Reply Affidavit in Writ On Pension

BEFORE THE HONOURABLE HIGH COURT OF KERALA
AT ERNAKULAM


W.P. (C) No. 34611 of 2018

          V Rajan Babu Petitioner
    Vs
         Union of India & Anr. Respondents


REPLY AFFIDAVIT TO COUNTER AFFIDAVIT OF 2nd RESPONDENT
I, V Rajan Babu aged 68 years, son of Shri. Bhaskaran Nair, residing at “Arudham”, Vennala, in Ernakulam District, Kerala, 682019 solemnly and sincerely affirm and state as follows: 
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1. I am the petitioner in the above writ petition, I know the facts of the case and I am competent to file this reply affidavit.

2. All averments of the respondent in the Counter Affidavit (CA), except those specifically admitted below, being untrue and lacking probity, are denied hereby.


3. The writ petition is founded on the Ext.P6 notification dated 06.11.2017 through which the respondents by themselves have notified that the benefits claimed in the writ petition are payable, making it obligatory on their part to pay such benefits without demur and without wriggling.
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4. Clause 4 of the Ext.P6 notification dated 06.11.2017 amending  regulation 28 on Superannuation  Pension with retrospective effect by inserting the proviso viz. “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” makes it explicit that the petitioner who retired through  Voluntary Retirement Scheme 2000-2001 after 29.09.1995 after rendering service of more than 15 years is entitled to join Pension Fund with retrospective effect and to superannuation pension from the date of his retirement as mandated by sub regulation 52 (1).   When pension is thus payable to him from the date following the date of his retirement, the contribution of 56 percent of CPF the respondent levied to the Pension Fund on the basis of the Ext.P4 Joint Note becomes unnecessary and refundable.

5. Clause 8 (a) of the Ext.P6 notification dated 06.11.2017 is amending  sub regulation 1 of regulation 52 with the caption “Date from which pension becomes payable” by substituting the existing proviso viz. “Except in the case of an employee to whom the 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” with a new proviso viz. “Except in the case of an employee to whom the provisions of regulation 34 or regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires” in terms of which too the petitioner became entitled to pension from 21.04.2001, the date following the date of his retirement.  Regulation 34 relates to “Payment of Pension or Family Pension in respect of employees who retired or died between 01.01.1986 to 31.10.1993” and regulation 46 relates to “Provisional Pension” to employees against whom any departmental or judicial proceedings are instituted or are continued which are inapplicable to the petitioner and they being inapplicable to the petitioner the amendment vide clause 8 (a) of Ext.P6 notification creates an indefeasible right to the petitioner for pension from the date following the date of his retirement.

6. The Ext.P6 notification, vide clause 3 amended regulation 3 of the Pension Regulations by substituting sub regulation 4 viz. {These regulations shall apply to employees who:- } “join the service of the bank on or after the notified date; “ with sub regulation 4 (a) with the proviso viz.  { These regulations shall apply to employees who:- } “join the service of the bank on or after the notified date and on or before the 31st day of March, 2010” with retrospective effect for the purpose of excluding employees who joined service after 31st March, 2010 from the Pension Scheme which, being inconsistent with the Pension Scheme, is impermissible vide sections 19.1 and 19.4 of the Act to be brought as an amendment to the Pension Scheme.

7. Clause 3 (b) of the Ext.P6 notification was inserting in regulation 3, new sub regualtions 11 to 14 stipulating the contribution to Pension Fund which the respondent had raised earlier on the basis of Ext.P4 by making a reference to the contributions in the notification as “provided such employee meets the requirements and comply with the conditions laid down in the settlement”. The contributions are inconsistent with the Pension Scheme as the bank is the sole contributor to the Pension Fund in terms of regulation 5 (3) and 11 of the Pension Regulations, which are cited in paragraph 14 of the writ petition rendering the new sub regualtions 11 to 14 inconsistent with the Pension Scheme and impermissible to be brought as amendment to the Pension Regulations.

