Letter to GoI Regarding Denial of 100% DA to Old Retirees and Other Similar Issues
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We have received the following letter from one of retired bankers who have been fighting for the rights of bankers:-
S. Ramachandran Kunal Icon, Building no. A8,
Former General Manager Bank of Baroda. Flat no. 104, Pimple Saudagar,
Former Chairman & CEO - The Sangli Bank Ltd. Aundh Camp, Pune 411027
(Now merged with ICICI Bank Ltd.) Tel: 020 27201012.
Former Administrator Madhavpura Mercantile E-mail id- firstname.lastname@example.org
Co-op Bank Ltd (Ahmedabad)
Former Director General Maratha Chamber of Commerce
Industries & Agriculture, Pune.
BY SPEED POST
Shri Gurdial Singh Sandhu, 18THJUNE,2014
Secretary,Department of financial services,
Ministry of Finance,Jeevan Deep Building,
3RD FLOOR,10, PARLIAMENT STREET,
NEW DELHI 110001
Re: ILLEGAL ARBITRARY DENIAL OF
1.100%DA NEUTRALIZATION TO SENIOR CITIZENS WHO RETIRED FROM THE BANKS SERVICE PRIOR TO NOVEMBER 2002
2.DENIAL OF FAMILY PENSION AS PAID TO GOVT AND RBI EMPLOYEES.
3.DENIAL OF PENSION UPDATION FROM TIME TO TIMEAS IS GIVEN TO GOVT AND RBI EMPLOYEES.WHICH IS VIOLATIVE OF ARTICLE 14 AND 16 OF THE CONSTITUTION OF INDIA
I regret to bring it to your kind attention that BANK OF BARODA and other PSU banks are illegally, arbitrarily denying the above rights of the pensioners as per the wrong advise of IBA
To enable you to decide in the matter I request you to go through the following.
:a) those who retired after 01.01.1986 to 31.10.1993;
b) those who retired after 01.11.1993 to 31.10.1998;
c) those who retired after 01.11.1998 to 31.10.2002
d) those who retired after 01.11.2002 to 31.10.2007;
e) those who retired after 01.11.2007.
In case this trend is not checked there will be further classes of pensioners at the time of subsequent revisions of pay scales.
The PENSIONERS entered the service of the bank/banks and after serving for more than the qualifying period of service they retired from various posts in officers’ cadre on various dates. They are therefore entitled to full pension commensurate with the pay scales as applicable at the time of payment thereof irrespective of the dates of their retirement.
That in exercise of the powers conferred by clause (f) of sub section (2) of Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 the Board of Directors of Bank of Baroda after consultation with the Reserve Bank of India and with the previous approval of the Central Government vide Notification No. HO: PEN: 87/780 made the Bank of Baroda Employees’ Pension Regulations, 1995(hereinafter referred to as ‘the Pension Regulations’ for short).
It is relevant to mention that by these regulations, the pension to the retired officers in the Bank was brought into the effect retrospectively from 1-1-1986 and the Joint Note dt.29-10-1993 which had formed the basis for introduction of pension in BANK OF BARODA as well as various other Public Sector Banks in the country inter-alia provided that there would be updating of pension from time to time on the lines as in force in Reserve Bank of India.
The said Pension Regulations were made applicable to all the employees who were in service of Bank of Baroda on or after 1st November, 1993; all the employees who were on the rolls of the Bank as on 31.10.1993 were entitled to exercise their option for Pension on or before 30th September, 1994. All the employees of the Bank who were in the service of the Bank on or after 01.01.1986 to 31.10.1993 on their exercising the option were to be governed by the Pension Regulations on refunding the contribution to Provident Fund of the Bank with interest at the rate of 6% simple rate of interest from the date of their retirement up to 31.10.1993 and start getting pension from 01.11.1993 and those employees who have retired on or after the 1st November, 1993 but before the notified date and exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund and refund the entire amount of the Bank’s contribution to the Provident Fund and interest accrued thereon together 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; however, for the employee joining service after the notified date the Pension Regulations were compulsory and the employees on retirement were to receive pension along with Dearness Relief as applicable. The Pension Scheme was in lieu of the Contributory Provident Fund.
That the important terms that are relevant for the purpose of the present APPEAL as defined in the Pension Regulations are as under:
1. “employee” means any person employed in the service of the bank, on full time work on permanent basis or on part time work on permanent basis on scale wages and who opts and is governed by these regulations, but does not include a person employed either on contract basis or daily wage basis or on consolidates wages”
In relation to an employee who had either retired or died after the 1st day of January, 1992 and in relation to an officer who had either retired or died on or after the 1st day of January, 1986 but before the 1st day of July, 1993
The basic pay including stagnation increments, if any, and
(a)All allowances counted for the purpose of making contribution to the Provident Fund and for the payment of dearness allowance;
In relation to an employee who had retired or died while in service on or after the 1st day of November, 1992; and in relation to an officer who retired or died while in service on or after the 1st day of July 1993
The basic pay including stagnation increments, if any and
All other components counted for the purpose of making contribution to the Provident Fund and for the payment of dearness allowances; and
Increment component of Fixed Personal Allowances;
Dearness allowances thereon on the above calculated up to index number 1148 points in the All India Average Consumer Price Index for Industrial Workers in the series 1960=100;
In relation to an employee who retired or died while in service on or after the 1st day of April, 1998-
The basic pay including stagnation increments, if any, and
All other components of pay counted for the purpose of making contribution to the Provident Fund and for the payment of dearness allowances and
Increment component of Fixed Personal Allowance; and
Dearness allowances thereon the above calculated up to Index Number 1616 points in the All India Average Consumer Price Index for Industrial Workers in the series 1960=100,
In respect of an Officer, who is a member of Pension Fund, who retires or dies while in service or otherwise ceases to be in employment on or after 01.05.2005, Pay for the purpose of pension shall mean Basic Pay including Stagnation increment, Professional Qualification Pay Increment, component on Fixed Personal Pay and official allowance
Pension includes the basic pension and additional pension referred to in Chapter VI of these Regulations;
Pensioner means an employee eligible for pension under these Regulations;
“Service Regulations” means Bank of Baroda (officers’) Service Regulations, 1979 made under section 19 of the Act of 1970.
