IN THE HIGH COURT OF JUDICATURE AT MADRAS MADURAI

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MIN THE HIGH COURT OF JUDICATURE AT MADRAS MADURAI (SPECIAL ORIGINAL JURISDICTION) W.P.No. of 2020 M.S.Chandrasekaran – (M-66) S/o.M.S.Seetharam 8-19-10/144 , Malligai Malar Street, Mahatma Gandhi Nagar Madurai - 625 014 

"IN THE HIGH COURT OF JUDICATURE AT MADRAS MADURAI (SPECIAL ORIGINAL JURISDICTION)

 W.P.No. of 2020

 M.S.Chandrasekaran – (M-66) S/o.M.S.Seetharam 8-19-10/144 , Malligai Malar Street, Mahatma Gandhi Nagar Madurai - 625 014 … 

Petitioner. -Vs- 

1. The Secretary Ministry of Finance, Department of Financial Services 3 rd Floor, Jeevan Deep Building, Sansad Marg, New Delhi – 110 001. 

2. The Director, Reserve Bank Of India, Human Resource Management Department Central Office, C.O., Building, 20th Floor Sahid Bhagat Singh Marg, - Mumbai – 400 001. 

3 The Chairman. Indian Banks Association Mumbai World Trade Centre Complex Centre 1, 6th Floor, Cuffee Parade, Mumbai – 400 005 

4 The Managing Director and Chief Executive Officer, Canara Bank, Head Office, 112, J.C.Road, Bangalore- 560 002. 

5. The General Secretary, All India Bank Officer’s Confederation 1, Strand Road, P.B.No,2874 ( GPO) Kolkatta – 700 001. 

6. The General Secretary, All India Nationalised Bank Officers’ Federation, 216, Royapettah High Road, Royapettah – opp to. Deccan Plaza Hotel. Chennai – 600 014. 2 

7. The General Secretary, All India Bank Employees’ Association. Singapore Plaza, 164, Lingi Chetty Street, Chennai – 600 001. ……. Respondents

 AFFIDAVIT I, M.S.Chandrasekaran S/o. M.S.Seetharam, aged 66 years and residing at 8-19-10/144, Malligai Malar Street, Mahatma Gandhi Nagar, Madurai- 625 014, do hereby solemnly affirm and sincerely state as under: 

1. I am the Petitioner herein and as such I am well acquainted with the facts of the case. 

2. I submit that I am residing in the above said address. I have joined in the services of Canara Bank on 30-5-1977 After rendering 37 years of service in Canara Bank, I was superannuated as a Divisional Manager on.31-7-2014. 

3. I submit that in the past 50 years, the 3rd respondent of Indian Bank’s Association ( IBA – in short), on behalf of its member banks, had so far made 10 salary revision settlements popularly called as bipartite settlements with the Bank Officers’ Association led by the 5th respondent of All India Bank Officers’ Confederation – (A.I.B.O.C – in short)., and the Workmen unions led by the 7th respondent of All India Bank Employees’ Association (A.I.B.E.A,.- in short). The 11th salary revision settlement is due from 1-11-2017. I retired from the services on …….. when the 10th bi-partite settlement was in force. 

4. I submit that in all the bipartite settlements, the final settlement is preceded by a Memorandum of Understanding (M.O.U.- in short) between the I.B.A., and the Apex level unions led by the 5th and the 7th respondents.. Accordingly, by an M.O.U, dt.29-10-1993 between the I.B.A. and the Unions, pension was introduced in the Banking industry in the year 1993 with retrospective effect from 1-1-1986. The para 12 of this Pension M.O.U. specifically provides for the Pension Updation on the lines as are in force in Reserve Bank of India ( R.B.I.-in short) - the 2nd respondent herein. 

5. I submit that in pursuant to the M.O.U., on Pension, the minutes of the meeting of the Small Committee on Pension that was held on 26 March 1994 concluded that the formula for updating pension should be on the lines of the same given in the Reserve Bank Pension scheme. Any change therein should be introduced only after mutual agreement. It was as a sequeal to the M.O.U. on pension, the Bank Employees Pension Regulations -1995 were statutorily put in place. 

