Given below is a full length communication addressed by PPR Upadhyaya on pension issues. The author is well known for his superb presentation of the issues and that is reflected well in the following narrative giving full coverage of the issues quite meaningfully. The pension community owes him a gratitude. The contents of the message are required to be gone through with requisite attention sharing the same with others. Thanks to KR Saini who provided me the material for the purpose.
My dear Friends,
Report of the Committee constituted by the CentralGovernment (CG) It is highly disturbing to learn that quite a few pensioners would like to jump at the offer made by the abovementioned report as they are too impatient to wait till the Writs filed by the Group of Pensioners (GOP) is decided, which has the potential to be decided soon. In this connection, I would like to request those impatient Pensioners to carefully go through the contents of the following paragraphs before they take any decision in the matter.
2.Why the committee has been set up and would it serve any purpose.? Never in the history, has the management of any institution, of the stature and reputation of the Bank which is also a State under Article 12 of the Constitution and looked upon as a model employer, been meticulously robbing its retirees of their pension for almost three decades, defying settled laws on pension which had ruled pension as a property. In terms of these laws, the Bank should not have withheld even a part of the pension payable to its employees without the due process of law as per provisions of Article 300 A of the Constitution of India. Probably, the Bank with the backing of a few officials of the CG had been intentionally robbing the pensioners without any compunction since they did not foresee that one day, the Right to Information Act would be introduced and their actions would be exposed. The constitution of the committee is therefore a ploy, ill- conceived by both the CG & the Bank to bury their misdeeds in a great hurry in the wake of the order of the Hon’ble Delhi High court dated 9. 2. 2016, vide paragraph 7 ibid, wherein the Court stated, “We direct Mr. Rajiv Kapur, learned counsel appearing for SBI and Mr. Kavindra Gill, learned counsel for Union of India to place before this court the status of the approval which was sought with regard to the pension and commutation to employees who had retired/retire drawing pay and allowances in the revised scales for the above period, within one week from today.” In the same order, in paragraph 6 ibid, the Court wanted to know, “Given the clear mandate of the regulations (which have also been challenged before us), we find no explanation on the record as to what approval was being sought.” None would expect either the Bank or the CG to offer the explanation sought by the Court as both have too many skeletons in their cupboards to hide. If only the Federation had drawn the attention of the Court to its order dated 9.2.2016 and demanded compliance of the order by the respondents, the Writ Petition 1875/2013 could have been decided in favour of the pensioners latest by March 2016. However, it was not to be and the passive approach of the Pensioners’ Federation to the Court’s order was a bit disappointing but was only to be unexpected considering the fact that the Federation never appeared to be enthusiastic in espousing the cause of the 7th bipartite pensioners. Since the Federation did not object to the CG’s offer to decide the Federation’s grievance through a committee, the Bank perhaps thought that the Federation, the plaintiffs in the writ 1875/2013, would agree to the recommendations of the committee which would facilitate closure of the three decade old sordid episode without further probing. The Bank’s false notion in this regard is due to its inability to appreciate the subtle difference between salary and pension. Salary revision is approved by the CG after wage negotiations, whereas, there can be no negotiation between the representatives of the management of the Bank and representatives of working staff federations for determining the quantum of pension, which is payable only as per pension regulation, which has a statutory force. The Pensioners’ Federation has no authority to settle pension issues on behalf of its members, either on the quantum of pension payable or the date from which pensionary benefits can be made available to it members since pension is a property of the pensioners. The RULES/SBIEPFR cannot be replaced by the recommendations of the committee irrespective of whether the Bank accepts them or the CG clears them. As per sub-section 4 of Section 50 of the ACT, any amendment which does not permit a perceptible improvement in the pensionary benefits would be viewed as prejudicial to the validity of the previously done regulation and hence becomes null and void. Thus, the combined ploy of the Bank and the CG to deceive its retired employees must fail. Since pension payable as per the regulation alone is legally accepted as the property of a pensioner, the Bank’s responsibility towards pensioners to pay their pension as per the regulation would continue till the pensioners are paid their legitimate pensionary benefits. The Government committed as it is, to the rule of law, cannot also force the Bank to make payment to its employees, pension as recommended by its committee, if the committee’s recommendations are inconsistent with the terms and conditions of the regulation initially approved by it while framing the regulation. The Bank’s figment of imagination that once the recommendations of the committee, if approved by the CG would be binding on all concerned in view of Section 50 of the ACT can, therefore, only be a myth and cannot be legally valid. The Bank’s eagerness to see that the recommendations of the committee are implemented also exposes its multiple standards. For nearly three decades, it did not feel that it should be bound by the regulation framed by its Central Board as per Section 50 of the ACT, but now, it suddenly it imagines that all concerned would be bound by the committee’s report if approved by the CG.A proper analysis of the entire matter should convince everyone that the report of the committee would not be legally valid and hence, in final analysis, one can conclude that it was one of the attempts jointly made by the Bank and the CG to shield themselves but it should fail!
