Tuesday, May 29, 2018

Analysis Of Supreme Court Judgement In 100% DA


     ALL INDIA BANK RETIREES’ FEDERATION (REGD.)
NOTE ON SUPREME COURT JUDGEMENT ON 100 PER CENT DA FOR
            DISCUSSION IN CORE COMMITTEE MEETING TO BE HELD ON 
                                       2ND & 3RD JUNE 2018 AT DELHI 
1 HISTORICAL PROSPECTIVE/ DEVELOPMENTS IN LEGAL BATTLE ON 100 
   100 PERCENT DA TO PRE NOVEMBER 2002 RETIREES 

  1. Wage settlement was signed in banking industry on 2nd June, 2005 providing  100 per cent DA to all employees and retirees. However those retired prior to November 2002  were denied the benefit of 100 per cent DA.
  2. Aggrieved retirees filed WPs in Madras High Court in 2006 against this discrimination.
  3. Similarly, United Bank of India Retired Employees Welfare Association and some individuals from Kolkata  also filed WP praying for 100 per cent DA to pre- November 2002 as per the provisions of 1993 settlement on pension.
  4. Single Judge Bench of Madras High Court decided in favour of retirees on this issue. However double bench of this court reversed the judgment of single bench and admitted SLP of bank managements thereby deciding the case against the retirees.
  5. In 2013, Retirees from Chennai preferred the appeal against the judgment of   Madras High Court . However, in February, 2017 SLPs filed by retirees were dismissed by the Supreme Court at the admission stage itself. Subsequently, retirees filed Review Petitions which were also rejected by the Court.  In this way, legal battle was virtually lost by the retirees in the matter of 100 per cent DA .
  6. However, luckily, judgment of Kolkata High Court in the single bench  as well as double bench was in favour of retirees giving new hopes to retiree community on legal front.
  7. However, United Bank Management  preferred appeal against Kolkata High Court in Supreme Court in December, 2016.
  8. Along with legal battle being fought by our comrades in different courts, AIBRF was making organisational efforts to achieve this demand right from 2005 as per its policy and object .
  9. There was industry level settlement  in 2010 after 2005 which granted 100 per cent DA to post  November 2002 retirees. This issue could not be resolved despite all organisational efforts as the priority for the organisation was  to achieve one more pension option to the left over retirees which were about 60000 in number. Therefore this demand has to be kept pending.
  10. Again , AIBRF stared renewed efforts to achieve this demand during 10th wage settlement right from 2012. Though it was looking achievable on the basis of positive developments taking place during negotiation process of 2 years. But at the last minute developments , it was not approved by IBA.
  11. Subsequently, Record Note dated 25.05.2015 where we had some hope for achieving this demand was also closed by IBA in the name of absence of mandate from the bank management to do so.
  12. In March, 2107 AIBRF was approached  by UBIREWA to extent support – financial and logistic to handle the case in Supreme Court in view of their limited resources and lack of network in Delhi. Though AIBRF consistent policy has been to make all organisational efforts to achieve the demand, we simultaneously extended required support to the retirees fighting in courts as it was affecting large number of our membership. In view of this we agreed for to give them support and took initiatives to engage advocates for them, incurring legal expenses and handling legal work for them.
  13. As all our organisational  efforts were not bringing desired results immediately, AIBRF in its Indore meeting decided to file Intervention Application in Supreme Court looking to interest of more than 1 lakh retirees.  Accordingly IA was filed by AIBRF in April 2017.
  14. It may be clarified that the case and arguments were basically based on written reply filed by UBIREWA which was drafted, vetted and approved  by the UBIREWA and its advocates.
  15. UBI SLP was argued in Supreme Court on 01.08.2017 by two senior councils engaged by AIBRF on behalf of  UBIREWA and AIBRF. To prepare for hearing on 1.08.2018, we had long discussion with the Senior Council on 29.07.2017 where The General Secretary of UBIREWA, Shri Debesh Bhattachrya was also present and participated in discussion. He was kept fully informed about the development and the case was handled based on the Written Reply submitted by them.
  16. To handle this case , AIBRF constituted committee of Delhi based office bearers namely  Shri D.P.Gupta, VP, Shri A.K Bansal, DGS and Shri Suresh Sharma , organising Secretary along with  GS Shri S.C.Jain. In addition to this many activists from Delhi extended all support to handle the case in Supreme Court. There sincere and continuous efforts in arranging several rounds of meetings  with advocates, preparing documents for filing in courts coordinating with different persons / agencies were really valuable and appreciable and were made with honest and sincere intention to achieve the organisational goals.
  17. AIBRF efforts created new hopes when Supreme Court passed order on 02.08.2017 recalling dismissed SLPs of retirees against the judgment of Madras High Court.
  18. On completion of hearing on 23 August, 2017the judgment was reserved .
  19. The  Judgment  was delivered on 16.05.208 after lapse of more than 8 months.
  20. To our great dismay, disappointment and shock, against our logical and strong hopes the judgment has been  unfavorable for retirees.

