A Case for Pension UPDATION ...

A Case for UPDATION ...
(Excerpts from the Draft WP of Sri M.K R (73) Dy.Manager Union Bank of India
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Bank Pensioners are deprived of a life with dignity at old age as their pension is not revised ever since the inception of the pension scheme
WRIT PETITION (CIVIL) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
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The petitioner joined the services of the Bank on 19/12/1967 and retired  as Deputy Manager on 20.04.2001 after having put in a total service of 33 years

Petitioner has opted for pension as per the Union Bank of India (Employees’) Pension Regulations 1995. He was paid pension at the rate of Rs.6483/- per month (Basic Rs.4395/ + DA Rs.2088/-) as per pension payment order No.6613011 dated 28.11.2001. The basic pension of the petitioner remains static without any revision whereas the
petitioner is getting a monthly pension of Rs.24,099/- considering the increase in D.A. and commutation of pension. The petitioner is aggrieved by the fact that there is no revision of basic pension to the petitioner and other pensioners though they are entitled for revision of
basic pension in view of explicit provisions of Pension Regulations 1995. Regulation 35 (1) of the Pension Regulations notified on 29.09.1995 provided that “In
respected of employees who retired between the 1st day of January, 1986 but before 31st day of October, 1987, basic pension and additional pension will be updated as per the formula given in Appendix - 1”. The second respondent amended the said regulation on 18.05.2002 to read it
as “Basic Pension and additional pension, wherever applicable, shall be updated as per the formula given in Appendix –I” making it unambiguous and mandatory that the basic pension shall be updated simultaneous with the increase in pay bands arising out of Bi-Partite Settlements reached from time to time.
Clause 56 of the Pension Regulations makes it abundantly clear that the Pension Scheme is exactly on the premise of Central Civil Pension rules by stating under Residuary Provisions that “In case of doubt, in the matter of application of these regulations, regard may be had to the corresponding provisions of Central Civil Services 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.”. Regulation 35 (1) and 56 thus make it clear beyond any conundrum that the second respondent(Union Bank of India) shall revise the basic pension of its retired employees simultaneous with wage revisions taking place through Bi-Partite Settlements in the way Central Civil Pension gets revised automatically with the implementation
of each Pay Commission.
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In spite of regulation 35 (1) as amended on 18.05.2002 mandating the updating of pension in the case of employees retiring on any date and regulation 56 making it clear that the
Pension Scheme is exactly on the premise of the Central Civil Pension, the respondents have not so far updated the pension of the Petitioner and similarly placed employees in defiance of regulations 35 (1) and 56, depriving them of their right to live with dignity in old age, through denial of the statutorily vested updating of pension out of their own deferred wages held in trust in the Pension Fund, while the first respondent updates the Central Civil Pension to its
employees regularly with the implementation of each Pay Commission, out of the exchequer.
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The Pension Fund of the second respondent need not service employees who joined its service after 31.03.2010 as they are covered under the PFRDA Scheme of Pension of the first respondent. As such, the pension liability of the second respondent will extinguish in course of
time when the last pensioner breaths his last and the Pension Fund will vest with the respondents. In this circumstance, the respondents are acting in connivance and detaining the
money in the Pension Fund without paying the statutory benefits conferred by regulations 35 (1) and 56 with the evil design of snatching it away for themselves in the long run when the beneficiaries of the Pension Fund get extinct.
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In terms of section 10 (7) of the Act, the Board of Directors of the second respondent can declare a dividend and retain the surplus profits as accumulated reserves only after making due provision for superannuation funds like pension, the said section giving a prior charge to
pension over the profits of the Bank by stating as infra:
Section 10 (7):
“After making provision for bad and doubtful debts, depreciation in assets, contributions to staff and superannuation funds and all other matters for which provision is necessary under any law, or which are usually provided for by banking companies, a corresponding new bank may out of its net profits declare a dividend and retain the surplus if any.”
14. Section 10 (7) of the Act puts an onus on the respondents to pay the statutorily defined pension even in case of operating in loss. The second respondent was declaring dividends ranging from 13 percent to 80 percent to the stakeholders including the first respondent and
increasing its reserves and surpluses from Rs.15,092.64 Crores as on 31.03.2013 to Rs.22,747.76 Crores as on 31.03.2017 without paying the statutorily defined pension in gross derogation of regulations 35 (1) and 56 of the Pension Regulations out of the Pension Fund, neglecting section 10 (7) of the Act  Section 10 (7) of the Act gives a prior charge to superannuation funds over the profits of the second respondent which is a statutory guarantee to the employees while taking over banks through Act 5 of 1970 and even in case of loss, banks cannot evade payment of superannuation benefits. Inasmuch as pension is payable out of the Pension Fund which is the deferred wages of the employees and pension costs zero expenditure to either of the respondents, the respondents, by not revising pension as mandated by regulations 35 (1) and 56 are indulging in a heinous crime of detaining the money of the employees and denying them their right to live unbecoming of its status as the government and “state”.