That Chapter VI of the Pension Regulations provides for rate of pension. In sub rule (2) of Rule 35 of Pension Regulations, it is provided that “In the case of an employee retiring in accordance with the provisions of Service Regulations or settlement after completing a qualifying service of not less than thirty-three years the amount of basic pension shall be calculated at fifty percent of the average emoluments. As per the provisions of this Rule the Pension of a Pensioner shall be 50% of the basic pay as may be drawn by him, as defined above, on the date of retirement in the pay scale as applicable on that date. ’
That the Bank of Baroda vide its circular dated 28.06.1995 made amendments in the Bank of Baroda (officers’) Service Regulations, 1979 whereby the pay scales of Officers of the Bank were revised effective from 01.11.1992. The fitment in the new pay scales was to be done on stage to stage basis. Thus the then existing scales of pay came to be substituted by the new pay scales and the old pay scales ceased to exist.. Besides, stagnation increments were also applicable to some of the cadres on the terms and conditions as mentioned in the said notification. The benefits of revision of pay scales and other benefits came to be made applicable from the dates as mentioned herein below.
i). House Rent Allowance on revised basis pay 01.11.1992;
ii) Scales of Pay and Dearness Allowances from 01.07.1993;
iii) Compensatory Allowances, Provident Fund, Advance increment and Fixed Personal allowances from 01.11.1993
The pay scales again came to be revised from 01.04.1998 in terms of negotiations with the nationalized Banks representatives and various employees of Officers and the representatives and various employees of Officers and the representatives of the Indian Banks’ Associations. These fitments in the new pay scales were to be done on stage to stage basis. The Bank of Baroda (Officers’) Service Regulations, came to be revised accordingly.
The scales of pay, which had come to be revised effective from 01.04.1998 again, were revised by fresh pay scales and the old pay scales ceased to exist with effect from 31-10-2002. These Pay Scales were enforced by amending the Bank of Baroda (officers’) Service Regulations with effect from 1st November, 2002. The fitment in the salary of the Officers was to be done on stage to stage basis. With regard to pensions the Joint Note with regard to salary revision for officers- the conclusions between the India Banks’ Associations and various ‘In-Service’ Officers’ Associations states that “in respect of an officer other than the officer in State Bank of India, who is a member of the Pension Fund, who retires or dies while in service or otherwise ceases to be in employment on or after the 1st of May, 2005 “Pay” for the purposes of pension shall be the pay last drawn by the officers employee prior to his retirement/death shall mean Basic Pay including Stagnation Increment, Professional Qualification Pay, increment component of Fixed Personal Pay and Officiating allowances.
Once again the pay scales of officers of the respondent Bank came to be revised on and from 1st November, 2007 as result of negotiations which took place between the Indian Banks’ Association and various Associations of ‘In-Service’ Officers. Thus the old pay scales as existed before 1st November, 2007, came to be substituted by these pay scales and the old pay scales did not exist from 1st November, 2007. These pay scales came into existence on account of the provisions of the Bank of Baroda (Officers’) Service Regulations, 1979. The fitment was again to be made on stage to stage basis. With regard to Pension the Joint Note provides as under:
With effect from 1st May 2005, the pension of offices who retired or died while in service during the period 1st April, 1998 to 31st October, 2002 will be re-fixed based on the definition of “Pay” as defined in Clause 5 of the Joint Note dated 14th December, 1999. No arrears of pension and commuted value of pension will be payable on account of such re-fixing of pension.
With effect from 1st May 2005, the pension of officers who retired or died while in service during the period 1st November, 2002 to 30th to 30 April, 2005 will be re-fixed based on the definition of ‘Pay’ as defined in clause 6 of the Joint Note dated 2nd June, 2005. No arrears of pension or commuted value of pension will be payable on account of such re-fixation of pension.
That besides the above, Regulation 56 of the Pension Regulations also provides as under:
“56 Residuary Provisions: In case of doubt in the matter of application of these regulations regards may be had to the corresponding provisions of the Central Service Rules 1972/1982 applicable to the Central Government Employees with exceptions and modifications the Bank with the previous sanction of the Central Government may determine.”
In other words, a specific provision is required to be made for updating the Basic Pension in consonance with the revision of pay scales granted to the serving employees from time to time.
In fact it can be seen that the first updation took place in the Pension Regulations made in 1995 even before the evolving the scheme as contemplated on 29-10-1993.
This was done under Regulation 35 laying down updation for those retired between 1-1-1986 and 31-10-1987 when they were drawing the Basic Pay in the prevailing scales of pay and they were brought in line with those who retired subsequent to 31-10-1987.