2. ANALIYSIS OF THE JUDGMENT

  1. The judgment is delivered on 16.05.2018 by the bench of Justice Arun Mishra and Justice U.U. Lalit  though heard by the bench of Justice Adarsh Goyal and Justice U.U.Lalit as new bench was constituted to deal with labour cases in the intervening period.
  2. It is observed that the judgment lacks logical sequence in dealing the matter, has several contradictions, many vital facts brought through documents were either ignored or misinterpreted etc. They are specifically dealt in following Paras.
  3. Page No. 01- It is stated Civil Appeal No. 5255-5255 of 2018 ( arising out of SLP –Civil Nos. 7368-71 of 2017). Judgment was reserved on 01.08.2017 and  23.08.2017 after the closer of arguments on  SLPs arising out of Kolkata High Court judgment and recalled SLPs arising out of madras High Court Judgment. Therefore it is not clear how  reference of  above 2018 SLPs has been made in the Judgment dated 16.05.2018. No details  of Civil appeal No 5255- 5255 of 2018 are given and how it is connected  with this judgment are dealt with.
  4. Recalled SLPs arising out of  Madras High Court Judgments were heard on 23.08.2017 and the judgment was reserved on them. However, Judgment dated 16.05.2018 is silent  on it  and there is no mention of these SLPs in the judgement . On page no 40( Para 26)  of the judgment it is stated that  decision of Madras High Court has already been confirmed by the Supreme Court. This statement is  very vital inaccuracy and completely contrary to the actual happenings/ facts. Therefore, the judgment is based on inaccurate facts.
  5. Page No. 03- The Court has completely ignored clause no 06 of 1993 which deals with DA as per RBI formula without giving any reasons and upheld appendix II of pension Regulations 1995 which is subject to provisions of clause no 6. In 1995 banks were paying DA on tapering basis to employees as well as all categories of pensioners. In 2005 DA formula was modified in banks as well as RBI. Therefor clause 6 becomes operative and appendix II need to be suitably modified. These vital analysis is completely missing in the judgment.
  6. It was specifically brought out through oral arguments and documentary evidence that there is no specific provision in the settlement dated 02.06.2005 debarring pre-2002 retirees from this benefit. IBA circular dated 28.06.2005 only put a provision to exclude pre-2002 retirees from the benefit. This was merely administrative circular which can not override provisions of the settlement. These facts were neither discussed and mentioned in the Judgment dated 16.05.2018.
  7. Page No. 09- ( Para 7)- It is stated that subsequent settlement dated 27.04.2010 signed after gap of 5 years ratified the instruction to debar pre- 2002 retirees  given in IBA circular dated 28.06.2005 . But there is no mention how such modification with retrospective effect is legally correct.
  8. Page No 12-15- It deals with RBI circulars giving 100 DA benefits to pre- November 2002 retirees with effect from 01.02.2005. No reason was given as to how these developments were not made applicable to bank retirees despite clause of 1993 settlement.
  9. In general all irrational facts and logics of Madras High Court were accepted in Toto in ignorance of logical facts appreciated in Kolkata Judgment-both at single as well as double bench level.
  10. Notes on analysis of the Judgment by Andhra Pradesh State Committee and Comrade N. Sankarsubramaniyam  after comprehensive study of it are enclosed which could be of help for meaningful discussion.

3. FURTHER LEGAL OPTIONS AVAILABLE TO RETIREES

  1. Having lost the case in Supreme Court, the Retirees have two more legal options available to pursue the case in the court. As per provisions of Article 137 of the Constitution, Review petition can be filed for review of the judgment.
  2. Review Petition need to filed within 30 days.  30 days period for our case will expire on 14th June 2018. However, during this period Supreme Court will remain closed for summer vacation, therefore, Review petition can be filed up to 02.07.2018 the date when the courts reopen.
  3. Review Petitions are not heard in open court. They are disposed in Chamber of judges.
  4. After the review petition is dismissed, Curative Petition can be filed. Curative Petition can be filed with the certification of a senior advocate. It is handled by 3 senior most judges and 2 judges of the bench who passed the judgment if available.  The Court can impose exemplary cost to the petitioners if his plea lacks merit.
  5. Detailed Note prepared on procedure for Review & Curative Petitions are enclosed for ready reference of the committee.