6. I submit that Pension was thus introduced as a terminal benefit in lieu of Bank’s Contributory Provident Fund (C.P.F.- in short) on the condition of employees surrendering the accumulated C.P.F., towards the Pension Fund. Whereas, the future 3 C.P.F..contributions by the employer Bank shall be accounted for in the Self-sustaining Pension Fund. 

7. I submit that in the matter of Pension updation, the regulation 35 (1) of the Pension Regulations -1995 statutorily mandates the Updation of pension by providing that “ Basic Pension and additional pension, wherever applicable shall be updated as per the formulae given in Appendix-1”. The Appendix-1 provides for the Pension updation formula for officers retired upto the period of 31-10-1994.

 8. I submit that as the Pension Regulation-1995 statutorily came into force since the year 1995, the pension updation formula in Appenxix-1 covers those retired earlier to the year 1995. It is only by applying this pension updation formula as provided in Appendix 1, those retired prior to 1-11-1987 were drawing pension on par with those retired under the 1-11-1987 settlement. Moreover, the pension for all those retired prior to 31-10-1994 also stood updated as per the formula set out in Appendix-1 of the 1995 regulations which is applicable to all the pensioners. But, the Pension updation formula for those who are going to retire subsequent to 31-10-1994 is not put forth in the Pension Regulations made in the year 1995 as the updation has not crystalised at that point of time for the future retirees. .

 9. I submit that not only the updation of pension but also the updation of the Dearness Relief (D.R.- in short) formula payable on the basic pension for those going to retire subsequent to the period 31-10-1994 is also not provided in the 1995 regulations. Therefore, the D.R for those who retired after 31-10-1994 and whose pension was not updated are paid D.R that was declared once in 6 months on an ad-hoc basis only for the past 27 years. This clearly indicates that pension and the D.R. thereon will be revised / updated along with the salary revision that takes place once in five years.

 10. I submit though it is statutory requirement that pension needs to be updated along with salary revision made once in five years for the serving employees in the bipartite settlements, basic pension stands frozen at a particular level or remains stagnant and static without any review/revision/updation for those retired after 1-11-1994. As a consequence, pension on the revised Basic pay for those retired during particular a settlement span becomes a static one in the run-up, at the time of subsequent wage revision settlement, because there is no updation. 

11. I submit that in the Banking industry because of the non-updation after 31-10-1994, every wage revision settlement span viz on 1-11-2002, 1-11-2007 and 1-11-2012 has created a group of pensioners from the subsequent settlement getting a higher quantum of pension consequent upon their improved basic pay while at the same time relegating the pension of those retired during the preceding settlements as the static one. 

12. I submit that the Pension updation is nothing but realigning the basic pension of the past retirees with the basic pension of the subsequent retirees. It is due to the 4 non-updation since 1-11-1994, members of the same pension fund holding similar positions in the organization with same service are discriminated in fixation of their basic pension as the person privileged with higher quantum of basic pension is retired on the day after the date of settlement. This discrimination is imposed and recurring on every settlement span. 

13. I submit that all the pensioners irrespective of their date of retirement draw their pension from the one and the same Pension Fund under identical pension rules. But it is a travesty of justice that persons holding similar positions are discriminated in fixation of Basic Pension on the basis of their date of retirement. This is in flagrant violation of the Nagara’s case that “ There can be no discrimination between pensioners who form one homogeneous class and all pensioners can have only one formula of pension payment.” 

14. I submit that those joined the service after 31-3-2010 are covered under the New Pension scheme and the Pension Fund is intended to service only for those joined upto the period of 31-3-2010. Therefore, in due course, with the extinct of pensioners, the pension out go from the 4th respondent bank Pension Fund will stop and the left over pension corpus will vest with the 4th respondent bank. The present Pension fund corpus of all Public Sector Banks put together is huge and mammoth at the level Rs. 2,70,000/- Crores to take care of all sorts of pension updation. Though the Pension fund is intended only to pay for the Pension or family pension, the lump sum Special Voluntary Retirement Package was also serviced from the Pension Fund. 