That in fact the Committee of Indian Banks’ Association (IBA), in its report dated 26-3-1994 affirmed that the formulae for updation of the pension on the lines of RBI Pension Scheme should be brought in to effect.
Besides the above, it is worth noting that the Pension Schemes in Banks are broadly on the pattern of pension schemes available to the Government of India Retirees and Reserve Bank of India (RBI) retirees; though as per the above provisions the pensions of the employees retired earlier ought to have been revised commensurate with the pay scale as they existed as on the date of payment of pension, but the BANK OF BARODA AND OTHER PSU BANKS have not revised the pensions of the employees.
The rate of pension as per the Pension Regulations is 50% of the basic pay to be calculated and counted as per the definition of ‘Pay’ given hereinabove and the petitioners were entitled to get the same but the BANK OF BARODA and other PSU banks have been paying the pension at the rate of 50% of the basic pay of the pay scales on the date of payment of pension, which does not exist at all.
Though as per the above provisions the pensions of the employees retired earlier ought to have been revised commensurate with the pay scale as they existed as on the date of payment of pension, but the BANK OF BARODA and other PSU BANKS have not revised the pensions of the employees.
That the retired officers of the BANK OF BARODA are still employees and shall remain so up to the date of death, as defined in the Pension Regulations, therefore, the retired employees are entitled to be treated equally and in the similar manner as in service employees for all purposes. Furthermore through various judgements of the apex hon. supreme court, it is well established that the pension is deferred wage, and therefore, the same also cannot be left unchanged when the salaries of all the other employees are revised and upgraded.
The pension is a management expenses and it has to be met with from the earnings of the Bank as in other cases. The Central Government which is the main Stock holder of the Bank and which is also enjoying the benefit out of the earnings of the Bank by way of getting hefty dividends being its main Stack holder and owner is also liable to part with some of its earnings to meet with the fundamental rights and legitimate expectations of the Pensioners. The pensioners should be able to live a life with human dignity and some decency at a time when after having giving a major portion of their lives to the bank and when the general cost of living is spiraling upward and the cost of health care is also spiraling upward due to advancing ages it is all the more necessary for the employer to take in to account all these factors and implement the policy decision taken for the updation of the pension.
The BANK OF BARODA and other PSU banks have to meet with the obligations as an employer as well as being State its objectives of a socialistic and welfare State. Hon’ble Apex Court has time and again made it clear that the duty cast on the State cannot be whittled down in any manner, either by pleading paucity of funds or otherwise. There is no paucity of funds in the present case.
The pension is being paid out of the Pension Fund, which comprises, inter alia, of the contribution of the employer and other sources as mentioned in Rule 5 of the Pension Regulations. Rule 5 is reproduced hereunder for ready reference
“5. Constitution of the Fund (1) The Bank shall constitute a Fund to be called the “Bank of Baroda (Employees’) Pension Fund under an irrevocable trust within one hundred twenty days from the notified date
(2) The Fund shall have for its soles purpose the provisions of the payment of pension or family pension in accordance with these regulations to the employee or his family.
(3) The Bank shall be a contributor to the Fund and shall ensure that sufficient sums are placed in it to enable the trustees to make due payment to beneficiaries under these rules.
That Rule 7 of the Pension Regulations provides for Composition of the Fund. It provides that the Fund shall consist of the following:
The contribution by the Bank at the rate of ten percent per month of the pay of the employee;
The accumulated contributions of the Bank to the Provident Fund and interest accrued thereon up to the date of such transfer in respect of the employees.
The amount consisting of contributions of the Bank along with interest refunded by the employees who had retired before the notified date but who opt for pension in accordance with the provisions contained in these Regulations.
The investment in annuities or securities purchased out of the money of the Fund and interest thereon;
Amount of any capital gains arising from the capital assets of the fund
The additional annual contribution made by the Bank in accordance with the provisions contained in Regulation 11 of these Regulations.
Any income from investments of the amounts credited to the fund;
The amount consisting of contribution of the Bank along with interest refunded by the family of the deceased employee.
The Rule 11 of the Pension Regulations also provide: -
. Actuarial investigation of the Fund. - The bank shall cause an investigation to be made by an Actuary into the financial condition of the Fund every financial year on the 31st day of March, and make such additional annual contributions to the Fund as may be requires to secure payment of the benefits under these regulations.
Provided that the Bank shall cause an investigation to be made by an actuary into financial condition of the Fund. As on the 31st day of March immediately following the financial year in which the Fund is constituted. It is thus clear that BANK OF BARODA is to make adequate contribution to the Fund to enable it to make payments of the Pension and Family Pensions.
BANK OF BARODA has created various categories of pensioners though they constitute a homogeneous class and the benefits of updation of pension with each pay revision (of In-Service employees) has to be extended equally to all retirees irrespective of their date of retirement and could not be confined only to those retired on or after a particular date. There cannot be mini-classification amongst the pensioners on the basis of different dates of retirement. All the pensioners in the BANK OF BARODA form a homogeneous class and any further classification amongst them is a hostile discrimination and arbitrary, violative of Articles 14 and 16 of the Constitution of India.
The employers have an obligation to ensure that the employees having served the institution almost life time are provided adequate superannuation benefits so that they are able to live a life of dignity, honour and above all a comfortable life for having given their blood and sweat to the institution.