4. GROUND REALITIES FOR FILING REVIEW PETITION

  1. Review Petitions are attended by the same bench who passed the judgment.
  2. Rejection Ratio of Review petition is close to 99 per cent . So chances of success are  very low.
  3. In this case,  AIBRF legal position is  as intervener as we filed only IA. Normally Review Petitions are filed by main parties to SLP. However as  AIBRF is affected party, chance can be taken to file  Review Petition.
  4. We find that UBIREWA  has already taken decision to file Review Petition independently  without any consultation and coordination with AIBRF. It looks that they do not feel it necessary at this stage to coordinate with AIBRF for Review despite the fact that AIBRF has invested heavily in handling the case in Supreme Court  in terms of money as well as strong logistic support.
  5. Four Review petitions filed by our comrades from Chennai have already been rejected by the Supreme Court.
  6. On one side aspiration and expectation of large number of retirees are attached with this in particular after AIBRF filing IA and not to pursue  the case legally whatever worth  it is may spread further frustrations and one another side, involving the organisation too much in litigation may have bearing on our organisational image and capacity to handle them in different forum effectively.
  7. It will cost considerable money and efforts for which organisation should be ready .
  8. In case of further losing the legal battle may  give opportunity to some individual to spread emotional outburst against the organisation. This tendency is already seen. Some of our activists are already active in spreading  the general emotional  outburst and messages  circulated by them  are enclosed for the information and knowledge of the committee.

                         Submitted for consideration

                                                                                     ( S.C.JAIN)
                                                                              GENERAL SCRETARY   

  

A NOTE FROM APBRF ON SUPREME COURT JUDGEMENT OF                    
                   100% DA NUETRALISATION CASE


We submit here with the points to be considered for further course of action on the 
Supreme court judgement on Pre-2002 retirees 100% DA case.

Para4 Page 3:

Pension Regulations of Union Bank of india was referred which were amended to filing of SLP:

They must consider the united bank of India Pension regulations but bot Union Bank of India 
which were amended after filing of SLP. In page 7 under para 5 they are quoting amended 
Regulations of Regulation 37 which may be studied. 


Para 10 page 15: 

It was stated that circulars 01-04-2008,01-08-2008 and 01-07-2010 were submitted in support of the 
claim for the relief under in terms of para 6 of the settlement dt.26.10.1193.

The fact is vide circulat dt.01-04-2008 RBI has neutralized DA  to pre 2002 retirees 
WEF 01-03-2008 and the was modified by the circular 01-01-2010 and  DA neutralization 
was effected from 01-02-2005. 

Kolkatta High court accepted the Da neutralization is to be done as per the settlement 
of 29-10-1993 that is as done in RBI. We cannot find any circular dt.01-07-2010 concerning to this matter.


Para 21, Pages 34 and 35:

If Clause 7 (2) of the 9th Bipartite Settlement dated 27.04.2010 is compared with the last 
category of the Appendix  II  of  the  Pension  Regulations,  there  is  hardly  any  change  
in respect  of  retirees  during  the  period  01.04.1998  to   31.10.2002.    
Thus, whatever benefit was conferred and was enjoyable by the employees who retired 
before November 2002 was not taken away.

We never said that any conferred benefit was taken away from us by the 9th Bipartite Settlement.

It is unfortunate that the judges, who compared 9th BPS with Pension Regulations, did not compare 
Pension Settlement dated 29th October, 1993 with Pension Regulations, to find out why Clause No. 6 
of the Settlement which reads:
“6. Dearness relief to pensioners will be granted at such rates as may be determined 
from time to time in line with the dearness allowance formula in operation in Reserve Bank of India.” 
was not incorporated in the Pension Regulations.

========================================================================

Para 22, Page 35:

Theoretically, the starting level for the retirees prior to 01.11.2002 is at a higher level of 0.24% as against 
the retirees after 01.11.2002.    It could possibly be said that for those who are with basic pension in the region 
of Rs.6000/-, on the basis of a tapering formula  may  well, in  the  ultimate  analysis,  average  to the  same  level of 0.18%.

The DA percentages (per slab) of 0.24 under 7th BPS and 0.18 under 8th BPS are not comparable.  
0.24% is calculated on construction of Basic Pay at CPI Index of 1684 under 7th BPS; and 0.18% is 
calculated on construction of Basic Pay at CPI Index of 2288 under 8th BPS.

It is an unrelated argument that tapered DA under 7th BPS (from 0.24% to 0.06%) for basic pay i
n the range of Rs. 6,000 ultimately averages to 0.18%.               

0.18% under 8th BPS has nothing to do with tapering of DA under 7th BPS from 0.24% to 0.06%


Para 23, Pages 36, 37:

But  such  calculation  completely  disregards  that  rate  which  is  a  flat  rate  applicable in case of post 01.11.2002 retirees is not 0.24% for the entire  amount of basic pension but at a different level of 0.18% and the threshold  requirement of quarterly average of the Index is also different.  If we were to  simply  borrow  the  same  rate  of  0.18%  in  the  case  of  retirees  prior  to 01.11.2002,  the  concerned  retirees  may  well  be  at  a  disadvantage.   For instance, the basic pension of Rs.7880/- of said Santipriya Roy would yield a figure of Rs.14184/- with flat rate of 0.18%. It will not therefore be correct to adopt and apply the same rate as is made applicable in case of post 01.11.2002 retirees.   What is prayed for is also not the same rate but the same  principle,  namely,  flat  rate  be  made  applicable  to  pre  01.11.2002 retirees as well but at a rate of 0.24%.


