Right to Pension - Fundamental Right
Right to Pension - Fundamental Right
- Aashna, Llyod Law College, Greater Noida
Introduction:-
Old age security plays an important role in a welfare state of a person and one of the old age relieving securities is pension. Pension is a benefit that people get after retirement or their widows even their death. Retirement from a job is itself a new phase of life. It refers to compulsory halting of a service. The term pension is derived from a Latin word “penfen” which means payment. In India, pension is given to the people when they get retirement after completing the term in their respective field. Basically, it is referred to be as a salary post retirement or may be a “defined benefit plan” in which a fixed sum of money is added during an employee’s employment years. In the Indian context, the problem of a rapidly ageing population is significant. Statistics from the 2011 Census show that there are nearly 104 million elderly persons in India, with an upward trend being 84 noted in the elderly population over time. The pension provisions have been placed as a security to old-age. Pension provisions are subsumed under The Employee’s Pension Scheme, 1955. The honourable Supreme Court stated pension to be hard earned benefit which accrues to an employee and is in the nature of “property”. The need of pension to the retirees is very important and they give them a life- award to fulfil their basic needs to live with happiness and no financial struggles. Considering these things in mind the Indian Government has considered the right to pension as a fundamental right under Article 21 of the Constitution of India and as ‘Property’ under article 300-A of the Constitution of India.
Indian Pension System – An Overview:-
India had a long way back tradition of old age support system. The tradition dates back to the 3rd Century B.C when a Dharma shastra named Shukraniti mandated a king to pay half of the wages to the people who had completed forty years of their service. In 1881, after the commencement of British Raj, retirement benefits were provided to the entire public sector working population. Post-independence, several provident funds schemes were also set up to extend the coverage of pension scheme among the private sector as well.
Some of the schemes include:
i.Civil service schemes
ii.Employee’s provident Fund Organization schemes (EPFO)
iii.Occupational Pension Schemes
iv.Public Provident Funds
v.National Old Age Pension Scheme
vi.National Pension Scheme
Legal provisions:-
In India, The Employee’s Pension Scheme, 1955 is meant for members of the Provident Funds subscribing to Employee’s provident Fund Scheme, 1952 or any other scheme valid for getting the pension. The scheme is applicable to all the establishments to which the Employee’s Provident funds and Miscellaneous Provisions Act, 1952 applies. The pension policy is traced as a social policy to the employees to survive their livelihood even after their age of retirement and need not worry about the sustenance in their later stages of life.
Constitutional provision:-
The immunity to provision of Right to pension is provided under Article 300A of the Indian Constitution which states, ‘no person shall be deprived of his property save by authority of law’. The right to get pension is no longer a fundamental right but has been categorised as constitutional right existing under the ambit of Right to property. It protects an individual from interference by the state and strips off a person of the property unless it is in accordance to the procedure established by law. In the State of Jharkhand vs. Jitendra Kumar Srivastava, 2013 the Supreme Court held that pension is not a bounty but a property that cannot be taken away by compliance of due process of law.
Whereas, Article 21 states no person shall be deprived of his life or personal liberty exceptionally to the procedure mandated by law. The article basically secures two human rights:
1.Right to life
2.Right to personal liberty
Article 21 clearly states a right to life does not mean the mere animal existence or a mere act of breathing. It emphasizes on life with dignity and respect. Providing pension post-retirement would basically highlight the following human rights i) right to live with dignity, ii) right to shelter, iii) right to health which would overall help in the economic budgeting hence leading to a fundamental right for a person to demand pension post his/her permanent halting of service as a benefit for their efforts towards a particular profession.
Judicial Approach - Naini Gopal vs Union of India
Background:-
The High Court of Bombay in the case of Shri Naini Gopal v/s Union of India & Ors imposed a cost of Rs. 50,000 on State Bank of India for deducting more than 3 lakhs from petitioner’s account holding that the pension is a property under Article 300 A of the Constitution of India and a fundamental right to livelihood under Article 21 of the Constitution.
Facts:-
The petitioner is a retired Assistant supervisor of the Ordinance Factory at Bhandara. Her basic pension on the date of retirement was fixed at Rs. 1334/-. Consequently, as per the recommendations of 5th, 6th and 7th Pay Commissions the petitioner was entitled to receive basic pension of Rs. 25634/-. In August 2019, the pension’s amount was reduced to Rs. 25,250 by State Bank of India, and a recovery of Rs. 3,69,035/- was ordered by the court from the pension payable to the petitioner. Since, the act of deduction was without the consent of the petitioner an application under Right to Information (RTI) Act, 2005.
Issues Raised/ Legal Issues raised:-
•Whether Bank has authority to deduct the pension amount to recover the excessive amount paid?
•Whether the petitioner has right to get restoration of his pension amount?
•Article-21: Right to Life.
•Article-300A: Right to Property.
Judgement:-
The petition was allowed in the case in light of the stated facts and the court restrained the Bank from recovering any additional amount from the pension payable to the petitioner and also directed the bank to credit Rs. 3,27,045 recovered from the petitioner’s pension account with an additional interest rate of 18% p.a. from the date of recovery of each instalment. It further directed respondent to compensate the petitioner by paying of Rs. 50,000/- attracting costs of Rs. 1000/- for each day’s delay. The court stated the bank liable and noted the action of bank to be arbitrary and unauthorized in violation to principles of natural justice. The court further observed that the principle of pension payable upon superannuation being a ‘property’ under Article 300-A of the Constitution of India and it constitutes a fundamental right to have a dignified livelihood under the ambit Article 21 of the Constitution of India. The deprivation of even small part of amount cannot be undertaken, exceptional to the provisions in accordance with an authority of law.”
Conclusion:-
In a nut shell, Pension is an inseparable part of deferred wage as a matter of right. It is an obligation on the State to promote economic interests and protect the dignified life of its citizens. The high time has now come for the Government to create a separate cell and device a method to provide personal services of providing the financial securities at the door step to the old- aged people, disabled and sick person who are senior citizens so that each and every pension deserving citizen lives their old life post their service life without any financial stress in our country.
REFERENCES:-
1.Government of India, Ministry of Statistics and Programme Implementation, ‘Elderly in India: 2016’ <http://www.mospi.nic.in/sites/default/files/publication_reports/ElderlyinIndia_2016.pdf?download=1>, last accessed on 22 July,2021
2.Pension A Property U/Article 300 And A Fundamental Right to Livelihood U/Article 21: Bombay HC , <http://www.legalservicesindia.com/law/article/1602/10/Pension-A-Property-U-Article-300-And-A-Fundamental-Right-To-Livelihood-U-Article-21-Bombay-HC> , last accessed on 23 July,2021
3.State of Jharkhand vs. Jitendra Kumar Srivastava, (2013) 12 SCC 210 <http://www.supremecourtcases.com/index2.php?option=com_content&itemid=99999999&do_pdf=1&id=45386 > , last accessed on 24 July,2021
4.Devika Sharma, Shri Naini Gopal v/s Union of India & Ors, LD-VC-CW-665 of 2020 <https://www.scconline.com/blog/?p=234761 > last accessed on 21 July,2021
5.Government Of India, Constitution of India, <https://legislative.gov.in/sites/default/files/COI.pdf >, last accessed on 21 July,2021
