Full Text
HIGH COURT OF DELHI
Date of Decision: 8th September, 2016
SH. MANGAL SAIN SHARMA ..... Petitioner
Through: Mr. M. Dutta and Mr. R. S. Bhalla, Advocates.
Through: Mr. Rajiv Kapur, Advocate.
JUDGMENT
1. Two months after India became independent from the Imperial British Rule, the petitioner was employed by the Imperial Bank of India (for short ‘IBI’), which subsequently became the State Bank of India pursuant to the enactment of the State Bank of India Act, 1955; he served there till his superannuation on 31.07.1988 and his pension was assessed at Rs.1617.75 per month. He has a grievance with the fixation of his pension, which is longstanding and has not been addressed till date.
2. Subsequently, in terms of the Notification/Circular dated 01.01.1987, the pension amount was reassessed at Rs.1513/- per month. The petitioner made representations against the same but to no avail. He relied upon a clause in the Circular dated 01.01.1987, which specifically states that, "However, in respect of IBI Employees, the Pension payable under the 2016:DHC:6398 Revised Rules from 01.01.1987 shall not be less than that payable under the previous Rules." The petitioner, thereafter, pursued his case before the Central Information Commission (for short ‘CIC’) in the year 2007 and subsequently before the Consumer Forum in 2010, evidently under improper advice; and subsequently this writ petition was filed by the petitioner in October, 2012.
3. On the basis of the pension computation sheet, the monthly substantive salary paid to the petitioner for the last five years, i.e., from 17.01.1982 to 16.01.1987 and the pension admissible under Rule 18/23 of the Pension Fund Rules, an amount of Rs.1617.75 was fixed, as pension payable to the petitioner. Instead of the said amount, the petitioner was paid pension at Rs.750/- per month because of the limitation of maximum pension payable under Rule 20 of the Pension Fund Rules of the IBI. Subsequently, the cap of Rs.750/- was enhanced to Rs.2400/- and the petitioner was paid an amount of Rs.1513/- per month under the Circular No.PER/43/88 dated 21.09.1988.
4. The learned counsel for the petitioner submits that the said calculation of Rs.1513/- is erroneous and contrary to the Rules, as Clause 3(ii) of the Notification lifts the ceiling of Rs.750/- to Rs.2400/- per month and provides protection to the employees of the erstwhile IBI to the extent that pension payable under the Revised Rules from 01.01.1987 shall not be less than that payable to them under the previous Rules.
5. Relying on the said circular, the respondent has re-calculated the pension of the petitioner by taking the last drawn pay of Rs.3025/- which has come to Rs.1513/- per month. The respondent has justified the aforesaid fixation of pension by way of his letter dated 17.01.1998, which reads as under:- “With reference to your letter dated 01.11.1997, we have to advise that your Basic Pension has been correctly fixed at Rs.1,513.00 because your average salary for last 12 months i.e. 17.01.86 to 16.01.87 was Rs.3,025.00 half of which comes to Rs. 1512.50 (say Rs.1513.00). As per Bank's instructions, Basic Pension payable shall be least of Pension payable Rs. 1617.75 / half of average salary Rs.1513.00 ceiling of pension Rs.2,400/-. In your case half of the average salary works out to be the least of the three criteria. Therefore, there is no anomaly in the pension and the same has been correctly calculated.”
6. Furthermore, vide another communication dated 10.09.2005, the respondent has intimated the petitioner as under:- “IBI EMPLOYEES PENSION AND GUARANTEE FUND RULES REVISION OF PENSION We refer to your representation dated 16.6.2005 addressed to the Chairman, State Bank of India. In this connection, we advise that your pension was upgraded to Rs 1,513/- p.m. w.e.f. 1.8.88, pursuant to the revision in pension in the year 1989. This revision in pension had a proviso which said that in respect of IBI Employees, the pension payable under the revised rules from 1.1.1986 shall not be less than that payable under the previous rules. Under the previous rules maximum pension payable was Rs 750/- p.m., which was being paid to you. Your contention that your pension should have been fixed at Rs 1,617.78 p.m. is not supported by rules and hence cannot be acceded to.”