1.1 On 17h Dec., 1982, the Constitution Bench of Supreme Court in a landmark decision declared:
1.2 “Pension is a right, and it is a deferred wage. Nor, it is a favor or concession extended by the employer.”
1.3 But in the case of Bank employees, the Central Government (the main employer) is trying to establish that pension is not a right, but a favour given to the retirees - while on the other hand, they have accepted the principal of updation of Pension in case of their own employees. This is nothing but gross discrimination and practicing of double standards.
1.4 Every time when there is a revision of pay in the case of central and state employees, their pension also gets revised. The same is the case with Public Sector Undertakings also.
1.5 But pensioners numbering over 500,000 all aged between 60 and 90 years are denied the benefit of revision of pension, by the Central Government and the IBA.
1.6 During the last two decades innumerable representations and memoranda were submitted by the retirees, to revise the pension, but the authorities have closed their eyes and have not done anything in this regard.
1.7 In case of the Central Government Employees, the 6th Pay Commission had taken a very pragmatic view on the last 3 Pay Commission Reports and had made very substantial changes in the pension payable to the Central Government retirees. There were comprehensive improvements in the case of Pensioners and Family Pensioners in the Central Government. The improvements made in the Pension scheme in the areas like up-dation and up-gradation of the Pension, the rationalization of Dearness Allowance, Family Pension etc.,
1.8 The 6th Pay Commission scales with certain modifications in a way more beneficial to the Public Sector officers have been implemented without any hesitation. Whenever a reference is made to these developments, the authorities concerned take lame excuse of the salary being revised to them on the basis of the Pay Commission which is once in 10 years. This cannot be justified to cause huge disparity between Bank Officers and Group "A" Officers. Such erosion in the value of emoluments defies logic of parity at the time of implementation of Pillai committee Recommendations. The concept of Merger of DA when it exceeds 50% with Basic Pay ensures protection of superannuation benefits which is missing in case of Bank Employees. There is an urgent need to take the similar views as regards the Pensioners in the banking industry as well.
1.9 The periodical review of Pension scheme is the responsibility of the Managements of the Banks. It cannot be tagged to bipartite settlements which have adversely affected the pensioners and ultimately the pension scheme remains as an archaic one in the Banking Industry. As and when there are improvements in the central Govt. Pension scheme.
1.10 Therefore, they form a separate class and when the pay scales of different cadres of Officers are revised then the up-gradation of pension to the Pensioners Class cannot be denied..
1.11 That when the class of Pensioners is requires to be taken as one class this mini classification is writ large since different classes have been created as on 01.07.1993, 01.04.1998, 01.11.2002 and 01.11.2007 for the present. But since the pensioners are still EMPLOYEES as defined in the Pension Regulations, they are also entitled to updation/upgradation of their pension, which is a DEFERRED WAGE as per the law laid down time and again by Hon’ble Apex Courts therefore, they form a separate class and when the pay of different scales of Officers are revised the wages of this Class cannot be denied.The comparative tables of the pensions in connection with this disparity are given below. This shows how the employees getting pension (deferred wage) are being distinguished amongst themselves both vertically and horizontally.
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1.13. Pension Comparative Tables showing the quantum of Pension being received today, by officers retired of similar cadre between various periods as mentioned below:
Pension Comparative Table
1. The figures correspond to the maximum of the basic pay in the scale. The pension is 50% thereof.
A Few Comparisons:
1. Scale VII officers retired by 1992 are getting less pay of Rs. 7000 much lesser than the Scale I retired Officer of 2007 (25700) similarly when compared parallel Scale VII officer of 1992 (7000) is getting much less than Scale VII retired officer of 2007(Rs. 52,000)
2. Scale VI officer retired by 1992 is getting a pay of Rs. 6550 is getting much less than a Scale I officer of 2007 (Rs. 25700) and parallel Scale VI retired officer of 2007 (Rs. 36,200)
3. Scale V Officers of 1992 are getting pay of Rs. 5950 less than a Scale I retired officers of 2007 (Rs. 25700) and parallel to Scale V officers of 2007(40400).
4. Even if Scale I officers pay is compared to the pay of a Clerk he is getting less salary and when his salary is compared to the pay of the same scale in 2007.
5. The maximum of the pay in the different scales are given 50% of which is the basic pension.
6. When comparison is made in any manner there is huge disparity between the pensioners both horizontal and vertical.
7. In another comparison For example, a special assistant (senior clerical cadre) of the Bank, who retired on 30th April 1986, is getting a basic pension of Rs.1431/ only, whereas an employee who retires now, in the same cadre receives a basic pension of Rs.12000/-.
8. Similarly, the basic pension of a Chairman of a Bank, retired in 1986 is Rs.3500/, whereas the basic pension of a junior officer who retires now is Rs.12800/- and that of a peon is Rs.7025/-.
9. Moreover, the basic pension of a middle level officer who retired in Oct 1987 is Rs.1713/-. Whereas an Asst. General Manager of a bank draws a basic pension of Rs.2322/- since his retirement in Sept 1986. Today an Asst Gen Manager, on retirement now, gets a basic pension of Rs.17600/-. Whereas an Asst. General Manager, retired between 1982 and 1985, ex-gratia basic pension of Rs.300/- only.
10. The aforesaid examples show great and alarming disparities being created to the same class of employees who have retired at different point of time.
To remove this disparity being violative of Articles of 14 and 16 and 21,THIS APPEAL IS MADE FOR DOING THE JUSTICE.