8. Vide clause 8 (b) of the Ext.P6 Notification, the respondents amended regulation 52 by inserting in sub regulation 3 the additional proviso viz. “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 new proviso for payment of pension from 27.11.2009 being inconsistent with regulation 52 (1) stated in para 5 supra is impermissible under section 19.1 and 19.4 of the Act to be brought as an amendment to Pension Regulations.    The petitioner further submits that whereas the clause 8 (b) of Ext.P6 notification is suggesting the insertion of the new proviso in sub regulation 3 of regulation 52, the second respondent inserted it in regulation 52 to make the regulation read as infra:-
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9. Clause 2 of the Ext.P6 notification lays down that “Save as otherwise expressly provided in these regulations, they shall come into force on the date of their publication in the Official Gazette” making it clear without any scintilla of doubt that the contributions envisaged under clause 3 (b) vide sub regulations 11 to 14 and the payment of pension with effect from 27.11.2009 envisaged under clause 8 (b) of the notification are effective from 06.11.2017, the date of the notification, corroborating that the respondents are guilty in having raised the contribution and denied pension from date of retirement to 27.11.2009  on the basis of the Ext.P4 Joint Note.

10. The conclusions 1 to 5 stipulating the contribution to Pension Fund and conclusion 8 for payment of pension from 27.11.2009 to retired employees in lieu of from the date following the date of retirement in the  Ext.P4 Joint Note and the corresponding clauses 3 (b) and 8 (b) of the Ext.P6 notification being inconsistent with the Pension Scheme can never evolve into law as they are impermissible under sections 19.1 and 19.4 of the Act to be brought as amendments to Pension Regulations.

11. The averment in the explanatory memorandum at the concluding portion of Ext.P6 notification that “interests of no person shall be adversely affected by such retrospective effect” to the amendments makes it imperative that the clause 3 of it for exclusion of employees who joined service after 31st March, 2010, clause 3 (b) envisaging the contributions and clause 8 (b) for payment of pension from 27.11.2009 to the retired, which are detrimental to the subjects of the Pension Regulations shall not be operative against any person and creates an onus to the respondents to pay pension to the petitioner with effect from 21.04.2001, the date following the date of his retirement  and without the contribution. 

12. The conclusions 1 to 5 stipulating the contributions and conclusion 8 for payment of pension from 27.11.2009 of Ext.P4 Joint Note are intended to take away the statutorily vested rights arising out of the Pension Regulations and are unsustainable as per the ruling of the Division Bench of this Hon’ble Court in Syndicate Bank Vs. Celine Thomas (Equivalent citations: (2006) IILLJ 413 Ker) where it was held that “Memorandum of Understanding cannot meddle with the statutory prescriptions. Nobody can agree by way of a settlement at the behest of an organisation taking away the benefit conferred on individuals by way of statutes or statutory rules.  There need not have any authority to substantiate this. Statutory prescriptions crystallize the rights in favour of the subjects of that statute. It cannot be varied to their disadvantage unless otherwise by amendment to the statute”.

13. The Ext.P9 order dated 13.02.2018 in Civil Appeal No.5525 of 2012, which forms law laid down by the Hon’ble Supreme Court makes it clear that the regulations that have statutory force are binding, they could not have been supplanted by any executive fiat or order or Joint Note which has no statutory force, the Joint Note of the officers also had no statutory force behind it and could not have obliterated any of the provisions of the Act of 1970 or the existing regualtions, rendering the conclusion 1 to 5 in furtherance of the contribution and conclusion 8 for payment of pension from 27.11.2009 of the Ext.P4 Joint Note and the corresponding clauses 3 (b) and 8 (b) of the Ext.P6 Notification void in law. 

14. The contributions which the respondents raised to the Pension Fund and the pension denied from the date of retirement to 27.11 2019 were lying in the Pension Fund and earning a compound interest to it on the Pension Fund investments and in case the amounts are not repaid/paid with similar compound interest to those concerned, it will result in a wrongful gain to the second respondent and a wrongful loss to the members of the Pension Fund, including the petitioner.