The DA percentages (per slab) of 0.24 under 7th BPS and 0.18 under 8th BPS are not comparable.  0.24% is calculated on construction of Basic Pay at CPI Index of 1684 under 7th BPS; and 0.18% is calculated on construction of Basic Pay at CPI Index of 2288 under 8th BPS.

The DA (per slab) of 0.18% is on a higher basic pay that was fixed at CPI Index of  2288 under 8th BPS; whereas the DA (per slab) of 0.24% is on a lower basic pay that was fixed at CPI Index of 1684 under 7th BPS.

Therefore, we cannot compare 0.24% of 7th BPS with 0.18% of 8th BPS; and say retirees under 7th BPS would gain, and retirees under 8th BPS would lose if 100% DA neutralization is given to 7th BPS retirees.

‘Borrowing’  the rate of 0.18% from 8th BPS and applying it to 7th BPS retirees is a meaningless concept.  

As rightly observed by the judges, what is prayed for by us is not application of same rate of 0.18% of 8th BPS; but application of 7th BPS rate of 0.24% uniformly to the entire basic pay.



Para 24, Page 37:

The benefit which is sought to be conferred by the tapering formula lies in
the averaging which comes to near about the same quantum as is given to
the post 01.11.2002 retirees.  

This is a meaningless concept. 7th BPS never sought to give an average of 0.18% by tapering DA from 0.24% to 0.06%.  At the time of 7th BPS, there was no figure of 0.18% at all.  It came, on calculation, at the time of 8th BPS, at the CPI Index of 2288.  Had the 8th BPS taken place at some other CPI Index level, the DA per slab would have been some figure other than 0.18%.

=========================================================

Para 24, Page 37:

It is noteworthy that no illustration has  been  placed  on  record  to  submit  that even  with  0.18%  dearness allowance   those   who   retired   after   November   2002   walk   away with substantially greater advantage as against pre November 2002 retirees.

It is amusing to see this statement.  It does not need any illustration to show that 0.18% flat DA rate on entire basic pay under 8th BPS is a greater advantage than tapered DA from 0.24% to 0.06% under 7th BPS.  If necessary, an illustration can be easily made out and shown.  

We can show them an illustration how a retiree under 8th BPS would have got his pension with tapered DA from 0.18% to some lower levels.

========================================================================

Para 24, Page 38:

If we adopt a flat rate of 0.24% as is being prayed for, the class of retirees who retired before 01.11.2002 will stand conferred better rate than those employees who retired after 01.11.2002. Nor can we apply a flat rate of 0.18% for them.

Applying flat rate of 0.18% to 7th BPS retirees is meaningless; and is not prayed for. 

Flat rate of 0.24% for 7th BPS retirees cannot be said a BETTER RATE.  The absolute figure of 0.24% may look higher.  But, as stated above, these rates are not comparable in absolute terms.  They must be read along with the levels of basic pay under the two settlements.  

Flat rate of 0.24% for 7th BPS retirees only brings them on par with 8th BPS retirees; of course, not in terms of amounts, but in terms of equity and natural justice. That is what we are paying for.

========================================================================
Para 24, Page 38:

Both classes are distinct and do not form a homogenous group. It is not a case of creating a class within a class.

It is not correct to say that retirees under 7th BPS and 8th BPS do not form a homogenous group.  This is clearly against the spirit of  Nakara  case.

Para 24, Page 38:

It would be extremely difficult and hazardous to adopt a flat rate as is sought to be projected.

There is no difficulty or hazard in adopting a flat rate of DA for 7th BPS retirees. The judges have not elaborated the basis for calling it ‘extremely difficult and hazardous’.

=========================================================

Para 25, Pages 38, 39:

…the decision of this Court in D.S. Nakara  (supra)  is  one  of  limited application  and  there  is  no  scope  for enlarging  the  ambit  of  that  decision  to  cover  all  schemes  made  by  the retirees or a demand for an identical amount of pension irrespective of the date of retirement.

We are not asking for ‘identical amount of pension irrespective of the date of retirement’.  This is a sweeping and damaging statement.  We are only asking for application to us of the same formula being applied to 8th BPS retirees.  

Nakara  case clearly states that although new schemes of  benefit cannot be claimed by past retirees, any improvements in the existing schemes shall be made equally applicable to past retirees also.  

=========================================================

Para 25, Page 39:

The settlement has to be taken  as a  package  deal  and it  would be  impossible  to  hold certain parts good and acceptable while finding other parts to be bad.

