelines so as to attain the constitutional goal of providing respect, dignity, care, sensitivity, assistance and security to all the pension account holders in the Banks.

(6) This judgment be uploaded under the digital signature of the Private Secretary.”

                           In a nutshell, the Bombay High Court in this case has made it abundantly clear that a pension is a property under Article 300 of the Constitution and this has to be always safeguarded. It also took to task the State Bank of India for not doing its job properly and imposed a cost of Rs. 50,000 for deducting wrongly more than 3 lakhs from the account of 85-year-old pensioner named Naini Gopal as stated above! It also made it amply clear that senior citizens must be treated with due respect and those who are still in service must also themselves realize that they too shall retire one day and on their super-annuation will have to fight similarly for pension and post-retiral benefits! There can be no denying it!

Sanjeev Sirohi

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