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Pension A 'Property' U/Article 300 & A Fundamental Right To Livelihood U/Article 21; Bombay HC Imposes 50K Cost On Bank For Deducting Pension Retrospectively

Nitish Kashyap
24 Aug 2020 12:39 PM GMT
Pension A Property U/Article 300 & A Fundamental Right To Livelihood U/Article 21; Bombay HC Imposes 50K Cost On Bank For Deducting Pension Retrospectively
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The Bombay High Court on Thursday imposed a cost of Rs.50,000 on State Bank Of India for deducting more than Rs.3 lakh from 85-year-old pensioner Naini Gopal's account after the bank concluded that an amount of Rs.872 per month was 'erroneously paid' in excess to the petitioner from the October 2007 due to technical error in the system. Court imposed cost towards mental agony and harassment caused by the bank and also for expenses of the said litigation.

Division bench of Justice RK Deshpande and Justice NB Suryawanshi of the Nagpur bench heard the petition filed by the octogenarian after more than Rs.3.26 lakh was deducted from his account and observed-

"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."

Case Background

The petitioner Naini Gopal retired as an Assistant Foreman from the Ordnance Factory at Bhandara with effect from October 1994. The last drawn basic salary of the petitioner was Rs.2,675 and the basic pension was fixed at Rs.1,334. After an 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.

Petitioner approached the High Court and relied upon the letter dated December 4, 2019 addressed to him by the accounts officer of his former employer which states that the pension at the rate of Rs.26,000 has been correctly notified.

Initially, the Court asked the bank 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 and warned that if it is found that the action of the Bank is without any authority, heavy costs will be imposed.

However, in its reply, the bank contended that an amount of Rs.872 per month was erroneously paid in excess to the petitioner from October 2007 due to a technical error in the system. Relying on clause (c) of an RBI circular, the bank claimed to have an authority to recover the excess payment made to the pensioner. It is the further stand taken in the reply filed by the Bank that it has not received any Memo from the respondent employers for enhancement of pension.

Judgment

The bench noted-

"What we find in the present case is that the stand taken by the employer, the competent authority, is very clear and unequivocal in stating that the fixation of pension of the petitioner was correct and proper. The employer has supported the claim of the petitioner and has no role to play in the matter of reduction of pension or its recovery.

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."

Moreover, the bench questioned why no intimation was given to the petitioner for such retrospective deduction-

"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.

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."

Court asserted that the bank has committed a breach of trust by such action and noted-

"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 arrogance and the petitioner was driven from pillar to post to know the reason for deduction of the amount from the pension payable to him."

As per the bank's reply, 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. Referring to the same, the bench observed-

"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."

Before quashing the bank's action of deducting 'excess' pension retrospectively, the bench spoke about the plight of senior citizens and their vulnerabilities-

"We have, however, seen and can take judicial note of the fact that the security of the senior citizens always remain in peril. We have seen the senior citizens anxiously waiting for credit of the pension amount in their account and standing in a queue for withdrawal. Once the amount is withdrawn personally either from the Bank or from the ATM, a serious threat starts posing to the life from the watchdogs roaming around involved in pick-pocketing and stealing.

We have actually seen the old aged persons - men and women, counting the currency with cramping hands and trying to secure the amount at some hidden place in the body. It is then after waiting in the premises of the Bank and taking stock of the situation and the atmosphere with a scared mind and the feeling of insecurity, the escape route and time is chosen to reach their destination safely. It is a high time for the Banks to create a separate cell and to devise a method to provide personal service through the men of confidence, at the door-step to the old aged, disabled and sick persons who are the senior citizens. They have to be treated with respect and dignity. The sensitivity to the problems of the senior citizens need to be addressed."

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