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Thursday, February 8, 2018

Tirelessly Fighting For Bank Employees

IF SOME ONE FEELS THAT THINGS MAY PROLONG UP TO SLP LEVEL, SHALL WE ABANDON STEPS. PEOPLE HAVING DUBIOUS MINDS  ARE JUSTIFIED IN TELLING THAT OTHERS ARE ALSO DUBIOUS.  ANY SUPPORT GIVE IS OPTIONAL AND THERE IS NO COMPULSION.  NO REASON WHY DETERRING OTHERS FROM PARTICIPATING AND SUPPORTING THE MOVEMENT,  COMMON CAUSE CONSORTIUM MAY BE / MAY NOT BE FILING THE PETITIONS IN ITS NAME.  IT IS SEEKING OTHERS IF THAT IS BEFITTING AS PER THE ADVICE OF THE COUNSELS.  AT ANY RATE THINGS WILL MOVE AND WE WILL WIN.   THIS IS ONE DRAFT PETITION COMPILED TODAY.  ANYBODY CAN TRY IN OTHER COURTS /STATES ? IN OTHER NAMES

(Service- Nationalised Bank- Denial of Pension from the date or retirement to 26.11.2009, levy of unlawful contribution to Pension Fund of the Bank for granting pension and non-revision of pension in derogation of Pension Regulations in force.)
PETITIONER:
V RAJAN BABU, aged 67 YEARS,
EX-SENIOR MANAGER, UNION BANK OF INDIA,
SON OF LATE SHRI.________________, RESIDING AT “AAROODHAM” VENNALA, KOCHI – 682019   

RESPONDENTS:

01.  SECRETARY (BANKING), GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF FINANCIAL SERVICES, “JEEVAN DEEP” BUILDING, PARLIAMENT STREET, NEW DELHI- 110 001

02.  CHAIRMAN & MANAGING DIRECTOR, UNION BANK OF INDIA, CENTRAL OFFICE, 
UNION BANK BHAVAN, VIDHAN BHAVAN MARG, NARIMAN POINT, MUMBAI – 400 021

03.  CHIARMAN, INDIAN BANKS’ ASSOCIATION, 6th FLOOR, TOWER –I , WORLD TRADE CENTER, CUFFE PARADE, MUMBAI - 400005
SYNOPSIS
The Petitioner retired from the services of the second respondent Bank on 20.04.2001as Senior Manager.  The respondent denied him pension on retirement through bad implementation of its Pension Scheme and later started paying it from 27.11.2009 subject to refund of CPF paid on retirement and levy of a contribution of 56 percent of it to its Pension Fund on the basis of a Settlement / Joint Note dated 27.04.2010. A notification in the Gazette dated 06.11.2017 made by the Bank evidences that the contribution to Pension Fund and denial of pension from the date of retirement in the case of the Petitioner were without having enabling provisions.  Similarly, the bank is not granting revision in pension mandated by the regulations to the Petitioner. The Petitioner being a member of the Pension Fund governed by the Pension regulations seeks refund of the amounts unlawfully recovered from him and payment of pension from the date of retirement to 26.11.2009 and revision of his pension from time to time as mandated by the Pension Regulations in compliance with the Pension Regulations by the respondent.
The Petitioner hereinabove most humbly submits that:
1.    He joined the services of the second respondent Bank on ______ and retired as Senior Manager from its _______ branch as Senior Manager on__________.

2.    While he was in the services of the Bank, the Bank introduced a Pension Scheme for the employees for giving them pension in lieu of CPF on the basis of an option by promulgating Union Bank of India  (Employees’) Pension Regulations, 1995 ( “Pension Regulations” for short) the gazette dated 29.09.1995.

3.    In terms of regulation 3 of the Pension Regulations, option for pension had to be availed within 120 days of the notification, i.e. on or before 26.01.1996.  The petitioner could not exercise the option by surrendering his PF balance since there was a rigorous clause under regulation 22 (4) (b) vesting with the bank the power to forfeit the entire past service in case of participation in strike which had wide ramification of losing the new terminal benefit of pension as also the CPF in the event of opting for pension.

4.    On account of demand from unions of employees and associations of officers for removal of the rigorous clause for giving option to those who could not opt for pension on account of the rigorous clause, the first respondent decided to remove it and directed the third respondent vide letter F No.4/8/4/95-IR dated 24.12.1997 to advise member banks including the second respondent to delete the clause and to give effect to the amendment. A copy of the letter dated 24.12.1997 of the first respondent is produced marked as EXHIBIT- P1.

5.    Though the second respondent amended regulation 22 (4) (b) apropos Ext.P1, it disregarded the direction of the first respondent to give effect to the amendment by not giving the option that was mandatory in the wake of the radical change in the offer terms of Pension Scheme to those who could not opt for pension when the deleted clause was present in the regulations, thus defeating the intention and purpose of the amendment. A copy of the gazette notification dated 27 February, 1999 viz. Union Bank of India (Employees’) Pension (Amendment) Regulations, 1998 amending regulations 22 (4) (b), which earlier had the proviso “participation in strike” also as a cause for forfeiture of service is produced marked as EXHIBIT-P2.

