REG: PAYMENT OF COMMUTATION ARREARS - THE RECENT ORDERS OF THE SUPREME COURT IN THE CONTEMPT PETITION

[Srinivasa Murti Devulapalli]

Srinivasa Murti Devulapalli
                     

My Dear Friends,

REG:   PAYMENT OF COMMUTATION ARREARS - THE RECENT ORDERS OF THE SUPREME COURT IN  THE CONTEMPT PETITION
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Referring to the above,  I take pleasure to annex here  a communication dated 2^nd December, 2019  addressed by  Sri  Sunder Govind , the former  MD of  SBI   to  Sri  Rajnish, the present  CEO  of SBI,         who happens to be the contemporary colleagues while the former was in service.

Earlier,   Sri Upadhya garu addressed  a  letter dated  25^th. November, 2019  to the CEO - SBI stressing the impending urgency  to honour  the Apex Court’s verdict in letter and spirit to ensure  justice and fair play – (copy annexed herewith)

While responding to the  above letter   of  Sri  P P R Upadhya  from  Mysore,  Sri Sunder Govind- former MD,   made an empathetic appeal  for the cause of the pensioners  through his above letter  dated  2^nd Dec. 2019   to his former colleague  and present  CEO  of SBI viz:- Sri Rajnish , who is also the Chairman of  IBA. 

Under the circumstances,  the communication  now addressed by Sri Sunder Govind garu, being a former MD of SBI, will  have an impact to a greater extent. 

Though the issue  pertains to SBI retirees in specific, I express my deep sense of gratitude to Sri Sunder Govind  garu (being a fromer MD)   for his gesture of  initiative and empathy for the retirees’ cause in general and those of our SBI brethren in specific.

With Greetings and Regards,

“|| यतो धर्मस्ततो जयः ||” IS THE ULTIMATE......

I remain -Yours, 

 దేవులపల్లి శ్రీనివాస మూర్తి/               
DEVULAPALLI SRINIVASA MURTI                                                                                                                                                                     DEC. 04,  2019                                                                                                                                                                                   Ramavarappadu (PO)  :: VIJAYAWADA 521108
0866-2953298 / 998931830

 

Srinivasa Murti Devulapalli <devulapa...@gmail.com>

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Fwd: Pension issues 1 message