By saying that the settlement is a package deal, it cannot be concluded that the settlement is beyond any correction.  

For example, the provision that basic at 1616 only ranks for pension was found to be unfair; and the same was corrected by the Supreme Court.  The concept that ‘the settlement is a package deal’ did not stop the court from correcting this unfairness.

=========================================================
Para 25, Page 39:
… a package deal was entered into and Rs.1288 crores  per  annum  towards  all  the  benefits  was  set  apart  for  the  benefit  of the employees.  Any stepping up of benefit for a section of employees is bound to inflate the figure of Rs.1288 crores per annum though that by itself is not a ground that weighs with us.

The course of  bipartite negotiations and the constraint of Rs. 1288 crores set apart by banks cannot be a matter of consideration for the Court.  

To fit the cost of the Settlement into the offer of IBA, discrimination cannot be played to the detriment of some people within the same class.  This amounts to hitting the Nakara judgment squarely in its heart.

The Court itself does not seem to be convinced of their own statement and therefore said “… though that by itself is not a ground that weighs with us”.  If this was not a ground that weighed with them, they should not have made this point at all.

Para 25, Page 39:

In our view both the categories of retirees, namely, pre November 2002 and post November, 2002  stand on different footing, …

This is a sweeping remark.  We never say that 7th BPS retirees and 8th BPS retirees stand on the same footing  in all respects.  In the present context of applying the same principle for calculation of DA, they stand on the same footing, and they form a homogenous group.


Para 26, Page 40:

… the Bipartite Settlement did not create any distinction which was inconsistent with the principles laid down by this Court.

The way in which 100% DA neutralization was given by 8th and 9th BPSs for only those who retired on or after 01.11.2002, denying it to those who retired earlier, is clearly inconsistent with the principles laid down by Supreme Court in Nakara case, which said:

“The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved.

If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who, retired earlier cannot be worse off than those who retire later.”