15. The respondents are not updating the pension of the petitioner in gross defiance of definite provisions contained in regulation 35 (1) and in spite of regulation 56 making it explicit that the pension scheme in the bank is exactly on the premise of Central Civil Pension which gets updated with the implementation of each Pay Commission making similar updating of pension in the second respondent bank with each Bipartite Settlement essential and mandatory.  Denial of updating of pension is also in defiance of the ruling dated 01.07.2015 in Civil Appeal No.1123 of 2015 viz. State of Rajasthan & Ors. Vs. Mahendra Nath Sharma  where it was laid down  that pension “shall not be lower than 50% of sum of the minimum pay of the post in the running pay band plus grade pay introduced w.e.f. 1.9.2006 corresponding to the pre-revised pay scale of the post from which pensioner had retired”.  The petitioner submits that in not updating the pension in tune with the revision in pay scales through Bipartite Settlements, the respondents turn out to be contemnors of the Hon’ble Supreme Court.

16. Since the Hon’ble Supreme Court has upheld updating of pension as the right of the employee even when pension is payable with a cost to state, this Hon’ble Court can only take a strong exception of the respondents in not revising the pension which is with no cost to them as pension in the bank is payable out of the Pension Fund, which is the money, property and deferred wages of employees and the Pension Fund can pay four times the present pension to all the pensioners in a scenario where the average pay out of benefits is only 23.92 percent of the annual growth of the Pension Fund as corroborated by  the data disseminated by the second respondent vide Ext.P5.

17. The second respondent have no cavil over the averments in the writ petition that it can pay off the pension denied to all retirees within a sum of Rs.1,242.40 Crores out of the growth of Rs.9,873.73 Crores (paragraph 23), the unlawful contributions and interest can be paid off within a sum of Rs.295.70 Crores (paragraph 24), the Pension Fund can foot four times the present pension to all the pensioners (paragraph 25), the second respondent has zero expenditure in paying pension and is detaining the money and property of employees held in trust by it with a view to making a wrongful gain to it (paragraph 26), the first respondent is not allowing the second respondent to update pension of its retired employees in spite of availability of ample money in the Pension Fund and explicit provisions in regulation 35 (1) and 56 which mandates such updating in gross neglect of the ruling in Civil Appeal No.1123 of 2015 of the Hon’ble Supreme Court where it was held that pension shall not be lower than 50 percent of the revised pay scale corresponding to the pre-revised pay (paragraph 27), the respondent that paid arrears of DA and interest on it to its pensioners admitting the industry level application of Ext. P9 ruling notwithstanding that it  emanated in the case of Bank of Baroda has to refund the unlawful contributions and pay the pension denied as the ruling holds that the Joint Note has no statutory basis ( paragraph 31) etc. and is only making a lame and wrong plea that the projections given by the petitioner are imaginary when the details furnished by the petitioner in the writ petition are founded on solid information disseminated by the respondent vide Ext.P5.


18. In para 2 of the counter affidavit, the second respondent is diluting its status as “state” stating that it is for the limited purpose of deciding if there is any infringement of fundamental rights for the purpose of evading its responsibility as “state” as defined under Article 12 of the Constitution.

19. The averment of the second respondent in para 5 of the CA in relation to para 4 & 5 of the writ petition that the regulation 22 (4) (b) of the pension regulations was not having a discriminatory provision is untrue as one joining the Pension Scheme would lose pension through forfeiture of past service if he participated in strike and one remaining in CPF would not lose pension on account of   participation is strike notwithstanding that both are similar manner of people.

20. The averments in paragraph 6 of the CA in response to paras 4 to 7 of the writ petition are impertinent narrations.   Though the petitioner was unveiling the detrimental nature of regulation  22 (4) (b), reason for its amendment leading to Ext.P2, denial of option due under Ext.P2 defeating the purpose of the amendment and withholding the Ext.P2 from the target group till issuance of Ext.P3, the second respondent was distorting facts stating that large number of employees had exercised their option for pension, which too is untrue as  17,579 employees, serving and retired, joined the Pension Scheme only in 2010 on the basis of Ext. P4 Joint Note as evidenced by Ext.P5.