15. I submit that the residuary regulation 56 of the Pension Regulations-1995 makes it abundantly clear that the pension scheme is a replica of Central Civil Pension Rules by stating “ 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”. 

16. I submit that though the pension updation is not provided in the Central Civil Services rules, the Central Civil pension is updated regularly with the implementation of each Pay Commission commencing from the Vth Pay Commission i.e. from the year 1996 onwards, out of the exchequer. More so, additional pension is entitled for those aged 80 and above Whereas, in banks, though the updation is statutorily mandated and the pension payment is from the Funded scheme, the Basic Pension is not re-set or updated in tune with the increase given to the employees in the wage settlements made once in five years. 

17.. I submit that the regulation 35 (1) statutorily mandates the updating of Basic pension wherever applicable and regulation 56 making it clear that the pension scheme is exactly on the premise of the Central Civil Pension. Further, the Pension M.O.U. for Bank employees dt. 29-10-1993 adopted the 2nd respondents pension updation 5 scheme. As the consequence, though the respondents have earlier updated the pension and the family pension for those retired upto 31-10-1994 and since then pension is not updated both in the RBI and in the Public Sector Banks. . 

18. I submit that now after a lapse of 27 years, the 2nd respondent RBI has updated their pension as well as the family pension. Be it so, the 3rd respondent of IBA which adopted the RBI pension updation, instead of updating both the Pension as well as the family pension, has now chosen to update the family pension alone. Though no updation is done since 31-10-1994, only family pension is now declared as updated by the 3rd respondent IBA vide the M.O.U. dt.22-7-2020 leaving the Pensioners in limbo. The IBA by restricting the updation only to family pension, and by not updating the pension has discriminated the pensioners besides depriving them of their right to live with dignity and peace of mind in their old age. 

19. I submit that the Right to property is a constitutionally guaranteed right under Art. 300 A of the constitution. The Right to receive Pension is treated as property under Article 31(1) and 19 (f) of the Constitution making it clear that the respondents are unlawfully detaining the money and property of the retirees with the covert intention of reserving it for their captive use in the long run. 

20. I submit that as the Pension M.O.U. dt. 29-10-1993 specifically provides for updation on RBI Lines and whereas the RBI after a span of 27 years has now updated the pension as well as the family pension, the same is ipso facto applicable to Public Sector bank (PSB – in short) retirees. Therefore, pension ought to be updated in PSB’s along with the family pension updation that was declared by the IBA in the M.O.U. dt.22-7-2020. 

21. I submit that the respondents are well aware that Pension is declared not as 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 the past service. 

The Pension updation is demanded every time by the unions led by 5th and the 7th respondents including in the current 11th bipartite Charter of Demands and also struck work on several times demanding the same. Yet, the 3rd respondent is all along elusive and at last declared to update the Family Pension only vide the M.O.U., dt.22-7-2020, but silent on the Pension updation. 

The statutorily vested updating of pension out of pensioners own deferred wages held in trust in Pension fund, is deprived to the surviving pensioners aged between 60 to 90 and above. The 3rd respondent’s decision to update family pension alone and depriving the updation to Pensioners is irrational, arbitrary, discriminatory and is against natural justice. 21. 

It is submitted that the Apex organizations which have considerable membership among Bankmen and which were also the signatories to the earlier settlements and 6 which participated in the 11th bipartite negotiations all along, declined to accept the 22-7-2020 dated M.O.U., which declares updation of family pension alone.

 More so, several Hon’ble Members of Parliament have urged the Finance Minister, under whose control the 1, 3 and the 4th respondent functions, to set right the M.O.U., dt.22-7-20 as it is anti-bankmen and unconstitutional. 

Though the 5th respondent A.I.B.O.C.,along with the Apex Officer unions have signed M.O.U., dt. 22-7-2020, whereby the IBA has declared only family pension updation, now strongly urged to update the pension also vide joint their letter dt.3-10-202, yet the IBA is sticking on their stand of family pension updation only.