Question(s) of law:
1.1 Whether the disparities as created by BANK OF BARODA in the pensioners are permissible?
1.2 Whether when the retired employees form one homogeneous class mini classification amongst them is permissible in law and as such the action of the BANK OF BARODA denying revision of pension with the revision of the pay scales is not a gross discrimination and violation of the Constitution of India?
1.3 Whether there can be any discrimination amongst the pensioners on the basis of date of retirement in the matter of grant of pensions? Whether an Officer lower in rank can be allowed to get much more pension than the officer of higher scale?
1.4 Whether retired employees who have retired are not entitled to revision of pension as and when pay scales are revised?
Grounds For Consideration
I. For that the action of the BANK OF BARODA is wholly illegal, arbitrary and amounts to hostile discrimination amongst the pensioners in the matter of payment of pension on the basis of dates of their retirement and the same deserves to be declared violative of Articles 14, 16 and 21 of the Constitution of India.
II. For that the Retired Officers are not given the benefit of revision of pension equivalent to the revision of pay scales from different dates (as being done in the case of Government and other Pensioners) on the ground that they have retired on a date earlier to the date of substitution of pay scales from time to time though they were members of the Pension Scheme on such dates of revision and as such all pensioners were entitled to be treated alike.
III. For that as per the definition of the term “pensioner” as given in clause (u) red with the definition of the term “employees” as given in clause (n) of the Rules 2 of the Pension Regulations. The petitioners are also employees and are entitled to the benefit of substitution of higher pay scales and they cannot be discriminated merely on the ground that they have retired on a particular date. Their relations have not been snapped with BANK OF BARODA and they still continue to be employees of BANK OF BARODA only with a changed status as such all the employees whether in service or retired are entitled to equal treatment so far as the payment of pension is concerned.
For that the officers of the BANK OF BARODA form one class in themselves, therefore, whenever there is a revision of pay scales they cannot be excluded from the benefit of such wage revisions and their pensions, which are deferred wages, have also to be revised accordingly. Failure to do so or excluding the retired officers amounts to gross discrimination between the employees and as such the action is in breach of the fundamental rights of the retired officers as guaranteed under Articles 14, 16 and 21 of the Constitution of India.
IV For that Hon’ble Apex Court has also ruled that a pensioner does not snap his relation with the employer unlike the PF retiree. Therefore, it is the responsibility of the BANK OF BARODA to treat the Pensioners equally with the employees in service in the matter of pay fixation of 50% of which is the pension payable to them.
V .For that the pay scales have been substituted respectively from 01.07.1993, 01.08.1997, 01.11.2002, and 01.11.2007 scrapping the pay scales as existed on the dates prior to those dates and as such the payment of pension on the basis of non existent pay scale is illegal and arbitrary. For the purpose of calculation of pension the substituted pay scales will come into force periodically in future also and the pension has to be calculated on that basis and after each pay revision and should become payable from the date of such substitution.
VI For that the “pay” has been defined in the Pension Regulations vide clause(s) of the Regulation 2 of the Pension Regulations, 1995 and the same exists even today. The “pay” as it exists on the date of payment of pension, therefore, can only be taken into consideration. But the BANK OF BARODA by making payment of pension on the basis of non existent pay scales are acting arbitrarily and discriminately in breach of Articles 14, 16 and 21 of the Constitution of India.
VII. For that the rate of pension has also been fixed as 50% of the basic pay. Since the pay scales have been substituted the retired employees are entitled to 50% of the pay as is applicable to them at the stage where they were on the date of retirement in the substituted pay scales on and from the date of coming into force of the revised pay scales but the BANK OF BARODA has illegally and arbitrary denied the same. The act of the BANK OF BARODA is illegal, arbitrary and unconstitutional and hence violative of Articles, 14 16 and 21 of the Constitution of India.
VIII. For that it is settled law that a scheme of pension making liberal provision for those retiring after a specified date is discriminatory vis-à-vis those retiring earlier than that date. Hon’ble Apex Court has invoked Articles 14, 38(1) 39(e) and (d), 41 and 43(b) of the Constitution of India and even the word ‘socialist’ and the Preamble to the Constitution to reach this result. The principal aim of a socialist state is to eliminate inequality in income, status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people, and especially, to provide security from cradle to grave. Thus, amongst others on the economic side, envisages economic equality and equitable distribution of income. In the old age, socialism aims at providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical prowess.
IX. For that Hon’ble Apex Court has appreciated the need of revision of pensions and has held that “in the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates adjustment of the pension amount”. It is submitted that on the same considerations the pay scales of in service employees are revised from time to time, therefore, the retired employees are also entitled to be treated alike and when the pay scales are revised their deferred wages, the pensions, should also be revised commensurate with the revised pay scales.
X. For that the BANK OF BARODA t can take notice of the inflationary pressure and the erosion in the value of the rupees and direct escalation in the rate of pension particularly when such escalation had been admitted by similarly circumstances employers. Hon’ble Apex Court did not accept the argument of lack of funds.
XI For that Article 41 of the Constitution of India enjoins the States to ensure a reasonable decent standard of life, medical aid, freedom from want, freedom from fear and enjoyable leisure, relieving the boredom and the humility of dependence in the old age.