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The first respondent(Union of India) that has the ownership and control over nationalized banks, including the second respondent, is having vested interest in getting higher sums as dividends and was not revising the pay and pension in banks and thus exploiting the employees in them / retired
employees in defiance of section 10 (7) of the Act for getting a higher dividend for paying higher pay and pension to its direct employees.  The rulings made by the Apex Court even when pension is payable by the state causing an expenditure to the exchequer is that state cannot take a plea of financial burden to deny the legitimate pension, pension is property within the meaning of Article 19 (1) (f) and 31
(1) of the Constitution, it is the duty of the State Government to avoid unwarranted litigation etc. and as such the respondents are not justified in denying due pension and updating ,
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The employees of nationalized banks are employees of the state by reason of ownership of banks by the government and the status of the bank as “state” under Article 12 of
the Constitution and the employees of banks are the people who implement all the financial policies of the Central Government. Though their wage bills are to be paid by the government thus, it is paid out of the profits the employees themselves make in banks and the government
does not have to pay them anything. Employees of banks had a higher pay than that of the employees of the government in the pre 1980 period, which was given to them through Awards like Desai Award in view of the higher financial risks, extended working hours, transfer to remote
locations etc. The first respondent implemented the Pillai Committee Recommendations on
01.07.1979 in banks including the second respondent bank to bring about parity in pay with the government employees. Though parity of reasoning requires pay in banks to be at least equal to the pay in government, it is now less than two third of the pay prevailing in government. The first respondent was giving a discriminatory and step-motherly treatment to employees of banks, darkening the lives of the people who illuminated the other segments of the society.
The petitioner and similar retired employees are very much forced to the walls as their pension
has nexus with the salary payable to the employees which is not revised adequately and the
basic pension is never revised in tune with revision in salary through bipartite settlements ever
since the inception of Pension Scheme in gross derogation of regulations 35 (1) and 56 of the Pension Regulations.
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The petitioner made a representation to the second respondent on 16.6.18 praying for revision of pension as mandated by pension Regulations and to pay him the arrears.The respondent has not issued any reply.
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The Hon’ble Court can only despise the action of the respondent in denying the
updating of pension as regulation 35 (1) and 56 of Pension Regulations are their own rendering specifically mandating the updating and payment of due benefits as Pension Fund has the potentials for paying four times the present pension to all the pensioners with no cost to the respondents, more so as the view adopted by the Apex Court even when
pension is payable by the state out of the exchequer is that right to receive pension is property
under Article 31 (1) and 19 (1) (f) of the Constitution of India; pension is not a bounty depending
upon the sweet will of the employer; but is the deferred wages of the employee and an inalienable right earned through relentless service.
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The Petitioner humbly submits that it is essential that the respondents implement in letter and spirit regulations 35 (1) and 56 which are their own rendering approved by the
Legislature as a subordinate legislation and are the rules in force applicable. 
A) The Bank is “state” as defined under Article 12 of the Constitution of India and is to act in furtherance of the welfare of the subjects of the Pension Regulations making it
essential to desist itself from denial of due benefits to the subjects of the beneficial legislation,
with the end in view of snatching away the property of the employees in the long run.
B) The respondents are bound to act in accordance with the ruling of the Hon’ble Supreme
Court in order dated 13.02.2018 in Civil Appeal No.5525 of 2012 viz. Bank of Baroda & Anr. Vs.
G Palani & Ors. that “the regulations have statutory force, having been framed in exercise of the
powers under section 19 (2) (f) of the Act of 1970 and are binding”, and that “That it is it is not
permissible to add or subtract any word in a provision is a settled principle in statutory
interpretation” since the ruling is squarely applicable in the case of regulations 35 (1) and 56
and disregard to the ruling is could lead to contempt of the Apex Court.
C). Reckoning the observation by the Hon’ble Supreme Court in clause 26 of the Ext.P4 order
that “in that case the right to receive pension was treated as property under Articles 31 (1) and
19 (1) (f) of the Constitution the respondents are unlawfully detaining the property of the
petitioner and are to refrain from such unlawful act.
D) is under an obligation to is to revise the pension of its employees in view of the following observation of the Hon’ble Supreme Court in All India Reserve Bank
Retired Officers Association and Ors Vs. Union of India & Ors., (1992) Suppl.1 664) in clause 21
of Ext. P4
“5. The concept of pension is now well known as has been clarified by this Court time and again.
It is not a charity or bounty nor is it gratuitous payment solely dependent on the whim or sweet will of the employer. It is earned for rendering long service and is often described as deferred portion of the compensation for past service. It is in fact in the nature of a social security plan to provide for the December of life of a superannuated employee. Such social security plans are consistent with the socioeconomic requirements of the Constitution when the employer is a
State within the meaning of Article 12 of the Constitution.
Prayer:
To issue a writ of mandamus or any other writ order or direction directing the respondents to update the pension of petitioner as mandated by regulation 35 (1) and 56 of the Pension Regulations and to pay arrears of pension with interest  Hon`ble Court may be pleased to direct the respondent to update the pension of petitioner forthwith, and pay the Interim Relief  pending final disposal of the Writ Petition.
(Our Thanks to Sri K Mohandoss Krishnan  CB)