 22. It is submitted that the 6th respondent of All India Nationalised Bank Officers’ Federation (A.I.N.B.O.F.-in short) is having umbilical relationship with PSB Officers including the officer staff of the 4th respondent Bank and had raised the Pension updation issue at all the forums including before the Chief Labour Commissioner(Central) at Mumbai. 

Additional Pension for those aged 80 and above is also assertively put forth by A.I.N.B.O.F., Yet, the IBA protracts the updation issue by stating that it has to be decided by the 1st respondent and as the consequence its member banks are not discharging their statutory duty of pension updation. 

23. It is submitted that it is amidst the story of IBA that the updation is the role of the Government, the Hon’ble Union Minister for Finance under whose control the IBA and its member banks functions, has categorically confirmed in writing that the updation of pension is the matter to be settled between the Unions and the IBA. 

Despite the Hon’ble Union Finance Minister’s clarifying the position on Pension updation, the 3rd respondent, IBA is in a hurry to expedite the M.O.U., dt,22-7-2020 that concerns only with the family pension updation which is arbitrary. 24. In the aforesaid circumstances and despite the Hon’ble Union Finance Minister’s clarification on Pension updation, if the 3rd respondent of IBA concludes the 11th bipartite settlement by restricting the updation only to family pension without updating the pension, this unconstitutional action on the part of IBA would lead to an irreparable recurring monetary loss and mental agony for all the retirees who are aged 60 to 90 and above.

 I submit that at present there are more than 73000 pensioners in the 4th respondent Bank and more than 3,50,000 pensioners in all the Public Sector Banks put together and are prolonging the life with their handful of medicines for their ailments inherited by them due to the work stress during their course of employment and are aged 60 to 90 and above. 

Hence, left with no other alternative and for the speedy and efficacious remedy, I am but to seek the protection of this Hon’ble Court under Article 226 of the Constitution of India seeking relief among other on the following grounds: 7 Grounds: 

a). The Pension M.O.U. dt.29-10-1993 in Public Sector Banks mandates updation on the lines of RBI Pension updation. After 27 years impasse, the RBI has updated its retirees pension as well as the family pension on March 2019. The 3rd respondent of IBA is also duty bound to update the pension in Public Sector Banks as provided in pension M.O.U., dt. 19-10-1993 and on the lines of RBI pension updation. Whereas, IBA had declared to update only the family pension. IBA’s action of Not updating the Pension but updating the family pension alone is arbitrary and unconstitutional. 

b) The 1st respondent Ministry of Finance has vide their communication F.No. 11/5/2001 –IR dt. 5-3-2019 endorsed the updation of Basic Pension in the 2nd respondent R.B.I. on the multiplier factor of 1.5 for retirees as on 1-11-2002, 2.06 as on 1-11-2007 and 3.63 as on 1-11-2012. Whereas the 3rd respondent IBA has updated family pension only at 30 %. The respondents action of not updating the pension is unconstitutional. 

c) The regulation 35 (1) statutorily mandates the updating of Basic pension wherever applicable and regulation 56 making it clear that the pension scheme is exactly on the premise of the Central Civil Pension. Further, the Pension M.O.U. for Bank employees dt. 29-10-1993 adopted the 2nd respondents pension updation scheme. As the consequence, though the respondents have earlier updated the pension and the family pension for those retired upto 31-10-1994 and since then pension is not updated both in the RBI and in the Public Sector Banks. Now that the RBI has updated the Pension and the same is ought to be adapted and the pension in PSB ought to be updated. . 

d) The respondents are bound by the Pension regulations 35 (1) and 56 to revise the basic pension in tune with the revision in pay arising out of every Bipartite settlements.. As both the pension and the family pension are paid from the same Pension Fund and as the family pension is the off-shoot and corollary to the Pension, updating the family pension alone declared vide M.O.U., dt.22-7-2020 without updating the Regular Pension is discriminatory, irrational and unconstitutional. 

e). The very purpose of prescribing pension at 50% of last drawn average pay of 10 months for full qualifying service is to ensure that status is maintained even after retirement and the very purpose of revising pay through wage revision is in recognition of erosion of real wages. Pensioners having identical service and with one and the same rank and having same inflation and expenditure to meet cannot draw different pension and such a scheme is not be called as rational, under the Directive Principles of State policy.