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Chandrasekharan Ar <arcse...@gmail.com>	4 December 2019 at 11:40
To: kumar n <k9444...@gmail.com>, ps.m...@ymail.com, kmanoha...@gmail.com, Srinivasa Murti Devulapalli <devulapa...@gmail.com>, deva...@gmail.com, Allamaraju RameshBabu <babu...@gmail.com>
--------- Forwarded message --------- From: Sundar Govind <govi...@gmail.com> Date: Mon, Dec 2, 2019, 20:18 Subject: Fwd: Pension issues To: chairman <chai...@sbi.co.in> Cc: <r.k...@sbi.co.in>, Managing Director (RDB) <md....@sbi.co.in>, dmd.cdo <dmd...@sbi.co.in>, CGM HR <cgm...@sbi.co.in>   Dear Mr Rajnish,                                         One More Respectful Appeal                                    ---------------------------------------------- I am sure you have received  the following mail dated the 25 th November from my esteemed friend and former colleague Mr Ramachandra Upadhyaya.   I hope you paid some attention and read it through.   If not  I beseech you to do so now. Then you will, I am certain, appreciate the continuing injustice and humiliating treatment meted out to its pensioners by the Bank and quickly take and implement measures to alleviate their suffering.   I tend to think that you are personally sympathetic and  are perhaps making some attempts in this direction.However unfortunately there is no evidence of this,since the Bank and you are not acknowledging /replying Mr Upadhyaya.   Common courtesy is to reply, even if you are not in agreement with his submissions, by logically communicating  your interpretations/ explanations. Simply saying the case laws quoted do not pertain to SBI is  not consistent with your/ Banks's exalted  well deserved reputation.   It appears that on pension issues and other matters your legal department entrusted with the responsibility to assist you is   letting you down. As the Chief Executive ultimately you  will be  'left carrying the can'  as it were.   You will appreciate what I say from the following instances  in the public domain:     --SBI, Its Officers And The Law Firm Engaged By Them Are Ignorant Of Basic Principle Of Law: Bombay HC [Read Order] https://www.livelaw.in/news-updates/commercial-capital-sbi-its-officers-and-the-law-firm-engaged-by-them-are-ignorant-of-basic-principle-of-law-bombay-hc-150261#.Xd_xJKuoVeA.whatsapp   --Bank had to tender  an apology to the Court in the commutation case filed by erstwhile SBM officials.   I trust you will agree that there is  urgent need to strengthen your legal team with persons knowing/understanding law specially in pension related matters. It  occurs to me that you can take the assistance of the legal cell of the IBA who clearly stated in their communication dated 3rd April 2018 that the BOB judgement is applicable FOR COMPLIANCE by all Banks who are signatories to the Joint Note/Bipartite settlement dated 14 th December 1999/ 27 the March 2000.   That SBI is a signatory is, I trust, not in dispute and does not need any verification or confirmation.   Thus like the PSBs, SBI has also to comply with the directions of the Supreme Court, as effectively and convincingly argued by Mr Upadhyaya specifically  in paras 4  and 5 of his mail.   A  set of officials of erstwhile SBM seem to have initiated contempt proceedings against SBI also, among others for non compliance with the BOB verdict.   By unreasonably relying on DFS who have always been and continue to be hostile to SBI,  our Bank may  be embarrassed in the Court again.   I most humbly request you to carefully read Mr Upadhyaya's mail with the attention it deserves, take appropriate legal advice and help the pensioners.   You are aware that most of the elderly pensioners have not much time left  to live. Your timely personal intervention and resolution of the matter will earn you much gratitude and blessings.   I send my best wishes to you and your family for a Happy and Healthy New year.   May God be with you in all your endeavours.   Best regards S.Govindarajan former MD   ---------------------------------------------------------------------------                                                                                                                Mysore                                                                                                    25.11.2019     Dear Sri Rajnish Kumar,                             SBI Employees’ Pension Fund Rules                                                          &  Supreme Court Judgment in Bank of Baroda & anr  vs G.Palani &ors. You had in your letter dated 4.4.2018 addressed to Sri.Govindarajan, stated that the Supreme Court's judgment in Bank of Baroda& anr vs     G.Palani&ors (BOB Verdict for short) pertains to the pension regulations applicable to the Public sector Banks (PSBs for short). On the contrary, the Court had held that revision of pension to the employees of the PSBs who retired between 1.4.1998 and 30.4.2005 was done in an arbitrary manner as it was not open to forego the benefits available under the regulations to the officers who retired during the above period and to deprive them of the benefits of the regulations just in the same manner as SBI had deprived its employees too, who had retired during the period mentioned above by depriving them of the benefits of SBI pension regulations, SBI Employees Pension Fund Rules,1955(Rules) framed under Section 50 of SBI Act,1955. Your action in having paid arrears in respect of differential amount in D A, albeit without interest, would suggest that you had admitted that SBI had in fact acted as per the Joint Note dated 14.12.1999 /bipartite settlement dated 27.3.2000. You are, therefore, unjustified in not having complied with the BOB Verdict.   