XII. For that Hon’ble Court and Hon’ble Apex Court has time and again been ruling that in the case of pension of retirees the obligation of the employer continues till the death of an employee and any revised scheme in respect of post retirement benefits, if implemented, with cut off date, the same has to be applied to all the pensioners as they form one homogenous class. The BANK OF BARODA is acting in breach of the settled principles of law and constitutional provisions by denying the benefit of revision of pensions as per the revised pay scales and as such the above mistake is required to be rectified
XIII. For that the principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment, promotion, retirement, payment of pension and gratuity. This is the law settled by Hon’ble Courts and reiterated time and time again. This settled principle is binding on the BANK OF BARODA and they cannot act contrary to this. The impugned action of the BANK OF BARODA is thus in breach of the settled law and fundamental rights of the Pensioners and is thus violative of Article 14, 16 and 21 of the Constitution of India. (State of Kerala V. N M Thomas AIR 1976 SC 490(500) = 1976 2 SCC 310), State of Orissa V H N Swamy, AIR 1977 SC 1237 = (1977(2 SCC 508.)
XIV. For that Article 16(1) and 16(2) of the Constitution of India are intended to give effect to Articles 14 and 15 of the Constitution and these Articles form part of the same constitutional code of guarantees and supplement each other. Article 16(1) should, therefore, be construed in a broad and general way, and not in pedantic and technical way. In the majority decision in General Manager, South Railway v. Rangachari (AIR 1962 SC 36) referred in Post Graduate Institute of Medical Education & Research V. Faculty Association, AIR 1998 SC 1767 (1775) = (1998) 4 SCC 1) it has been held that when so construed, matters relating to employment cannot mean merely matters prior to the act of appointment nor can ‘appointment to any office’ mean merely the initial appointment but must include all matters relating to employment, whether prior to or subsequent to the employment, that are either incidental to such employment or form part of its term and conditions.
XV.For that the Hon’ble Apex Court in the case of D.S.Nakara v/s Union of India (1983) 1 SCC 305, has held that the principle of “One Rank One Pay” is to be followed and there cannot be any hostile discrimination in payment of the pension to the retired employees who are similarly situated and governed by the same set of pension rules and further by introducing a grossly arbitrary definition to the term “Pay” at the time of each wage revision and thus attempt being made to arbitrarily divide a homogeneous class at the time of each wage revision resulting into the gross anomaly cannot be considered to be based on any rational principle and besides the same being discriminatory and violetive of Article 14 runs counter to the natural justice which owns its origin to ethical and moral values of the society.
XVI For that Hon’ble Courts has laid down the rule that in the absence of any acceptable explanation or justification the classification of pensioners who were working in the Government/autonomous bodies into two classes merely on the basis of the date of retirement is unconstitutional and bears no nexus to the object to be achieved (1987) 4 SCC 31 = 1987 94) SLR 728 R.L. Marwaha V. Union of India.) The BANK OF BARODA is an autonomous body and is state within the meaning of Article 12 of the Constitution of India. It has to act in a judicious manner and treat all the employees whether in service or retired alike and any act in bifurcating the Pensioners on the basis of date of retirement is wholly unconstitutional .
XVII. For that in a recent judgment reported in [(2008) 9 SCC 125] entitled Union of India and another vs. S.P.S Vains and others, Hon’ble Supreme Court has deprecated the situation wherein the officers who retired prior to 1.1.1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the Fundamental Rules, the other set of Major Generals who retired after 01.01.1996 will get a higher amount of pensions since they would be entitled to the benefit of the revision of pay scales after 01.01.1996 as offensive of Articles 14 of the Constitution of India. Hon’ble Supreme Court has therefore given direction to the effect that the pay of all pensioners in the rank of Major General and its equivalent rank in two other Wings of the Defense Services be notionally fixed at the rate given to similar officers of the same rank after the revision of pay scales with effect from 01.01.1996, and thereafter, to compute their pensionary benefits on such basis with prospective effect from the date of filing of the writ petition and to pay them the difference within three months from that date with interest at 10% per annum. The comparative chart as given hereinabove would prove that on account of non revision of pensioners with every revision of pay scales the earlier higher ranking retirees are getting lesser pensions than the lower ranking retires of subsequent dates. This situation is not sustainable in the eye of law and the BANK OF BARODA AND OTHER PSU BANKS SHOULD RECTIFY THE MISTAKE BY REVISING THE PENSION S by fixing the pay of the pensioners on the formula of fixation of wages and then pay 50% of the same as pension, which is the rate of pension provided in the Pension Regulations.
XVIII. For that the Pensioners are members of the Pension Scheme right from the date of Notification of the Pension Regulations, they are therefore, entitled to the amendment to the Pension Regulations enhancing the pension or providing a new formula for computation of pension. It has been held in Case of V Kasturi v. Managing Director, State Bank of India and others, (1998) 8 SCC 30 that where the amendment to the Pension Regulations enhance the pension even the earlier retirees who at the time of retirement were eligible for pension and if he survives till the date of subsequent amendment of the pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula of computation of pension”. Thus the Pensioners being eligible for pension on the date of revision of pensions are entitled to the revised pension and they cannot be discriminated with other pensioners.
XIX. For that the act of the BANK OF BARODA is in violation of the fundamental rights of the Pensioners under Article 21 of the Constitution of India. By the meager pension given to the Pensioners their life is devoid of human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, health care, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings.