 In the light of the relationship between cost of living vis-à-vis pay revision, there is rational necessity to update the pension as well as the family pension and not to restrict the updation to family pension alone as declared in M.O.U., dt.22-7-2020. Family pension used to be updated after updating the Pension. 

As the Pension updation being 8 the statutory right, the Pension ought to be updated in unison with family pension updation declared vide.M.O.U., dt.22-7-2020. I have not filed any other writ petition seeking similar relief. 

However, in W.P. (MD).Nos. 19947/2018, 21195/2018 22161/2018 and 21535/2019 pending before this Hon’ble Madurai Bench of Madras High Court, the aggrieved bank employees have prayed for wage revision in accordance with the charter of demands submitted to the IBA and as per the 7th Central Pay Commision formula by implementing the Government notification of equating Bank Officers income with Group “A’ service income and as the consequence to fix Group “A” equal pay, running scale of pay without stagnation besides also the pension updation and wage revision in accordance with the Code on Wages Act-2019 to match the standard of living and nature of work attendant on that job. 

All the four Writ Petitions stood admitted by the Hon’ble Madurai Bench and an interim order against IBA was granted in W.P.(MD) No.22168/2019 as “ Any decision is subject to the result of this Writ Petition”. The abovesaid Writ Petitions Nos. 19947/2018, 21195/2018 22161/2018 and 21535/2019 were filed by those coming under the 11th bipartite settlement whereas, I have retired during the 10th settlement span. I have filed this W.P., praying for the simultaneous updation of Pension along with the family pension whereas in the impugned M.O.U. dt.22-7-2020, the IBA has declared only family pension updation.. As the disputed wage revision of sub judice matter pending in W.P.(MD) Nos. 19947/2018, 21195/2018 22161/2018 and 21535/2019 as well as the arbitrary updation of family pension sans pension updation which is declared by IBA is through the one and the same impugned M.O.U.,dt.22-7-2020, the current Writ Petition may be please be heard jointly with the abovesaid admitted Writ Petitions and thus render justice. .

 It is submitted that despite the pendency of this Hon’ble Court’s interim order against IBA in W.P.(MD). 21535/2019 and without the leave of this Hon’ble Court, the IBA, in their open defiance to the Rule of Law has chosen to enforce the issues pending for adjudication in the aforesaid Writ petitions.

 The IBA is determined to conclude the sub judice matter of the 11th bipartite settlement through the impugned M.O.U., dt.22-7-2020 along with the family pension updation declaration only.. 

It is submitted that in the event of IBA concluding the 11th bipartite settlement by restricting the updation to family pension only without updating the Regular pension, this selective discrimination results in an irreparable recurring monetary loss for all the retirees who are aged 60 to 90 and above.

 It is therefore just and necessary to grant an injunction on the 3rd respondent of IBA from proceeding further on the impugned M.O.U. 9 dt. 22-7-2020 till such time the pension is also updated and to grant an adinterim injunction till the disposal of this petition and thus render justice.

 It is most respectfully prayed to issue a Writ or Direction more in the nature of Mandamus directing the respondents to update the Pension as on 1-11-2002, 1-11-2007 and 1-11-2012 by complying with the Pension M.O.U., dt.29-10-1993 and also in the light of the pension updation implemented by the 2nd respondent of R.B.I, in March 2019 after 29 years wait and by considering the pension updation factors approved by the 1 st respondent in their communication F.No. 11/5/2001 –IR dt. 5-3-2019 and also in compliance of the pension updation statutorily mandated as per 35 (1) and 56 of the Pension regulations-1995, by duly taking into account the Special Allowances that ranked for Provident Fund and other terminal benefits and to direct the 4th respondent to pay the revised pension and additional pension for those aged 80 and above with arrears and to grant any other relief or such other reliefs as this Hon’ble Court may deem fit and proper on the facts and circumstances of the case and thus render justice. 