2.Mr.Chairman, all the surviving Pensioners, nay all the employees of SBI, can only be governed by the Rules because your predecessor, Smt. Arundhati Bhattacharya, without applying her mind/perusing facts, committed a gigantic faux pas by making SBI Employees Pension Fund Regulations,2014(SBIEPFR for short) to supersede the Rules, that too, with retrospective effect from 1.7.1955 when in reality, as per the preamble to the Rules, it was clearly stated thus: " In exercise of the powers conferred by Section 50 of the SBI Act,(23 of 1955)[ACT for short], the Central Board of SBI after consultation with RBI and with the previous sanction of the Central Government, hereby make the following regulations, to provide for establishment and maintenance of a pension Fund, for the benefit of the employees of the Bank in pursuance of clause(o) of Sub-section(2) of Section 50 of the ACT, which Regulations shall be known as "SBI Employees Pension Fund Rules." Mr. Chairman, Smt.Arundhati Bhattacharya's action should be perceived as a deliberate and mischievous act, in abuse of the powers conferred by the ACT, more so when the provisions of SBIEPFR contravene the decisions/ directions made by the Supreme Court judgments in V.Kasturi case, and in IBI Pensioners vs SBI. It can also be noticed that in the preamble to the SBIEPFR, “for the benefit of the employees of the Bank in pursuance of clause (o) of Sub-section (2) of Section 50 of the ACT", which appeared in the preamble to the regulations first made, are conspicuous by their absence. Thus, she is also liable to be accused of having made the SBIEPFR with the intention of taking away the benefits conferred by the Rules.   3. In this connection, your attention is drawn to undernoted  decisions of the Supreme Court cited in the BOB Verdict which are equally applicable to the the Rules, which is framed with the authority of law :- a) “There is no estoppel as against the enforcement of statutory provisons. “ Paragraph 29, page 21.   b) “It is also apparent from the decisions of this Court in P. Sadagopan Vs. Food Corporation of India, 1997) 4 SCC 301, that executive instructions cannot be issued in derogation of the statutory Regulations. The settled position of law is that no Government Order, Notification or Circular can be a substitute of the statutory rules framed with the authority of law. In Dr. Rajinder Singh Vs. State of Punjab & Ors. (2001) 5 SCC 482, this Court had reiterated that the settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. In K. Kuppusamy & Anr. Vs. State of Tamil Nadu, (1998) 8 SCC 469, this Court has observed that statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules, does not mean that the rule stood obliterated. Till the rule is amended, the rule applies.” c) It is settled proposition, that pension is not a bounty, as has been held by this Court in Deokinandan Prasad vs. State of Bihar & Ors. 1971 (2) SCC 330 = 1971 Supl. SCR 634, as under: “...But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant….. …..we are of the opinion that the right of the petitioner to receive pension is property under Act. 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Art.19(1)(f) and it is not saved by sub-article(5)of Art.19……...”   4. It is apparent from the contents of paragraphs 4.1 to 4.5 of Annexure I to SBI’s letter CDO/PM/16/SPL/1187 dated 30.10.2002 addressed to the Secretary (Banking &Insurance) that under instructions from MOF/DFS (DFS for short), SBI had amended the Rules ever since 1.11.1987. In paragraph 3 of your letter dated 4.4.2018 addressed to Sri.Govindarajan, you had observed, “….in terms of Section 50 of the SBI Act, the power of the Board to make regulations is subject to consultation with RBI and prior approval of the Government of India.” All the amendments as stated in the Bank’s letter dated 30.10.2002 mentioned above are thus in violation of the ACT as they were carried out without prior consultations with RBI and hence are to be treated as ultra vires. In the light of the decisions of the Court cited in paragraph 3 above also, it should not be in dispute that the instructions of the DFS could not have had any effect on the Rules. Further, the wordings, “if the incumbent became entitled to the benefits of the revised scale of pay, and consequently to the pension calculated on the said basis in terms of the impugned rules…” reproduced from its decision in U.P.Raghavendra Acharya &anr vs State of Karnataka would clearly go to emphasise that revision in pension does not need any amendment as the revised pension needs to be calculated only in accordance with the formula given for computation in the Rules. In paragraph 11, page 8 of the BOB Verdict, the Court had stated, “Pension was required to be determined under the existing Regulations.” The Court, in paragraph 19 of the BOB Verdict ruled, “Thus, in our opinion, the Regulations which were in force till 2003, would apply with full force….” and went on to state in paragraph 34 thus:  “The appeals filed by the Banks are dismissed and the appeal filed by the Association is allowed. Resultantly, let the amount which was due and payable be paid with 9% interest, be calculated and paid within four months from today.”Mr. Chairman is it not clear from the contents of paragraph 3 and this paragraph that all the Pensioners who retired during 1.4.1998 and 30.4.2005 should be paid pension in accordance with the provisions of the Rules to the extent of 50% of their average substantive salary drawn during the last 12 months’ pensionable service?.   