XX. For that it was the responsibility of the BANK OF BARODA to have invoked the Clause No. 56 of Pension Regulations of 1955 for the purpose of giving updation/revision to the pension consequent upon each wage revision by having regard to the corresponding provisions of CCS Rules 1977 or CCS (Commutation of Pension of Pension) Rules, 1981 applicable for the Central Government employees but the BANK OF BARODA have been completely oblivious to the emerging illogical outcomes, with the result that after each wage revision the gulf of difference of pension receivable by the senior retiree officers governed by the same set of Pension Regulations is getting widened and a situation has come where the officer in Top Management Grade/Scale VII retired and become eligible for pension on 1-1-1986 is getting much lesser pension than an officer in a Junior Management Grade/Scale I having pay scale applicable as on 1-11-2007. Such a hostile discrimination besides having the financial implication is also having the issue relating to the life with dignity and hence is violative of Article 14 as well as 21 of the Constitution of India.
XXI For that the right of life includes right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, health care, clothing, and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving along and mixing and mingling with fellow human beings of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter include the right to the basic necessities of the life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.
XXII For that the dignity of the senior Pensioners is gradually but surely taken off from them as they are not able to live even the life, which the employees subordinate to them but who retired after them, have more means to live with comfort while the petitioners are devoid of even those means and their dignity is at peril. Their inability to meet their daily needs and standard of life somewhat equal to what they had been availing has brought indignity amongst their equals who had retired at a later date.
XXIII. For that the right to life does not mean mere animal existence but some other finer facets or life, which includes life with human dignity, due health care leisure and pleasure. In Consumer Education and Research Centre v. Union of India (AIR 1995 SC 922) Hon’ble Apex Court has clarified “the right to life with human dignity” as “The Right to life with human dignity encompasses within its fold, some of the finer facets of human civilization which makes life worth living. The expanded connotation of life would mean the tradition and cultural heritage of the persons concerns. In the case of the petitioners the right to live with dignity has been snatched away by the respondent corporation.
XXIV. For that as per the Pension Regulations it is the BANK OF BARODA which has to meet with its liabilities arising out of Pension and has to provide such funds which are necessary for the purpose. The Pension is Management Expenses like the wages of the in service employees and the same has to be met with out of its incomes.
XXV. For that the Central Government has no jurisdiction or authority to interfere in the day to day functioning of the BANK OF BARODA Corporation. [as decided by the apex court recently ( Case of Pension updation of LIC of India v/s its Pensioners)]. There is no provision in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 under which the BANK OF BARODA has been constituted and in exercise of powers vested by which act the Pension Regulations have been framed that even in its day to day functioning of THE BANK OF BARODA would be bound by the directions issued by the Central Government. It is settled law that even if entire shareholding of a Company or Public undertaking is held by the president of India or his nominee, in its day to day functioning it is free to take its own decisions because in law it is a separate juristic entity. Even where a statute confers such a jurisdiction on the Central Government the same must be held to be confined only to issue of directions on the question of policy. Such policy decision, however, must be in relation to the activities of the Bank under the Act and not dehorns the same. It cannot interfere in the day to day functions of the Board of the Bank. Even if the Government even intends to do so, they have neither legal nor moral right to do so as they themselves are paying pension to their retirees with provision of updation of pension with each revision of pay.
XXV. For that the BANK OF BARODA is governed by a Board constituted by the members appointed by the Central Government and its decisions in the day to day functioning and management should be binding on the Central Government as well as no further interference should be permitted to be made by the Central Government or the Indian Banks’ Association.
XXVI. For that the agreements as entered into between the Indian Banks’ Association and the Associations of employees/officers have no role to play in the instant case for the reason that neither the Pensioners association/s have ( no locus standi to negotiate on behalf retirees, who ceased to be their members on retirement) /been party to such negotiations, nor the matter of pension has been discussed with them nor they have ever been consulted before or after and decision taken thereon and also for the reason that the demand of the petitioners is not beyond what they have decided with respect to the pay scales and other benefits. The BANK PENSIONERS have been making their claims on the basis of the pay scales as revised from time to time and at the rate of pension as per the Pension Regulations as approved by the Govt. from time to time.
XXVII. For that the PENSIONERS are not challenging the cut off date as fixed in the matter of revision of pay scales of the officers of the BANK OF BARODA but are demanding revision of their pensions as per the pay scales as have become effective on the date the pension is paid to them month after month.
XXVIII. For that admittedly the Pension Regulations are based on C.C.S Pension Rules and when the Central Government has been revising pensions simultaneously and automatically with revisions of pay scales for its own employees and for employees of its Undertakings and Instrumentalities then there is no justification whatsoever in denying the same treatment to the retired employees of the BANK OF BARODA, and the Public Sector Banking Industry as a whole, which is also an instrumentality of the Central Government. While introducing the Pension schemes in Banks, it was specifically stated that they were to be broadly on pattern of pension schemes available to GOI & RBI Employees. Bank unions entered into settlement in the year 1993 when it was decided to adopt Central Government Pension Regulation as applicable to their employees. However while finalizing pension regulations for banks very important clause of periodical up gradation of pension was omitted. In view of this, pension up gradation exercise has not been allowed to be carried out by IBA in subsequent three bipartite settlements of 1995, 1999, & 2005.
Lastly the main reason attributed by the bank and the IBA for above denial is
Huge NPA IN PSU banks which is adversely affecting the profits of the banks .However they have forgotten the following are the causes of the above situation created by the banks
ACCORDING TO DR CHAKRABORTY,PAST DEPUTY GOVERNOR OF RBI .
