C N VENUGOPALAN Former Director ( GOI Nominee) State Bank of Travancore & Ex Manager Union Bank of India
“Nandanam”, Kesari Junction, North Paravur, Kerala -683 513 Mob: 9447747994 E – Mail: ceeyenvee@gmail.com
No.201:18 dated 14.12.2018
Hon’ ble Prime Minister,
Prime Minister’s Office, New Delhi – 110 101
Most venerable Prime Minister,
Incredible Indian Parliament!
I invite your kind attention to the notifications amending the Pension Regulations of nationalized banks by the Ministry of Finance in the gazette of India in March, 2018.
Boards of banks have powers to make / amend regulations that are not inconsistent with the Pension Scheme. But the amendments notified in the gazette / laid in the Houses were inconsistent with the Pension Scheme and were impermissible, to be brought as amendments to regulations, in terms of sections 19.1 and 19.4 of the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970/1980. Ministry of Finance was befooling all the members, comprising even legal luminaries, of both the Houses of the Parliament, while tabling the impermissible amendments before the Houses and getting them approved.
The victims of the illegal amendment are senior citizens in the age group of 60 to 90 whose deferred wages held in the Pension Funds of banks gets snatched away through the illegal amendment, bringing shame to the Legislature, Indian democracy, the government and to the whole nation. Ministry of Finance was attempting robbery of the deferred wages of retired bank employees through the notifications and obtaining the nod of the Houses of the Legislature for the impermissible amendments, bringing shame to the government when pension payable is out of the money and property of the employees with no cost either to government or to the concerned banks.
In fact, the Act and Pension Regulations are a rendering of the Ministry of Finance itself and while crafting the impermissible amendments which are inconsistent with the Pension Scheme and getting them approved by the Houses of the Parliament, the Ministry of Finance through its Ingenious Administrative Service, was causing amputation of the limbs of its own baby, and making the Indian Parliament gullible.
I make a fervent appeal to you to have a glance at the anomalies, pertaining to Union Bank of India, one of the nationalized banks, which are listed in the annexure and to do as appropriate for redeeming the dignity of the Indian Parliament so that the values enshrined in the Constitution are not effaced.
With respectful regards, I remain.
Yours sincerely,
C N VENUGOPALAN
Annexure to letter No.200:18 dated 14.12.2018
ABSURDITIES IN GAZETTE NOTIFICATION NO.428 DATED 06.11.2017 OF UNION BANK OF INDIA PUBLISHED IN THE GAZETTE OF INDIA AND APPROVED BY THE HOUSES OF THE PARLIAMENT.
Boards of Banks can make only regulations that are not inconsistent with the Pension Scheme vide sections 19.1 and 19.4 of the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970/1980; but the amendments notified and placed before the Houses of the Parliament were inconsistent with the Pension Scheme and hence impermissible under the extant sections of the Act.
1. Prior to publishing the notification dated 06.11.2017 with the number 428, a corrigendum to it was made by the Board of the Bank on 18.09.2017, before the publication of the original to which it relates, which was subsequently notified it in the gazette dated 28.12.2017 with the number 497.
2. The original notification published on 06.11.2017 was in the name of Ministry of Finance and authenticated by R R Mohanty, General Manager ( HR ) of Union Bank of India, purporting as made by the Bank on 18.09.2017 at Mumbai. It was ironical that the General Manager of the Bank was authenticating the notification in the name of the Ministry, ultra vires.
3. The notification 497 dated 28.12.2017 was authenticated by Ravikumar Gupta, another General Manager of some other department than the Human Relations on the same day the initial notification was prepared at Mumbai, viz.18.09.2017.
4. It is intriguing that the corrigendum amendment was also made on the same day the initial amendments were approved i.e. on 18.09.2017. This renders a fraudulent character to the amendments and to the notification, especially as both the notifications made on the same day, i.e. 18.09.2017 were gazetted on two different dates viz. 06.11.2017 and 28.12.2017.
5. The corrigendum notification No.497 in the name of the Bank had the effect of the Bank overruling the Ministry of Finance with extra constitutional powers as the initial notification 428 was in the name of the Ministry of Finance.
6. The second notification, was inserting a proviso vide clause 2 (d) of it by way of an incomplete sentence with the following wording:
(d) in relation to an employee who retired or died while in service on or after the first day of May,2005 the basic pay including stagnation increments, if any, and Special pay, Graduation Pay, Professional Qualification Pay, increment component of Fixed …… {by carelessly omitting the remaining portion Personal Pay and Officiating Pay, if any, drawn by the employee during the last ten months of his service in the Bank}
The above proviso is an incomplete and meaningless sentence which conveys no sense and needs another corrigendum.