6.    The second respondent clandestinely kept the information regarding amendment to regulations 22 (4) (b) in camera for and inordinately long period and published it among employees only on 8thOctober 2002, after a period of 43 months from the date of amendment. The Petitioner who had retired through VRS, 2000 launched by the Bank had no information about the amendment and was sent out on 20.04.2001 by paying CPF in lieu of Pension.

7.    While an option under the Union Bank of India (Employees’) Pension (Amendment) Regulations, 1998 was remaining due to the employees, including the Petitioner, instead of giving it, the first respondent caused the third respondent to sign a Settlement / Joint Note dated 27.04.2010 with unions / associations for extending an option afresh to the employees who could not opt earlier; but on unlawful conditions.  A copy of the Joint Note dated 27.04.2010 made applicable to the Petitioner is produced marked as EXHIBIT-P3.

8.    The unlawful conditions in Ext.P3 included serving employees paying to the Pension Fund of the Bank a contribution to the tune of 2.8 times their revised pay for November, 2007 and agreeing to surrender their CPF balance and retired employees refunding the CPF paid on retirement and 56 percent of it to the Pension Fund of the Bank and retired employees becoming eligible to pension from 27.11.2009 only instead of from the date of retirement. The second respondent issued its Staff Circular No.5690 dated 27.08.2010 incorporating the unlawful conditions of Ext.P3 in it.  A copy of the Staff Circular dated 27.08.2010 of the second respondent is produced marked as EXHIBIT-P4.

9.    The Ext.P4 under clause 3 (2) of it evidences that the first respondent accorded its sanction for implementing the Ext.P3 Joint Note pending amendment to the Pension Regulations. The second respondent, apropos the Ext.P4 granted an option afresh to the Petitioner on the basis of Ext.P3 Joint Note, which was superfluous in the wake of the option due under the Ext.P2 Pension ( Amendment ) Regulations, 1998, collecting from him 56 percent of CPF paid on retirement and paid him pension from 27.11.2009, denying it from the date of his retirement to 26.11.2009.

10.   The contributions to Pension Fund raised from the Petitioner was circumventing regulations 5 (3) and 11 of the Pension Regulations which determined the Bank as the sole contributor to the Pension Fund and the denial of pension from the date of retirement to 26.11 2009 was circumventing regulation 52 (1) of the Pension Regulations which lays down that a pension, becomes payable from the date following the date on which an employee retires.  The regulations 5 (3) and 11 and 52 (1) are as follows:-


Regulation 5 (3): 

The Bank shall be a contributor to the Fund and shall ensure that sufficient sums are placed in it to enable the trustees to make due payment to beneficiaries under beneficiaries under these regulations.

Regulation 11:  Actuarial Investigation of the Fund.

The Bank shall cause an investigation to be made by an Actuary into the financial condition of the Fund every financial year and make such additional annual contributions to the fund as may be required to secure payment of the benefits under these regulations”.

Regulation  52Date from which pension becomes payable:
 (1) “Except in the case of an employee to whom the provisions of regulation 43 or regulation 46 apply, a pension other than family pension shall become payable from the date following the date of which an employee retires.”

11.   In terms of 19.1 and 19.4 of the Act viz. Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970/1980 ( “the Act” ) pursuant to which the Pension Regulations was put in place  as a subordinate legislation, the Board of Directors of the second respondent Bank could make regulations that are not inconsistent with the Pension Scheme, that too through notification in the gazette and any modification or amendment to a regulations could not prejudice what is done earlier under a regulation, the said sections reading as infra:

19 Powers to make regulations 19.1
(1)   The Board of Directors of a corresponding new bank may, after consultation with the Reserve Bank and with the previous sanction of the Central Government by notification in the Official Gazette make regulations, not inconsistent with the provisions of this Act or any scheme made thereunder, to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of this Act.

(4)   Every regulation shall, as soon as may be after it is made under this Act by the Board of Directors of a corresponding new bank, be forwarded to the Central Government and that government shall cause a copy of the same to be laid before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should. not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.

12.  The second respondent was implementing the Ext.P3 Joint Note without amending the Pension Regulations and without giving it force of law by laying in the Houses of the Parliament as evident from the Ext.P4 Staff Circular dated 27.08.2010 and it recently caused Notification No.428 dated 06thNovember, 2010 in the Gazette of India Extraordinary, Part III, Section 4 promulgating the Union Bank of India (Employees’) Pension ( Amendment ) Regulations, 2017 with a view to authenticating the unlawful conditions of the Ext.P3 Settlement / Joint Note.  The true copy of the relevant pages of the gazette Notification dated 06thNovember, 2017 excluding its Hindi version are produced marked as EXHIBIT-P5.

13.  The Ext.P5 Notification is issued in the name of the first respondent by the second respondent at the behest of the third respondent in a mischievous manner. It was not within the competence of the second respondent to issue it in the name of the first respondent.