21. In para 7 of the CA, the second respondent is deposing without reference to any averment in the writ petition, that “As far as member banks are concerned, IBA (Indian Banks’ Association) is an advisory body. Based on its advice, various decisions are taken by member banks …….. and the circulars issued by any of the member banks ……is binding on the employees of such banks.  Staff Circular 4249 dated 29.12.1995 was issued “to provide an opportunity to all employees after introduction of Union Bank of India Employees Pension Scheme 1995  to consider their decision to join or revoke their earlier option to join the scheme as per the regulation”.   The second respondent is further taking shelter under the gazette notification for publishing of the Ext.P2 belatedly through Ext.P3 staff circular.    The entire averments are untrue as IBA clarifies that it is  a voluntary organization, has no authority over banks and it does not issue directions to banks  vide its legal circular dated 30.09.2019,  the Staff Circular No.4249 dated 29.12.1995 was not in furtherance of joining the pension  scheme and was envisaging revocation of options earlier exercised alone when such options  were final and irrevocable in terms of regulation 4 (2),  and the second respondent was departing from the usual practice of circulating the amendment beforehand among employees with a statement that the amendment will have effect from the date of their notification in the gazette.  If the respondent is of the view that notification in gazette is sufficient, it has to clarify why it used to issue circulars on each amendment to regulations and seek acknowledgement of employees for them.   The true copy of the legal circular dated 30.09.2019 of IBA stating that it does not issue directions to banks is produced marked as EXHIBIT-P11.

22. In paragraph 8 of the CA in relation to para 8 to 10 of the writ petition, the respondent is pleading that the unlawful conclusions of the Ext.P4 Joint Note also are to be adhered to for exercising option without taking cognisance of the fact that an option for pension was remaining due under the Ext.P2 amendment which became part of the Pension Regulations and cannot be repealed as any amendment inconsistent with the Pension Scheme is impermissible under sections 19.1 and 19.4 of the Act and in spite of the fact that the Ext.P4 is only a memorandum of understanding between IBA and unions / associations of officers that cannot thwart the statutory regulations and the respondent has not disputed the contents of paragraph 10 of the writ petition where it was submitted that the Ext.P4 Joint Note was projecting a pseudo deficit in Pension Funds of banks.   

23. In paragraph 9 of the CA in respect of paragraphs 11 to 17 of the writ petition, the second respondent is paradoxically stating in the same breath that “the Ext.P4 Joint Note does not require any amendment of the Pension Regulations” and also that “appropriate amendments have been validly made and notified to the Pension Regulations as evidenced from Ext.P6”. The averment of the respondent that “there is no valid point in contending that the Joint Note does not have statutory force and is ultra vires the 1995 Pension Regulations” fails as the Ext.P9 ruling of the Hon’ble Supreme Court in Civil Appeal 5525 of 2012 holds that the Joint Note does not have statutory force and the Regulations are binding.  The respondent’s statement that “On the basis of Ext.P4 and P6 the petitioner was granted only an option to join the Pension Fund is prima facie false as  the option was granted in 2010 and the Ext.P6 came only on 06.11.2017.  The statement that “the conditions of pension of the petitioner would be governed by Exts.P4 and P6 is fundamentally false as the pension is governed by the Pension Regulations, which are statutory, and the conclusions 1 to 5 and 8 of the Ext.P4 are unsustainable, rendering the corresponding provisions 3 (b) and 8 (b) of the Ext.P6 also void in law.   This apart, para 11 to 17 of the writ petition deal with different topics viz. the fake nature of the Funding Gap of Rs.6,000 projected in the Ext.P4 (para 11), the details of the unlawful contribution  to the Pension Fund (para 12), improper accounting of the provisions made to the Pension Fund (para 13), impermissible nature of conclusions 1 to 5  and 8 of the Ext.P4 Joint Note (para 14 &15),  the mischievous purpose of the Ext.P6 notification (para 16) and the paradoxical nature of clause 3 (b) of the Ext.P6 notification (pare 17) which are not at all disputed in the extant paragraph of the CA, attesting to the accuracy of the averments in the writ petition.