7. The corrigendum was making clause (s) of regulation 2 of the Pension Regulations read as infra:
Regulation 2
(s) “Pay” includes:-
a. xxxxx
b. xxxxx
c. in relation to an employee who retired or died while in service on or after the 1st day of April, 1998,-
i. the basic pay including stagnation increments, if any,
ii. all other components of pay counted for the purpose of making contributions to the Provident Fund and for the payment of dearness allowances; and
iii. increment component of Fixed Personal Allowance; and
iv. dearness allowance thereon on the above calculated upto Index number 1616 points in the Al India Average consumer Price Index for Industrial Workers in the series 1960=100
d. in relation to an employee who retired or died while in service on or after the first day of May,2005 the basic pay including stagnation increments, if any, and Special pay, Graduation Pay, Professional Qualification Pay, increment component of Fixed
Clause 2 (s) (d) is thus ending abruptly with the word “Fixed” { carelessly omitting the further requisite words “Personal Pay etc. } , making an incomplete and meaningless sentence in the notification dated 28.12.2017, when the notification was initially reading verbatim as:
“in relation to an employee who retired or died while in service on or after the first day of May, 2005 the basic pay including stagnation increments, if any, and Special pay, Graduation Pay, Professional Qualification Pay, increment component of Fixed Personnel Pay and Officiating Pay, if any, drawn by the employee during the last ten months of his service in the Bank”
Note: Here also, there is no component of salary called “Fixed Personnel Pay” and the nomenclature of the component is “Fixed Personal Allowance”.
8. Clause 3 of the notification is seeking to remove from regulation 3, its sub regulation 4 and to substitute sub regulation 4 (a) in its place with the proviso infra:-
(4) (a) join the service of the Bank on or after the notified date and on or before the 31st day of March, 2010.
9. The notification dated 06.11.2017 is devoid of clause (a) under clause 3 per se , the next clause in it being 3 (b).
10. Regulation 3 of Pension Regulations was reading initially as infra:
3. Application :
These regulations shall apply to employees who:
1. xxxxx
2. xxxxx
3. xxxxx
4. join the services of the Bank on or after the notified date;
In terms of the notification, regulation 3 is without sub regulation 4, reading as infra:
These regulations shall apply to employees who:
1. xxxxx
2. xxxxx
3. xxxxx
4. _____ (blank)
4. (a) join the services of the Bank on or after the notified date; and on or before the 31st day of March, 2010
In terms of the notification, sub regulation 4 (a) is without sub regulation 4 and is seeking to exclude employees who joined service of the Bank on or after 31.03.2010 from Pension Scheme, which is impermissible under section 19.4 and 19.4 of the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1995 as it is inconsistent with the Pension Scheme.
11. Clause 3 (b) of the notification is for inserting new sub regulations 11 to 14 shown below under regulation 3 beneath sub regulation 10 of it making the sub regulations 10 to 14 read as infra:
3. Application:-
These regulations shall apply to employees who:
1. xxxxx
2. xxxxx
3. xxxxx
4. _____( blank) [w.e.f.06.11.2017]
4. (a) join the services of the Bank on or after the notified date; [and on or before the 31st day of March, 2010] [w.e.f.06.11.2017]
5. xxxxxx
6. xxxxxx
7. xxxxxx
8. xxxxxx
9. xxxxxx
10. Notwithstanding anything contained in sub-regulations (2), (5), (6) and (8), in cases where an employee had retired /died after retirement on or after the 1st day November, 1993, but on or before the 1st day of April,1995, or where an employee had died while in service of the bank on or after the 1st day of November,1993, but on or before 1st day of April, 1995, such an employee or the family of the deceased employee, as the case may be, shall refund within the period specified in aforesaid sub-regulation the entire amount of the bank contribution to the Provident Fund including interest accrued thereon with a further simple interest at the rate of six percent per annum on the said amount from the date of settlement of the provident fund account till the date of refund of the aforesaid amount to the bank or till the 1st day of April,1995, whichever is earlier.
11. “were in the services of the Bank prior to the 29th September, 1995 and continue in the services of Bank as on the 27th April, 2010 provided such employee meets the requirement and comply with the conditions laid down in the settlement.”
12. “were in the services of the Bank prior to the 29th September, 1995 and retired after that date and prior to 27th April, 2010 provided such employee meets the requirement and comply with the conditions laid down in the settlement.”
13. “were in service of the Bank, prior to the 29th September, 1995 retired after that date and had died in which case their family shall be entitled to the pension or the family pension, as the case may be under these regulations, if the family of the deceased meets the requirement and complies with the conditions laid down in the settlement”
14. “were in the service of the bank prior to the 29th September, 1995 and died while in service of the Bank after that date in which case their family shall be entitled to the pension or the family pension, as the case may be under these regulations, if the family of the deceased meet the requirement and complies with the conditions laid down in the settlement.”