14.  The Ext.P5 notification opens with a false averment that the Board of the Bank is making the regulations in exercise of the powers conferred vide clause (f) of sub section (2) of Section 19 of the Act when the Board has not powers to make amendments to the regulations which are inconsistent with the Act or which prejudice what is done earlier under a regulation, but the amendments embodied in the Ext.P5 are inconsistent with the Pension Scheme.

15.  The Ext.P5 carries with it an explanatory memorandum with a deposition that the retrospective effect given to the amendments shall adversely affect the interest of no person, notwithstanding that they had wide ramification and were detrimental to the interests of the subjects of the Pension Regulations.

16.  Clause 3 of Ext.P5 notification is suggesting to insert in sub regulation 4 of regulations 3 after its proviso (These regulations shall apply to employees who) “join the Bank on or after the notified date” the proviso “and on or before the 31st day of March, 2010” and has the effect of depriving employees who joined after 31st March 2010 of their statutorily vested coverage of the pension scheme.

17.  Clause 3 (b) of the Ext.P5 notification is suggesting insertions of sub-regulations 3 (11) to 3 (14) under regulation 3 with a view to subjecting the different categories of employees listed under them to the conditions laid down in the Ext.P3 Joint Note when they are one and the same category listed under the other sub regulations who are entitled to join the scheme without compliance with the conditions laid down in the Settlement/Joint Note. The conditions laid down in the Settlement being the contributions of 2.8 times pay for November, 2007 in the case of serving employees /officers and 56 percent of CPF in the case of retired employees /officers to the Pension Fund which are inconsistent with the relative regulations viz. 5 (3) and 11, they are detrimental to the interest of the concerned employees.

18.  The insertion envisaged under clause 8 (b) of the notification viz. Provided that pension including family pension to those who opted to join the Bank Employees’ Pension Scheme on or after the 27thApril, 2010 shall be payable with effect from the 27th November, 2009” is circumventing regulation 52 (1) and is depriving the retired employees of their pension from the date of their retirement to 26thNovember, 2009 to their detriment.

19.  The amendments  shown above in clause 16 to 18 supra brings out categorically that there were no provisions for exclusion of employees who joined the service of the Bank after 31st March, 2010 from the purview of Pension Scheme, for  raising the contributions of 2.8 times pay for November, 2007 from serving employees / officers and 56 percent of CPF paid on retirement from retied employees / officers and for denying pension from the date of retirement to 26.11.2009 till the date of the notification.  These amendments cannot transform into law forever as they are inconsistent with the pension scheme and it thus become conclusive of the fact that the second respondent is guilty of having contemplated these acts without enabling provisions and is bound by the regulations in force to refund the unlawful contributions and to pay pension to the petitioner from the date of his retirement to 26.11.2009, which it denied to him on the basis of the Ext.P3 Joint Note. 

20.  The Petitioner most humbly submits further that the second respondent is not updating his pension notwithstanding the definite provision under regulation 35 (1) of the Pension Regulations, which lays down that “Basic Pension and additions pension, wherever applicable, shall be updated in accordance with the formulae given in Appendix –I”  and  regulations 56 which makes it clear that the Pension Regulations of the second respondent is akin to the Central Civil Pension Rules, 1972  be verbatim stating as infra:

Regulation 56 – Residuary provisions - In case of doubt, in the matter of application of these Regulations, regard may be had to the corresponding provisions of Central Civil Service Rules, 1972 or Central Civil Services (commutation of pension) Rules, 1981 applicable for Central Government employees with such exceptions and modifications as the Bank, with the previous sanction of the Central Government, may from time to time, determine.

The Central Government having not so far permitted any exceptions and modifications, the second respondent is bound to revise the Basic Pension of the Petitioner in tune with the revision in pay bands taking place through each Bipartite Settlement in the same way Central Civil Pension gets revised with the implementation of each Pay Commission accordingly.

In the above circumstances the petitioner has no efficacious remedy than approaching this Hon’ble Court on the following among other:


GROUNDS

A.    An option for pension Is remaining due to the Petitioner under the Union Bank of India (Employees’) Pension (Amendment) Regulations, 1998 which is in force and to be implemented by the respondent.

B.    The conditions of the settlement viz. the contribution of 56 percent of CPF and waiver of pension from the date of retirement are unauthorized by the Pension Regulations till 06.11.2017 and cannot be made into law on account of the prohibition under sections 19.1 and 19.4 of the Act.

C.    The Notification dated 06.11.2017 is issued ultra vires and is unsustainable.

RELIEFS SOUGHT

For these and other grounds to be urged at the time of hearing, it is most humbly prayed that this Hon’ble Court may be pleased to:

1.    Issue a writ of mandamus directing the second respondent to implement the Ext.P2 Pension Amendment) Regulations, 1998 by extending the option due to the Petitioner under it.
2.    To issue a writ of mandamus directing the second respondent to refund to the Petitioner the unlawful contributions to the Pension Fund recovered from him together with interest at 12 percent per annum with yearly rests.
3.    To issue a writ of mandamus to pay to him the pension from the date of his retirement to 26.11.2009 denied on the basis of the Ext.P3 Joint Note together with interest at 12 percent p.a. with yearly rests.


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