24. The averments in para 10 of the CA in respect of para 18 to 33 of the writ petition falsely aver that “there is no discrimination between employees who are being pension from the date of retirement and others …..who would be paid pension from  27.11 2009”,  “Regulation 52 (1) is not applicable to the petitioner” and that “it is made clear that the persons who joined the Bank Employees’ Pension Scheme on or after 27.4.2010 will be paid pension only with effect from 27.11.2009”, “the petitioner cannot harp on Regulation since he is governed by Regulation 52 (1) proviso which is present in the Ext.P6 gazette notification” which are untrue  since payment of pension from the date of retirement to one segment and from 27.11.2009 to another is palpable discrimination besides being inconsistent with regulation 52(1) of the Pension Scheme, regulation 52(1)  cannot be made inapplicable to anyone unless specifically stated anywhere and regulation 52 (1) present in Ext.P6 notification mandates payment of pension from the date following the date of retirement of the employee.  The second respondent was not touching or refuting any of the averments vide paragraphs 18 to 33 viz. employees who ceased to be in service after 29.09.1995 through Voluntary Retirement Scheme after rendering minimum service of service of 15 years shall be entitled to join pension fund in terms of clause 4 of Ext.P6 notifiction (para 18), employees to whom provisions of regulation 34 or regulation 46 are inapplicable shall be paid pension from the date following the date of their retirement on which they retired in terms of clause 8 (a)  of the Ext.P6 notification ( para 19), the paradoxical, absurd and impermissible nature of the amendment vide clause 8 (b) of the notification (para 20 & 21), entitlement of the petitioner to option under Ext.P2 notification, entitlement of the petitioner to superannuation pension under clause 4 of the Ext.P6 notification (para 22),  potentials of the Pension Fund to pay arrears of pension to 3,106 retired employees  within Rs.1,242.40 Crores  with no cost to the  respondents (para 23), even on paying off the arrears of pension and unlawful contributions with interest within an outlay of Rs.1,538.10 Crores, the Pension Fund will have a robust growth to foot any future pension obligation, (para 24), Pension Fund can pay four times the present pension to all the pensioners as the pay out of benefits  averaged only 23.92 percent of annual growth during 2011-12 to 2016-17 (para 25), Pension Fund is the money, property and deferred wages of employees and the respondents have zero cost in paying pension and are detaining the money in breach of trust to make a wrongful gain to them(para 26), respondents are not updating the pension of employees tweaking define provisions in the Pension Regulations and are disregarding the ruling of the Hon’ble Supreme Court in Civil Appeal No.1123 of 2015 where it was held that pension shall not be lower than 50 percent of the running pay bands in the revised pay scales (para 27), respondents are preparing for a scam on the Pension Fund through its lapse to the second respondent in course of time (para 28), the plight of the pensioners in not revising the pension in disregard of the respondents to the ruling in Civil Appeal No.1123 of 2015 of the Hon’ble Supreme Court (para 29), disregard of the respondents to the ruling of the Hon’ble Supreme Court in Civil Appeal No.5525 of 2012 viz. Bank of Baroda & Anr. Vs G Palani & Ors. where it was held that the Joint Note has no statutory basis and the Pension Regulations are binding (para 31) etc. implying that all averments in the writ petition are accurate and the averments in the CA are hollow and malicious.

25. In paragraph 11 of the CA, the respondent is submitting sans probity that “there is no illegality in the Ext.P6 notification as the same had been made only to help the employees and officers who had been continuously requesting the bank to permit them to join pension scheme”.  The averment is false as the Ext.P6 was not helping anyone and was made suo motu by the respondents with the connivance of each other for authenticating the wrongs they committed through the Ext.P4 Joint Note dated 27.04.2010. The Ext.P6 notification is a quintessence of irregularities and illegalities as it was notified in the name of the Ministry of Finance and authenticated by the General Manager (HR) of the second respondent ultra vires, it was issued from Mumbai, a place where Ministry of Finance has an office or quarters, it is devoid of clause 3 (a) between clause 3 and 3 (b), regulation 3 became devoid of sub regulation 3 (4) when it was substituted by sub regulation 3 (4) (a) and its clauses 3, 3 (b) and 8 (b) are impermissible under sections 19.1 and 19.4 of the Act 5 of 1970 to be carried out as amendments to Pension Regulations, rendering clauses 3, 3 (b) and 8 (b) of the notification void in law.