The legal impediments in relation to the insertion of the new sub regulations are:
(a) The provisos under clause 11 to 14 opening with the words “ were in the service of the Bank “are in total disharmony with the previous sub regulation 10 which relates to the eligibility to pension of employees who retired / died after 1st day November, 1993, but on or before the 1st day of April,1995 and in making no sense at the place.
(b) The employees listed under the new sub regulations are those finding a place under the earlier sub regulations also who do not have to comply with the conditions laid down in the settlement, making the same employees eligible to join the Pension Scheme ‘with compliance’ and ’without compliance’ of the terms and conditions of the settlement, which is preposterous.
(c) The conditions laid down in the settlement are the contribution to Pension Fund to the tune of 2.8 times revised pay for November, 2007 in the case of serving employees and 56 percent of CPF paid on retirement in the case of retired employees to the Pension Fund of the Bank, which are inconsistent with the regulations 5 (3) and 11 of the Pension Regulations, which determine the Bank as the sole contributor to the Pension Fund, and the amendments envisaged are impermissible under section 19.1 and 19.4 of the Act.
10. Clause 4 of the notification is seeking to amend regulation 28 of the Pension Regulations on Superannuation Pension by inserting a new proviso under this regulation to make the regulation 28 read as below:
Regulation 28 Superannuation Pension
Superannuation pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the Service Regulations or Settlements. [w.e.f.29.09.1995]
“Provided however that, with effect from 1st September, 2000, pension shall also be granted to an employee who opts to retire before attaining the age of superannuation, but after rendering service for a minimum period of 15 years in terms of any scheme that may be framed for such purpose by the Board with the approval of the Government”. [w.e.f. 13.07.2002]
“Provided further that employees who ceased to be in service on or after the 29th September, 1995 on account of voluntary retirement before attaining the age of superannuation but after rendering service for a minimum period of 15 years in accordance with the Scheme framed in this regard by the Board with the approval of the Government, shall be entitled to join the Pension Fund, subject to the compliance of the terms and conditions mentioned in the Scheme.”
[w.e.f. 06.11.2017]
The insertion on 06.11.2017 makes it explicit those who ceased to be in service on or after 29.09.1995 on account of Voluntary Retirement after rendering service for a minimum period of 15 years in accordance with the Scheme framed for Voluntary Retirement shall be entitled to join Pension Fund with retrospective effect from 29.09.1995 and to receive superannuation pension from the respective date of retirement as a consequential benefit, but the benefit vested under the amendment is remaining unpaid to the concerned subjects of the Pension Scheme. The objective of the notification is to give effect to it and not for the sake of merely recording some thing.
11. Clause 8 (a) of the notification amending regulation 52 (1) by substituting the pre existing proviso in regulation 52 (1) makes the regulation read as below:
52 Date from which pension becomes payable:
(1) Except in the case of an employee to whom provisions of regulation 43 and regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires.
[w.e.f.29.09.1995 & removed on 06.11.2017]
(1)Except in the case of an employee to whom provisions of regulation 34 and regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires.
[w.e.f.06.11.2017]
Though the amendment is making it explicit that employees to whom provisions of regulation 34 or regulation 46 are inapplicable are entitled to pension from the date following the date of retirement, the notified benefit of pension from the date following the date of retirement is remaining unpaid to employees who whom provisions of regulation 34 and 46 are inapplicable.
12. Clause 8 (b) of the notification is seeking to insert a new proviso as sub regulation 3 under regulations 52, making the regulation read as below:
52 Date from which pension becomes payable:
(1) Except in the case of an employee to whom provisions of regulation 43 and regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires.
[ w.e.f. 29.09.1995 and removed on 06.11.2017]
(1)Except in the case of an employee to whom provisions of regulation 34 and regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires.
[w.e.f. 06.11.2017]
(2)Family pension shall become payable from the date following the date of death of the employee or the pensioner.
(3) Pension including family pension shall be payable for the day on which its recipient dies.
(3) Provided that pension including family pension to those who opted to join the Bank Employees’ Pension Scheme on or after the 27th April, 2010 shall be payable with effect from the 27th November, 2009.
The insertion of the new proviso under sub regulation 3 relating to the commencement of pension having been placed below the pre existing sub regulation 3 which deals with the date of cessation of pension is in disharmony with it, makes no sense at the place and is paradoxical.
The new sub regulation 3 providing for payment of pension from 27.11.2009 being inconsistent with regulation 52 (1) which mandates the payment from the day following the date of retirement of the employee is impermissible under section 19.1 and 19.4 of the Act.
The new sub regulation 3 renders two sub regulations with the same number 3 under regulation 52, making it preposterous.
C N VENUGOPALAN
Relevant provisions of Law:-
Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970/1980
Section 19. Powers to make regulations
(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.
C N VENUGOPALAN
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