3.Steps initiated by the GOP to protect the pensionery benefits of the Retirees. A Group of Pensioners (GOP), who were watching the developments in the Writ Petition, with bated breath, decided to stem the unforeseen and unwelcome development narrated in the previous paragraph, swung into action and filed two writs in the Delhi high court against the Bank demanding payment of pension to its employees strictly as per the SBIEPFR with a ceiling of 50% of the average substantive salary drawn during the last 12 months with D.A as approved by the Supreme Court in paragraph 7 of its judgment dated 23.2.1989. The demand made by the GOP also includes payment of family pension uniformly at the rate of 30% of the average substantive salary drawn for all employees (approved by the Apex Court but not implemented by the Bank) and updation of pension which is available to SBI Pensioners since all are governed by the same non-contributory liberalised pension regulation, because of which the Bank has continuing liability to pay pension to its pensioners till their death. Besides the above demands, the GOP is also claiming payment of overdue interest at 18% payable from the date of retirement till the payment of arrears since unnecessary harassment was caused to the pensioners for periods ranging up to three decades. Several Supreme Court judgments have been cited in support of the demands made by the GOP, which cannot be ignored. The Bank has given its counter citing cases, and unwittingly, the Bank has fully supported the contentions of the GOP due to its poor understanding of legal matters. 3.1. The Supreme Court, in its judgment dated 30.4.1985 in Smt.Poonamal vs Union of India, has observed thus: “It is not necessary to examine the concept of pension. As already held by this Court in numerous judgments that pension is a right not a bounty or gratuitous payment, the payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right…… In fact we look upon pension not merely as a statutory right but as the fulfillment of a constitutional promise, inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of underserved want (1)  Supp. SCR 634 (2) [19761 3 SCR 360. Relevant rules merely make effective the constitutional mandate.” 3.2. The Supreme Court in paragraph 33 of its judgment dated 25.2.2008 in Government of Andhra Pradesh vs P.Laxmi, had observed thus: In India the Grundnorm is the Indian Constitution, and the hierarchy is as follows : i)The Constitution of India; (ii) Statutory law, which may be either law made by Parliament or by the State Legislature (iii) Delegated legislation, which may be in the form of Rules made under the Statute, Regulations made under the Statute, etc.; (iv) Purely executive orders not made under any Statute. In paragraph 86 of the same judgment the Apex Court had observed, “The Courts are guardians of the rights and liberties of the citizens, and they will be failing in their responsibility if they abdicate this solemn duty towards the citizens. For this, they may sometimes have to declare the act of the executive or legislature as unconstitutional.” 3.3. In view of what is stated in paragraph 3.2 (supra), SBI Pensioners, being citizens of the country cannot be deprived of the pensionary benefits due to them under the provisions of Articles 14, 16 and 21 guaranteed under the Constitutions of India and their pension cannot also be decided as per the discretion of the CG. It follows that, as decided in the Nakara case, they have the right to demand payment of their pension legitimately due to them taking into consideration the length of service put in by them as per provisions of the RULES/SBIEPFR 3.4.The Pensioners’ attention is also drawn to the Regulation 23(16), in terms of which provisional pension can be paid at the discretion of the Trustees against whom disciplinary proceedings are pending. I am sure that Pensioners would not like to be seen as employees against whom disciplinary proceedings are pending by opting for receiving payment of pension as decided by the committee. Self respect demands that the Pensioners spurn the offer made by the CG which has no locus standi to decide on the quantum of pension receivable by them. The wording of the relative office order issued by the CG in connection with the constitution of the committee would suggest that the Bank has been unreasonably seeking approval