NOTE TO AIBRF ON FURTHER COURSE OF ACTION ON 100% DA ISSUE
After the recent Supreme Court judgment in the UBI case, there are suggestions from pensioners that UFBU should be approached and requested for getting 100% DA, at least from a prospective date. My personal view is that even if UFBU pursues the request with all sincerity, IBA is likely to delay the decision, which may result in our forgoing our right to file Review petition which has to be filed within 30 days of the Judgment. Though court holidays can be excluded in reckoning the 30 days, IBA is unlikely to give its decision within 2 months and by the time we are informed of their decision, the right to file review petition would have been lost. On the other hand IBA may not consider the demand for the reason “Sub Judice” in case we file the review petition. Therefore the best course of action would be to file the review petition at the earliest and in case it does not succeed, to file the Curative petition without delay. I learn that Curative petitions are studied by two or three senior judges and therefore the probability of getting a favourable decision is more in a Curative petition. (Review petitions are circulated among the judges of the Bench which earlier heard the case.) We shall approach UFBU after exhausting all legal avenues only so that we do not forgo the arrears of DA which is a sizeable amount which the pensioners are legally and justly entitled to.
Regarding the Review petition, our approach may be in the following lines. Before proceeding with that it would be appropriate to list the strengths and weakness of our case.
Weakness:   
  1. Though the Joint Note on Pension Settlement contains a stipulation that DA to pensioners will be at the DA rates prevailing in RBI, the same is not found incorporated in the Pension Regulations.
Strengths:
  1. The judgment in D.S.Nakra is very much applicable to our issue and the precedents quoted in the Judgment also confirm this as explained later in this note.
  2. By improving the DA formula and extending 100% neutralization Banks have made improvement in the existing Pension Scheme only. By no stretch of imagination can anyone claim that by this improvement a new Pension Scheme has been introduced. Judgment after Judgment of the Supreme Court of India have reiterated that no cut off date can be imposed for extending the benefit of an improvement in the existing Pension Scheme.
Other Points for consideration:
  1. In the Joint Note dt.02/06/2005 there is no mention that Pensioners who retired before 01/11/2002 are not eligible for the enhanced DA which provided for 100% neutralization and they will only continue to get the DA at tapering rates as they were getting till date.
  2. In the 9th BPS/Joint note only the tapering rates were reintroduced and it was agreed that the Pre November 2002 pensioners will continue to get DA at tapering rates.
  3. The Joint notes are signed by Associations representing the serving employees. Their interests are in conflict with the interest of the Pensioners in matters involving financial outlay. The settlements entered into by these Associations cannot bind the Pensioners if they are adverse to the interest of the Pensioners.
  4. Hon’ble Judge has not understood the process of merger of a portion of the DA with Basic and the consequent reduction in the rate of DA to prevent payment of DA on DA.
  5. Hon’ble Judge also has not understood the enormity of the amount foregone by the Pre November 2002 pensioners. Though the amount foregone may appear to be small when read in absolute terms, the enormity will strike only when it is read in conjunction with the low amount of pension drawn by the Pensioner.
  6. Certain clauses of the Pension Settlement/Joint Note were wantonly not incorporated in the Pension Regulations to the detriment of the Pensioners. Though the Pension Regulations were circulated, the employees had no inkling that the Bank will take undue advantage of these omissions in the Regulations, to deny their normal and rightful benefits like improved DA formula, periodical revision of pension etc. Such acts of betrayal of trust by the Banks and Govt. in matters like pension, the only source of lively hood for the pensioners should be condemned by the Court. Banks and Govt should not be allowed to enjoy the fruits of/take shelter under their unbecoming acts/ wrongs.
  7. Two Judge Bench of the Madras High Court had decided that pre November 2002 retirees are covered by the earlier BPS and they cannot claim the benefits under 8th BPS. Supreme Court has also upheld this view. This view is not based on facts. Pension benefit was introduced through a Settlement/Joint Note followed by Board approved Pension Regulation and not through BPS. BPSs pertain to wages and service conditions of employees and they have nothing to do with pension. Therefore the finding of the Madras High Court that, for the purpose of payment of pension and other related benefits pre November 2002 pensioners come under the ambit of the BPS/Joint note which was in vogue at the date of their retirement and do not come under the ambit of 8th BPS/Joint Note is wrong as BPS/Joint note have nothing to do with Pension. Pensioners come under the ambit of the Pension Settlement and Pension Regulations only. Therefore the decision in Herbertsons that the settlement has to be taken as a package deal is not relevant to our case. If the finding of the Madras High Court that, payment of pension is governed by BPS in vogue at the time of retirement is taken as correct, the pensioners who retired in the year 1986 and subsequent years up to the year of introduction of pension will not be eligible for pension.
  8. In the Madras High Court two judge bench judgment as well as in the Judgment of the Supreme Court of India, there is a reference to Statutory Pension and Contributory pension. Though contributory nature of the Bank Pension funds is not shown as the reason for denying our request, the issue needs to be looked into.
In a contributory pension scheme a Fund is built up to meet the pension payments. In Statutory pension there is no built up of a Fund. However both the schemes entail expenditure to the employer. More over building up of the fund is a sound financial and accounting practice. This fund is not a fixed amount as described in the D.S.Nakra judgment. Based on actuarial calculations, contributions are made by the employer every financial year.  Banks have more than Rs.2 lac crores in their Pension Funds and are able to meet the pension payments from out of the interest income of the funds itself leaving the corpus to grow. Therefore building up the Fund cannot be and should not be cited as a reason for denying benefits agreed to be given in the settlement.       
  1. Numbers of Judgments have been cited in the Judgments of the Courts to establish that the ratio in D.S.Nakra is not applicable to our case. Relevancy or otherwise of these judgments are discussed in the following Table.
Sl.No. Case Law Finding Relevancy
01 D.S.Nakra V Union of India. The division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons, otherwise equally placed, it would be discriminatory. Relevant. The cut off date of 01/11/2002 in our case happened to be the date of implementation of 8th BPS. Had the BPS been implemented on some other date, that date would have become the cut off date. Thus there is no rationale in dividing the pensioners for the purpose of giving enhanced DA.
02 Kallakurichi Taluk Retired Officials Association V State of Tamil Nadu. Inflation would have the same effect on all pensioners whether retired prior to 01/06/1988 or thereafter. Relevant.     
03 Krishna Kumar v Union of India PF retirees and Pension retirees form a different class. Not relevant to our case.





04 Union of India v P.N.Menon and others Imposing a cut off date for the liberalised scheme is not discriminatory. Not relevant.  Ours is an improvement in existing benefit and not a liberalised scheme.  
05 State of Punjab v Justice S.S.Dewan If it is by way of upward revision of the existing pension scheme ratio of D.S.Nakra would apply. If it is held to be a new retiral benefit or a new scheme cut off date can be imposed. New retiral benefit. Hence demand for removing cut off date turned down. Not relevant.
06 Co.B.J.Akkara V Govt. of India Pensioners with the same rank need not be given identical Pension. Not relevant. 
07 Union off India V S.R.Dhingra Introduction of New Pension scheme. Imposing cut off date permitted. Not relevant. Ours is improvement in existing benefit.
08 Exservices League v Union of India Claim for same amount of pension as other employees of his rank irrespective of date of retirement. Not relevant.
09 K.L.Rathee v Union of India           -do- Not Relevant.
10 Kasturi v Managing Director, SBI Claim for joining pension scheme. Not relevant.