Solemnly affirmed at Madurai on this 9th day of October -2020 BEFORE ME and signed his name in my presence ADVOCATE".

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Writ Petition filed by We Bankers demanding action from the Government in accordance with the mandatory provisions of Section 12 (5) of Industrial Disputes Act, 1947 with regard to its demand for equality in the matter of Salary Pension and number of days per week working at par with Central Government Employees was heard in High Court. In accordance with the direction given on 06.10.2020, the Government Advocate Sri Manoj Kumar Singh produced a letter received from Ministry of Labour & Employment wherein it has been mentioned that conciliation proceedings with regard to Industrial Dispute raised by We Bankers is still pending before Chief Labour Commissioner (Central) and next date for joint discussion will be fixed after consultation with both the parties as Indian Banks Association has informed that they are in the process of resolving the issue through bilateral talks. Hon'ble Justice felt annoyed over the information given by Learned Counsel of the Government and asked when Conciliation Officer vide his letter dated 11.06.2020 has informed the Government about Failure of Conciliation, how under these circumstances another date for joint discussion is fixed instead of taking action under Section 12 (5) of the Industrial Disputes Act, 1947? The Government Advocate could not reply and satisfy the Hon'ble Judge. Consequently, Hon'ble Judge instructed Additional Solicitor General of Government of India to remain present in the court on next date to apprise the Court about the true factual position.  The next date fixed is 22nd October 2020.

It is undoubtedly clear that We Bankers is making honest efforts to put an end to the tradition of selling the rights of Bank Employees in the name of collective bargaining and treating them as commodity in the matter of fixation of Salary and Pension on the basis of Paying Capacity and negotiating in percentage terms. We Bankers has challenged the authority, competence and powers of the Indian Banks Association to negotiate and sign the settlement on behalf of employer banks stating that Indian Banks Association is constantly and repeatedly explaining its position that it has not been created by any statute, it is not registered under the Trade Unions Act, 1926 or Societies Act, 1881, it is not amenable to writ petition and it is not a "Public Authority" under the Right to Information Act, 2005. We Bankers has raised objection citing Section 36 of the Industrial Disputes Act, 1926 and has said that Indian Banks Association cannot validly represent the Employer Banks. Under these circumstances, it would be fair and reasonable in the interest of justice that illegal Indian Banks Association is replaced by National Tribunal as per scheme provided in law.

If We Bankers succeeds in its honest efforts and Government considers its demand in accordance with the mandatory provisions of Section 12 (5) of the Industrial Disputes Act, 1947 by referring the matter to National Industrial Tribunal or referring the same to specifically constituted Pay Commission exclusively for Bank Employees, it would mean end of 54 years old tradition of Bipartite Settlement which is responsible for present pathetic condition of Bank Employees.  We Bankers has made every possible attempt to convince constituent Unions of UFBU to agree to its demand because adjudication through National Tribunal would bring transparency into the system resulting into increased faith and trust of bank employees in their Trade Unions. We are unable to understand as to why leaders of United Forum of Bank Unions are opposed to replacement of Indian Banks Association by National Tribunal. As a matter of fact, National Industrial Tribunal would provide equal opportunities to all the Unions to place their view points before it and its Award would disclose the reasons for agreeing or not agreeing to these view points and bank employees would become aware of these reasons.

Now it is time for Bank Employees both working as well as retired to take a final decision as to whether they want to be treated like a commodity giving right to 10-12 persons as UFBU to sell out their rights in the name of collective bargaining and negotiating in percentage increase terms or they want determination of their Salary and Pension scientifically in accordance with the norms set by Indian Labour Conference/Pay Commission by taking into account the necessities of life more so when Government of India itself has decided equivalence of post thereby treating Bank Officer in JMGS-1 equivalent to Class 1 Officer of the Central Government and Clerical and Sub Staff Employees equal to Grade C Employees of Central Government.

It is  time to revolt against present system by resigning from existing Unions in protest against the percentage increase game thereby communicating the leaders of UFBU that majority of Bank Employees no more want to be guided by unholy and sinister relationship between IBA and UFBU.