7. Pursuant to the letter dated 10.09.2005, the petitioner pursued his grievances before the CIC in the year 2007 and thereafter approached the Consumer Forum in the year 2010, where his application was dismissed as withdrawn. Finally, he approached this Court. The learned counsel for the respondent contends that the writ petition is barred by laches, while the learned counsel for the petitioner submits that the amount of pension is a continuing right and the petitioner does not claim any benefit except for three years prior to the date of filing of the petition. The Court is of the view that the petitioner’s pursuit of the remedies elsewhere was ill-advised and therefore, he cannot be held responsible for the same. The consequences of delay in this case cannot visit the petitioner so precipitately as to prejudice his claim for relief in law. The writ petition was filed in 2012. Should the petitioner succeed, he would at best get the benefit of a revised pension from three years prior to the date of filing of the petition. What then needs to be determined is whether the petitioner is entitled to pension at the rate claimed by him in view of the protection granted to him under Clause 3(ii) of the aforesaid Notification dated 21.09.1988.
8. The learned counsel for the respondent submits that the Rules for calculating pension are placed in Rules 18 to 20 of the IBI Rules, which read as under:-
9. The learned counsel submits that earlier the consideration for calculation of the pension was the average monthly substantive salary drawn during the last five years' for the IBI Employees or three years' pensionable service for the SBI employees. Now, the pension is to be calculated on a uniform basis of the average substantive salary drawn during the last 12 months' pensionable service.
10. The learned counsel for the respondent has relied upon the case of Imperial Bank of India Pensioners’ Association Vs. State Bank of India, AIR 1989 SC 1049, wherein the Supreme Court held that:-
11. The learned counsel for the respondent submits that by virtue of this judgment, the upper limit of pension payable to employees has been fixed at Rs.750/-. This court is not persuaded by the said contention as the factual matrix and reliefs sought in the present case are distinct from those in the aforementioned case. In the case of Imperial Bank of India Pensioners’ Association Vs. State Bank of India (supra), the Supreme Court only looked into the limited question of the need to suitably revise the IBI Employees Pension and Gratuity Fund Rules and Regulations, and did not express any view on the method for the computation of pension under the erstwhile Rules. The Supreme Court observed that the proposed changes should be made effective and consequential adjustments should be made, wherever necessary, in the revised pension-plan.
12. Furthermore, Clause 3(ii) of the Notification clearly provides that in respect of IBI Employees, the Pension payable under the Revised Rules from 01.01.1987 shall not be less than the pension payable under the previous Rules. Therefore, the pension payable would have to be calculated under the old Rules but it would be subject to the maximum payable limit imposed under Rule 20.
13. It is the petitioner’s case that the maximum limit of Rs.750/- under the erstwhile Rules having been revised to Rs.2400/- under the Amended Rules for all employees, hence the petitioner too would get the benefit thereof.
14. The petitioner has sought the re-computation of his pension. Paragraph-2 of the counter-affidavit of the respondent mentions the same as follows:-
15. The petitioner’s application for retirement from service dated 24.05.1988 shows that he had joined service with IBI on 14.10.1947 and retired on 31.07.1988. His pension was fixed at Rs.1617.75 per month and he received his pension for the first time on 01.08.1988. From the abovementioned facts, it is clear that the petitioner was entitled to a pension of Rs. 1617.75 per month. However, prior to the amendment, he was to be paid Rs. 750/- per month in accordance with the payment ceiling imposed under the IBI Rules. The amendment to the Rules raised the payment ceiling from Rs. 750/- to Rs. 2400/- with retrospective effect from 01.01.1987. Therefore, the pension payable to the petitioner on 01.08.1988 must be read in consonance with the revised ceiling of Rs. 2400/- which is deemed to have come into effect from 01.01.1987. In effect, with the restriction for payment of the calculated, entitled and payable sum having been removed, the said amount of Rs.1617.75 should be paid to the petitioner. This Court sees no reason why the petitioner should not receive the pension at Rs. 1617.75 per month as per his entitlement. This petition was filed in October, 2012. Hence, the petitioner would be entitled to benefits of three years earlier thereto. Therefore, the pension to be paid to him would be on the basis of the aforesaid pension computation sheet dated 24.05.1988 by which it was fixed at Rs.1617.75 along with interest @ Rs.8% per annum. It is ordered accordingly.
16. The learned counsel for the petitioner submits that the petitioner is the sole beneficiary of the pension. He is about 90 years old and is stated to be in frail health. His wife is pre-deceased to him and if his retiral dues are not given to him during his lifetime, the entire proceedings would be an exercise in futility. He contends that in the twilight years of his life, if his due pensionary benefits are not released to him it would tantamount to frustrating justice. This should not come to pass. Therefore in view of the above, the respondent is directed to pay the arrears of the pension to the petitioner within six weeks from today.
17. The writ petition is disposed off in the above terms.
JUDGE SEPTEMBER 08, 2016 sb