1.BANKS BOARDS ARE SUFFERING FROM HUGE GOVERNORNANCE DEFICIT.
2.BANKS NEEDS RULE BASED REGULATIONS AS AGAINST THE LARGELY DISCRETIONARY POLICIES BEING FOLLOWED.
3. TIME HAS COME FOR FIXING THE ACCOUNTABILITY IN TRANSFERANT MANNERTO BANKS SENIOR MANAGEMENT AND BOARD TO AVOID FURTHER DETERIRATION IN NPA AND RECOVERY OF NPA”
4.BANKS BOARDS ARE NOT ALWAYS COMPETANT AND THEY HAVE NOT ALWAYS UNDERSTOOD THE BUSINESS THEY ARE IN AS POINTED OUT BY MR MEGHNAND DESAI,PROFESSOR EMIRITES IN LONDON SCHOOL OF ECONOMICS.
5.EVEN SHRI P .CHIDAMBERAM PREVIOUS FINANCE MINISTER HAS SAID” AT THE PANEL DISCUSSION AT AN EVENT TO COMMEMORATE NSC 20TH ANNIVERSARY IN DECEMBER,2013 AS UNDER;-
PSU BANKS THEMSELVES RESPONSIBLE FOR HUGE NPAS AND NOT GOVT. WHILE HE ACKNOWLEDGED THAT THE GOVT HAS ANOMINEE DIRECTOR ON EVERY PSU BANK BUT POINTED OUT THE ROLE OF INDEPENDENT DIRECTOR,FULL TIME DIRECTOR,CHAIRMAN AND MANAGING DIRECTOR OF THE PSU BANKS AND THE SENIOR BANK MANAGEMENT RESPONSIBLE FOR THE HUGE NPA HE FURTHER SAID THAT BANKS BOARDS AND NOT AND THE GOVT SHOULD BE HELD RESPONSIBLE FOR THE PRESENT NPA SITUATION.
HE ALSO FURTHER SAID THAT “IF BANKS BOARD CANNOT PERFORM THEIR DUTY ,BLAME SHOULD STOP WITH THE BANKS BOARD AND NOT WITH THE GOVT.NPAS ARE HIGH BECAUSE RECOVERY MEASURES ARE SOFT .BANKERS ARE BEINGTARDY AND TO SOME EXTENT SOFT ON RECOVERY.WE ARE FAILING COMPANIES AND PROSPEROUS PROMOTORS.” .
6.EVEN SHRI P.J.NAYAK COMMITTEE APPOINTED BY RBI TO STUDY THE FUNCTIONING OF PSU BANK HAS MADE SEVERAL SUGGESTIONS FOR IMPROVING THE WORKING OF PSU BANKS. THE COMMITTEE OBSERVED LOTS OF DEFICIENCY IN THE GOVERNANCE,COMPETANCE OF INDEPENDENT DIRECTORS,BOARD FUNCTIONING ETC HE HAS ALSO SUGGESTED REDUCING GOVT STAKE IN PSU BANKS LESS THAN 49%, CREATING HOLDING COIN WHICH ENTIRE GOVT STAKE SHOULD BE HELD ,TERMS OF INDEPENDENT DIRECTORS AND MARKET RELATED SALARY TO THE CMDAND AUTONOMY ETC.
IN VIEW OF THE ABOVE YOU WILL OBSERVE AND AGREE THAT PENSIONERS ARE NO WAY RESPOSIBAL FOR THE ABOVE MESS AND HENCE THEIR DUE RIGHTS CANNOT BE DENIED.
I am also one of those pensioner who is very badly affected by meager pension .I am drawing monthly pension of RS 23300/ inclusive of dearness allowance though retired as general manager on 1-4-1997 as against RS 52000/- PER MONTH WHICH THE GENERAL MANAGERS WHO RETIRED YESTERDAY ARE DRAWING. Further I am drawing the monthly pension less than junior officer in scale I who retired recently. Hence to remove this gross discrimination and to do justice to pensioners like me this appeal , and request you to give this matter sympathetic consideration and remove the discrimination
And resolve the issue in favour of pensioners without any delay.
PENSIONER,SENIOR CITIZEN(AGE 76YEARS)
AND FORMER GENERAL MANAGER,
BANK OF BARODA,
C.C TO SHRI ARUN JAITLEY,
HON’BLE FINANCE MINISTER,
MINISTRY OF FINANCE,
GOVERNMENT OF INDIA,
NORTH BLOCK,RAISINA HILLS,
FOR INFORMATION AND WITH A REQUEST TO GIVE NECESSARY INSTRUCTIONS TO DEPARTMENT OF FINANCIAL SERVICES .for resolving the issue in favour of pensioners with out any delay.
C.C TO CHIEF EXECUTIVE OFFICER,
INDIAN BANKS ASSOCIATION,
WORLD TRADE CENTRE,6TH FLOOR,
CENTRAL BUILDING ,WORLD TRADE CENTRE COMPLEX,
FOR INFORMATION AND NECESSARY ACTION WITHOUT ANY DELAY.
c.c.to DR RAGHU RAM RAJAN,
GOVERNOR RBI.CENTRAL OFFICE,
SHAHID BHAGAT SINGH,MARG,
FOR INFORMATION AND WITH A REQUEST TORECOMMEND TO GOVT TO RESOLVE THE ABOVE DISCREMINATION.