for enhancement in pension ceiling after changes in bipartite settlements and also shifting of effective date of revision of ceiling in pension in some case. As if the CG is very generous in showering benefits on the Pensioners, the order states that the committee is set up for making suggestions on the pension issues of SBI and for making improvements in Pension Scheme of retirees of SBI. What a blatant lie! Its generosity has still left the pensioners of 6thbipartite where they were without any improvement in the quantum of pension paid on an arbitrary pay fixed by the CG earlier for pension payable to them. It is indeed shameful on the part of the Bank that it had not denied the CG’s statement that it had not sought any improvement in pension package as stated in its order. It had also not informed the committee that the pay for purpose of pension was arbitrarily fixed by the CG. The net result is that not only the 6th bipartite pensioners but all the pensioners would be denied payment of appropriate D.A and even overdue interest for the undue delay spanning over 2 to 3 decades in settling their demands. What is worse, with the Bank’s connivance, the committee ensured that the disputes and issues, which the Hon’ble High court wanted it to consider, vide its order dated 26.4.2016 were conveniently left out. The CG and the Bank think that the Pensioners are so gullible that they can be hoodwinked by offering some benefits! We, the Pensioners, possessing self-respect and intelligence to understand the game that is being played against us, should have the will to demand and succeed in our just fight to ensure that the Bank pays us the quantum of pension that is payable to us as per the RULES. Friends, we should resist our temptations to meekly surrender and accept whatever may be offered to us. We should not only think of the benefits that might accrue to us immediately which would be a pittance when compared to the updation benefits with other entitlements such as payment of appropriate D.A, ceiling of 50% of the average substantial salary drawn and overdue interest at 18% interest from the date of retirement which cannot be denied to us as per the settled Supreme Court judgments.
4. Friends, the GOP expects that the Writs filed by it would be decided expeditiously in favour of the Pensioners as it had, in its Writs, cited many settled cases in favour of its claims. The Bank asserts in its reply that choosing the cut-off dates arbitrarily is within the domain of Executive powers. Since such pernicious and heinous acts cause discrimination among a group of similarly placed persons, the Supreme Court of India had condemned such acts of discrimination in its judgment dated 23.11.1973 in E.P.Royappa &ors vs the State of Tamilnadu thus: “the basic principle which informs both Arts. 14 and 16 is equality and inhibition against discrimination. This Court further observed as under: From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarchy. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.” The Bank also assertsthat employees retiring on different dates can be treated as members of different class by citing a few Supreme Court cases to support its view. Such audacious assertions can be associated with monarchy and the above cited observation of the Supreme Court applies on all fours to the assertion made by the Bank. Such assertions being made by the Bank even after 30 years of denial of payment of pension to its employees, defying constitutional provisions and settled Supreme Court decisions applicable to Pension matters, may not be appreciated by the High court. Besides, such assertions made by the Bank would mean that it was autocratic in its approach towards its retired employees. Unfortunately, due to its hasty approach, it had failed to verify whether the cited cases are appropriate to the Writs filed by G.O.P.
5. Friends, in the backdrop of the contents of the previous paragraphs it should be obvious that the pensioners would be heavy losers if they were to accept the recommendations of the committee. It would also be advisable for the Federation to discard the committee’s report. Notwithstanding the decision of the Federation, the GOP would pray the Hon’ble Delhi High court to decide the issue strictly as per the RULES/SBIEPFR and Constitutional provisions, all of which are heavily loaded against the Bank.