5. Mr. Chairman, while it would appear that the BOB Verdict is in respect of a solitary instance of the PSBs  acting in disregard of their Pension regulations, the same cannot be said in the case of SBI as could be inferred from paragraph 2 of SBI’s letter CDO/PM/SM/16/SPL/208 dated 27.4.2015 addressed to The Joint Secretary, Ministry of Finance, GOI; the Bank had stated therein thus: “As a matter of fact our proposal for re-alignment of pension is not only for removing the prevailing anomalies in respect of certain categories of pensioners but also for moving a step forward towards adherence of Pension Regulations.” This statement is a confession made by the Bank that it never adhered to the provisions of the Rules, whereas, the Court had ruled, “Pension was required to be determined under the existing Regulations.” The confession made by the Bank read with the contents of paragraph 2 above would mean that it has become necessary for the Bank to review pension paid to retirees governed by various bipartite settlements and pay the correct value of pension keeping in view the decisions of the Supreme Court contained in V.Kasturi case. Mr. Chairman, vested/accrued rights are rights flowing under the Rules having statutory force. The Supreme Court judgments in IBI Pensioners vs SBI and V.Kasturi case were made keeping in mind the vested/accrued rights flowing from the Rules and hence the Pensioners have derived accrued/vested rights under these judgments. Since there is no time limit for claiming pensionary benefits when the injury caused to the Pensioners is of a continuing nature, it is imperative that you arrange for complying with both the judgments and pay arrears with 9% interest.   6. Mr. Chairman, in paragraph 6 of the Supreme Court judgment in Contempt Petition (C) nos 209-311/2019, with regard to payment of differential commutation of pension, the Court had ruled thus: “There is clear and categorical direction that after the retirement of the petitioners they ought to have been paid the correct value of the pension. Precisely, direction has been made to make the revised correct value of commuted pension that would relate back to the date of the retirement.” Since the Bank, due to its over reliance on the DFS, has the dubious distinction of not having paid correct value of the pension even to a single pensioner, it has now become necessary for the Bank to pay arrears of differential commutation of pension to all the retirees who had availed of commutation from 1.11.1987 till date. Kindly arrange accordingly.   7. Mr. Chairman, you as the head of a sate under article 12 of the Indian Constitution and also as the Chairman of the Board of Trustees, have the responsibility of not only ensuring that the Pension Fund built out of provisions made in accordance with the ACT are disposed of for making pension payments as per the provisions of the Rules but also have the responsibility to obey the Fundamental Rights of Pensioners.. You have not only been trampling the Fundamental Rights of Pensioners but have also been willfully disobeying the Court directions.  As a Public functionary, you are liable to be penalized as per the Supreme Court’s ruling in paragraph of its judgment in Lucknow Development Authority vs M.K.Gupta, which reads thus: “When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.”   8. Mr. Chairman, the Rules have been framed by the Central Board of the Bank with the intent to provide pensionary benefits to its retirees and before the Rules were approved they were perused and approved by the Central Government. In terms of Rules 15, 17, 20 and 22, it is evident that pension is payable immediately one month onwards after an employee retires. Are our Top Management officials inferior in any way to the bureaucrats to seek the views of the latter? Can they not interpret the Rules and Supreme Court judgments with the help of the Bank’s Law department? Is it not demeaning to the Bank to seek permission from the bureaucrats even on uncomplicated and simple matters like payment of pension? Are we not also lowering the institution of the Central Board of the Bank by seeking approval after the Board approves pension as was the case in 26.7.200 to quote an example?   9. Mr. Chairman, non-acceptance of a mistake is not a heroic deed. On the contrary, it reflects flawed devotion to obstinacy. The ‘pink of perfection’ really blossoms in acceptance. I am sanguine that you would be taking appropriate steps to ensure that the just demands of the Pensioners are met by paying their arrears as per the provisions of the Rules and as directed by the Supreme Court in the four judgments discussed above,   With regards and wishing you a happy new year,   Yours sincerely,   P.P.R.Upadhyay UNQUOTE:

 

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d s murti

[JSOMA SHEKARA]

If MD has no courtesy to reply to even former MDs we can imagine how much respect he has for ordinary pensioners.

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