In accordance to the Constitution of India, the Supreme Court is the protector of the Constitution and the highest court of appeal. The Supreme Court is considered as the the ‘guardian angel of fundamental rights[1] consisting of four cardinal parts being- original, appellate, advisory and review jurisdiction.
The jurisdiction of the Supreme Court is defined under Article 124 to 147 of The Indian Constitution, wherein it elaborates on the fact that the Supreme Court of India being the apex court entertains the appeals against the orders passed by the High Court. Additionally it takes writ petitions in instances of genuine human rights infringement or if a case includes a significant issue that requires an expeditious verdict.
Article 137 of the Constitution of India, 1950, subjects to provisions of the guidelines made under Article 145, by which it is clear that the Supreme Court has the ability to review any judgment declared by it. This petition needs to be filed within thirty days from the date of the impugned ordee.
The petition or appeal goes before the same bench who had delivered the initial judgment. Although, questioning a judgment or an order which has accomplished conclusiveness by a writ on the premise of infringement of fundamental rights is quite dubious. A mere perusal of the Constitutional Assembly Debates with respect to Article 12 shows that there is a lot of misgiving with respect to the expression of “power/ authority” which is a part of Draft Article 7.
It was felt that “……….a magistrate or even a petty officer in authority (could) rightly claim under this article to have the authority to abridge a citizens (fundamental) rights. “[2]There had been a judgment in the matter of Naresh Shridhar Mirajkar & Ors .vs. State of Maharashtra & Anr [3] which had concluded with the help of a majority that an order can’t be said to repudiate or infringe anyone’s fundamental rights. Although in the matter of Mukharji, Oza and Natarajan, JJ. It had been clearly stated that the earlier order of Supreme Court dispossessed the appellant of his constitutional rights which is in contravention to the principles of natural justice and the foundation of the said Act was without precedent and the legal wrong should be redressed ex debito justitiae[4].
There are only a few resources available to those seeking relief from an Order of the Supreme Court, namely:
  • Review Petition
  • Curative Petition
Review Petition
“Review” in legitimate speech means a legal reconsideration of the case, ‘review’ is “re-examination. Along these lines, keeping in mind the end goal which is to rectify a miscue and obstruct a miscarriage of justice an arrangement for review is comprised under Section 114 of the Code of Civil Procedure Act, which gives a concrete right to review an Order, the Order XLVII of the Code of Civil Procedure Act specifically furnishes the procedure of review. “Articles 124 to 147 of the Constitution of India set out the purview of the Supreme Court of India wherein under Article 145(e), the Supreme Court is authorized to make rules subject to which the court may review any judgement or order. In exercise of this power, Order XL has been framed”[5].
Article 137 of the Constitution of India, 1950, states that subject to arrangements of any law and principles made under Article 145, the Supreme Court has the ability to review any order pronounced. Any party distressed by an order may file for reviewing the said order before to the same court. There is no scope of an appeal.
Review petition is a petition in which one implores before the same court of law to review its order/judgment which has been effectively professed. In accordance to the rules set under the Supreme Court Rules, 1966 the petition must be filed within thirty days from the date of the order and must be presented in front of the same bench of judges who had initially delivered the order.
A review petition is produced before the judges in their chambers and doesn’t come before an open court, which curtails the prospect of arguing out the matter by the respective counsels. Also the plausibility of a review petition to be successful in the Supreme Court is extremely meager unless a judge of the Supreme Court resigns, as the review petition is always produced before the same bench which has already heard the matter/ case.
It is only in the instances when there is something consequential that is produced before the judges that the judges decide to hear the petition in the open court, which sanctions an oral argument by the counsels, although needless to say this too is an extremely rare possibility. “Review is a serious matter; it doesn’t entail hearing the appeal all over again. A judgement once delivered is final. “A departure from that principle can be justified only when circumstances of a substantial and compelling character make it necessary to do so”.[6]
The apex court has elucidated that a review is in no way a form or camouflage of an appeal. The court has advocated review of its own judgment with the accompanying comments:
“Review literally and even judicially means re examination or re consideration. Basic Philosophy inherent in it is the universal acceptance of human fallibility…Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.”[7]
In accordance to the rules set out in the Supreme Court, a review petition is not entertained in civil proceedings unless it is in accordance to the grounds mentioned in Order XLVII, Rule I of the Civil Procedure Code which consists of:
  1. Some slip-up or blunder obvious on the record.
  2. The revelation of new and essential matter or evidence which, after the practice of due diligence, was not within the know how or couldn’t be delivered by the personal when the decree or order was passed.
  3. Whatever other adequate reason.
A review petition is neither entertained in any criminal proceeding, but only on the occasion when there is a conspicuous error seen which has surfaced on the records. Ergo it is befitting to mention that a review petition is viable only on restricted grounds.