26. In paragraph12 of the CA, the respondent is submitting that the “upon their exercising fresh option to join the Pension Fund, the amounts payable to them were calculated and on the basis of additional burden cast, appropriate amounts were fixed so as to have the same paid from the employees who wanted the benefit of the Pension Fund…….as set out in Ext.P4 and P6” has no locus standi since at the time of crafting the Ext.P4, the number of employees who would join the pension scheme in terms of it was not unknown to anybody and the Funding Gap in Pension Fund projected in Ext.P4 was a mere guess work by the Indian Banks’ Association.   The further averment that “The petitioner, being entitled only to the benefit of Ext.P6 amended regulations, he is bound by all the conditions mentioned therein including the date of payment of pension…..” is in favour of the petitioner as clause 4 of the Ext.P6 is making it explicit that the petitioner having ceased to be in service through Voluntary Retirement Scheme after 29.09.1995 after rendering minimum service for a period of 15 years   is entitled to join Pension Fund with retrospective effect sequel to which he is entitled to superannuation pension from the date following the date of his retirement and the contribution of 56 percent of CPF becomes redundant and clause 8 (a) of the notification makes beyond any conundrum that  pension is payable from the date of retirement to employees to whom regulations 34 or 46 applies. The explanatory memorandum concluding the Ext.P6 notification is also stating that “interests of no person shall be adversely affected by such retrospective effect” to such amendments making it clear that its clause 3, 3 (b) and 8 (b) that are detrimental to the employees shall not be operative against anyone.

27. In paragraph 13 of the CA, the respondent is deposing that the Ext.P9 order cannot be relied upon since “the same did not consider the validity of the amendment validly carried out in the Pension Regulations as seen from Ext.P6” is false and hence disputed as it made it categorical that the Joint Note does not have statutory force and cannot supplant any of the provisions of the statutory Regulations which observation is of a general nature applicable to all cases where regulations are tinkered.
 
28. The averment in paragraph 14 of the CA that “appropriate revisions are being made in the payment of pension” is false as the second respondent has never revised the Pension of employees ever since the commissioning of the Pension Scheme” and is also stating that “the estimated growth of the pension fund as projected by the petitioner is only to be ignored since it is based on mere imagination” when the data the petitioner furnished vide Ext.P5 is actuals disseminated by the second respondent itself.   The further statement that “the petitioner cannot put in all these facts and figures and thereafter seek an adjudication of the same before this Hon’ble Court and he will have to try to ventilate his grievance appropriately” turn out derogatory, challenging the authority of this Hon’ble Court.

29. The averments in paragraph 15 of the CA that “the Bank has been making provisions towards the funding gap in the pension fund” and "the petitioner even has not made any data clear as to how there can be a revision in his pension  and the rate at which he is entitled to on account of the surplus amount in the pension fund”  are misplaced  as the claim for pension is founded on regulations 35 (1) and 56 and also the ruling in Civil Appeal No.1123 of 2012 where it was held that pension shall not be less than 50 percent of the running pay bands in the revised pay scales. Furthermore Ext.P5 unfolds that the provisions towards funding gap to the tune of Rs.1,145.96 Crores for  year ending 31.03.2011, Rs.1,013.00 Crores for  year ending 31.03.2013 Rs.1,122.00 Cores for year ending 31.03.2014 and Rs.1,483.00 Crores for year ending 31.03.2015 and  the total provision of Rs.6,810.57 Crores as per Bank’s Balance Sheet have not come into the Pension Fund Balance Sheet for the corresponding years or in the year 2016-17 evidencing that Pension Fund is diverted for purposes inconsistent with the Pension Scheme.   

The petitioner submits that the claims in the writ petition are resting on terra firma and the Counter Affidavit being untrue and hollow it is humbly prayed that the writ petition may be allowed by granting all reliefs sought.
All facts state above are true.
Dated this the 06th day of November, 2019

                                                                               DEPONENT

Solemnly affirmed and signed before me on 6th day of November, 2019 at my office at Ernakulam by the Deponent who is personally known to me.                                                                                       

Santhi K S (S-1666)
Advocate