Further it is of human predilection to not acknowledge with the review petition even at the likelihood of an error transgressed by the judge. Despite the inconsequential possibility people are still optimistic therefore they file review petitions in a standard way. There are abounding occasions when a review petition is not allowed, on such occasions the grieving parties tend to file a curative petition before the Supreme Court.
Curative Petition
After the review plea is dismissed a curative petition may be filed. It is the last legal resort and a fairly new concept accessible for prevention of any abuse of the procedure and to be sure that there is no miscarriage of justice. It is usually decided by Judges in-chamber. It is barely ever that these petitions are given an open-court hearing.
The Supreme Court had first decided the concept of curative petition on the basis of what was laid down in the matter of Rupa Ashok Hurra vs Ashok Hurra & Anr[8]. It is appropriate to say that the arrangement of curative petition begun after the choice of the Supreme Court on account of this matter. After a woman withdrew her consent regarding mutual separation in her divorce, Supreme Court got an intimation regarding the validity of a decree of divorce. If the petitioner can establish that the natural justice is violated then curative petition can be entertained.
Curative petition is not a regular phenomenon and can be used in circumspection. An enervating process has been systematized for filing a curative petition. A senior advocate must certify the petition in cognizance to the implementation of the requirements for filing the curative petition. Three senior most judges who have passed the concerned judgment must get the petition first. The petition is only listed after more than half of the number of judges arrives at a common conclusion that the matter needs to be heard again before the same Bench.
Curative Petitions are filed under Article 137, 141 and 142 of the Constitution of India and the same can be filed under the following grounds:
  1. The petitioner will have to certify and confirm that there was a genuine infringement of principles of natural justice and that there had been a bias of the judge and judgment that affected him.
  2. The petition shall state expressly that the grounds mentioned under Review Petition were dismissed by circulation.
  3. The Curative Petition must come with the certification of a senior advocate for fulfilling the above requirements.
  4. The petition is to be sent to the three senior most judges and judges of the bench who passed the judgment, if available.
  5. If the majority of the judges on the above bench agree that the matter needs hearing, then it would be sent to the same bench.
  6. The court could impose “exemplary costs” to the petitioner if his plea lacks merit”.[9]
The curative petition system had begun in the year of 2002 since which only a total of two curative petitions have thrived from all the numerous curative petitions that are filed every year, which makes it evident that the chances of a curative petition to succeed is quite diminutive.
In March 2013, Supreme Court allowed a curative petition against a udgment delivered in 2009 which stated “that if a woman kicked her Daughter-in-law or permitted her with divorce, it would not amount to cruelty under Sec 498-A of the Indian Penal Code.[10]”  In April 2010, the court further amended an error on its part by delivering an order which led to the wrongful confinement of four indicted in a twenty one year old case without any hearing.[11] The Supreme Court in the case of Union of India v. Azadi Bachao Andolan[12]upheld the legitimacy of circular issued by the Central Board of Direct Taxes in regards The Indo-Mauritius Tax Treaty, with respect to the testament of residence issued by Mauritius Regulatory Authority, which would permit them to gain tax exemptions. A curative petition was recorded in light of the fact that the decision authorizes the idea of “treaty shopping” and that it has conflicted with the constitution since delegated powers of the government had been allowed benefits over statutes.
A five -judge bench had been set up to deem whether it ought to be conceded, and was subsequently dismissed. “Since April 2002 when the Supreme Court propounded the nature of curative petitions, five hundred and sixty curative petitions have been filed before the Supreme Court”[13]. This suggests that the parties won’t stop till they have depleted all cures accessible including filing of curative petitions. The nature of a curative petition in Rupa Ashok Hurra included the conjuring of Article 137 of the Constitution. Before Rupa Ashok Hurra, Review Petitions denoted the certainty of a Supreme Court judgment past which no further challenge of the judgment was permitted.
Study Of Curative Petitions And Review Petitions
  • Primarily, in both the cases the petitions are circulated to the Supreme Court: for review petitions, the course taken is it is submitted before the judges who passed the decried whereas in the case of curative petitions, the petition is given to the three senior most judges in the Supreme Court and the judges who had passed the impugned judgment if available.
  • Secondarily in both the petitions a certificate from a senior counsel is fundamental and on the account of curative petition the court can ordain an exemplary cost for those petitions that are unjustifiable, although this isn’t the case in review petitions.
  • Lastly the curative petition is founded purely on the grounds of natural justice principles which isn’t the case in respect of review petition which is a wider scope and not just restricted to the laws of natural justice
Even though there is very little difference between a curative petition and a review petition, the Supreme Court has laid down different grounds for filing both these petitions; this brings to light such factors which make it evident that they are different in totality.

Curative petition can be considered under Article 32 of The Constitution Of India as it constitutes under constitutional remedies, albeit the chances of allowing a curative petition remains bare minimum.


1 comment:

  1. What happened to review petion of union bank of india in forfeiture of gratuity case of cg ajaybabu

    ReplyDelete