BENSON BABY
Advocate
NSS Building, St. Germain Road, North Paravur, Kerala– 683 513 Mob:9495254308
-----------------------------------------------------------------------------------
13th February, 2019
To
S/Shri. Rajiv Kumar, Secretary (Banking),
Ministry of Finance, Government of India,
Jeevan Deep Building, Parliament Street, New Delhi-110 001
Sir,
This notice is issued to you at the behest of Shri. C N Venugopalan, Vice President, Common Cause Consortium, Kerala, N Paravur – 683 513 for putting you to notice that:-
01. Ministry of Finance caused a notification in the Gazette of India dated 06.11.2017 amending Union Bank of India (Employees’) Pension Regulations, 1995 by promulgating Union Bank of India (Employees’) Pension (Amendment) Regulations, 2017.
02. Vide clause 4 of the notification, regulation 28 on “Superannuation Pension” was amended, 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”
03. Vide clause 8 (a) of the notification, regulation 52 (1) was amended by substituting the pre-existing proviso “Except in the case of an employee to whom provisions of regulation 43 and regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires” with a new proviso viz.“Except in the case of an employee to whom provisions of regulation 34 and regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires”
04. Vide clause 3 (b) of the notification, regulation 3 was amended by inserting new sub regulations 11 to 14 in it relating to the contributions which the Bank had raised on the basis of a Settlement/Joint Note dated 27.04.2010 which were inconsistent with regulations 5 (3) and 11 and hence impermissible under section 19.1 and 19.4 of the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970/1980 (the Act).
05. Vide clause 8 (b) of the notification, a new sub regulation 3 with the proviso “Provided that pension including family pension to those who opted to join the Bank Employees’ Pension Scheme on or after 27th April, 2010 shall be payable with effect from 27th November, 2009.” relating to commencement of pension was inserted under regulation 52 {where another sub regulation with the same number 3 relating to the date of cessation of pension is pre-existing}, which was inconsistent with regulation 52 (1) and hence impermissible under section 19.1 and 19.4 of the Act.
06. In terms of clause 4 of the notification, superannuation pension became payable to employees who ceased to be in service of the bank on account of Voluntary Retirement from the date following the date of their retirement, by making them eligible to join Pension Fund with retrospective effect from 29.09.1995 and to the consequential benefit of superannuation pension from the date following the date of retirement.
07. In terms of clause 8 (a) of the notification, pension became payable from the date following the date of their retirement to employees to whom provisions of regulations 34 and regulation 46 are inapplicable.
08. My client requested you by marking to you a copy of the letter No.203:18 dated 24.12.2018 addressed to Shri. T Subbarami Reddy, Chairman, Committee on Subordinate Legislation to grant the benefits notified under clause 4 and 8 (a) of the notification. But in gross dereliction of duty, your office forwarded the letter to Union Bank of India instructing it to give a reply to the letter, making them reply vide its letter No.HR:ERD:0831 dated 18th January, 2019, though my client did not mark a copy of the said letter to it.
09. The Bank has informed my client that “the amendments to the Pension Regulations were as per the directives issued by the Indian Banks’ Association (IBA) to all PSBs based on industry level Bipartite Settlements” when the Pension Regulations, 1995 are statutory and the industry level settlement cannot meddle with it.
10. The Bank was informing my client that the date of commencement of pension is 27.11.2009 and not the date of retirement as per the Pension Option Scheme, ignoring that in terms of regulation 52 (1), pension was payable from the date following the date of retirement and clause 4 and clause 8 (a) of the notification dated 06.11.2017 were in supersession of any Pension Option Scheme made prior to that and reiterated that pension shall become payable from the date following the date of retirement.
11. It is very much clear that though the Bank has autonomy of operation with an independent Board of Directors and also a separate Pension Regulations, which is statutory and binding, you are forcing the Bank to circumvent the statutory regulations and preventing it from carrying out the statutory obligations arising out of the Pension Regulations when payment of the vested benefits is out of the Pension Fund and involves no cost either to the Bank or to the Government.
12. The notification is making it explicit that there were no provisions for the Bank to raise the contributions to the Pension Fund on the basis of the Joint Note which are sought to be authenticated through the new sub regulations 11 to 14 under regulation 3 vide clause 3 (b) of the notification and to deny pension from the date following the date of retirement to 27.11.2009 in defiance of regulation 52 (1) for which purpose the new sub regulation 3 was brought under regulation 52 till the date of the notification and these provisions, being inconsistent with the Pension Scheme cannot evolve as amendments to regulations forever by operation of sections 19.1 and 19.4 of the Act.
13. Clause 3 (b) and 8 (b) of the notification were nefarious to the extent they are aiming at looting the terminal benefit pension of the senior citizens retired from the Bank, out of their own deferred wages held in Pension Fund.
14. You are aware through the ruling dated 13.02.2018 of the Hon’ble Supreme Court in Civil Appeal No.5525 of 2012 viz. Bank of Baroda & Anr. Vs. G Palani & Ors. that the Joint Note dated 27.04.2010, which is akin to the Joint Note dated 14.12.1999 cannot supplant any of the provisions of the Pension Regulations with retrospective effect and the Regulations that are in force in 2003 shall continue to apply and hence the act on your part is also in contempt of the law laid down by the Hon’ble Supreme Court.
In the circumstances enumerated above, you are hereby called upon to look into the matters expeditiously and to direct the Bank to be compliant with the Pension Regulations in force by releasing the benefits notified under clause 4 in terms of amended regulation 28 viz. superannuation pension from the date following the date of retirement to employees who retired through Voluntary Retirement and pension from the date following the date of retirement notified vide clause 8 (a) of the notification and to refund the unlawful contributions raised to Pension Fund sought to be authenticated wrongfully through the sub regulations 11 to 14 under regulation 3 and to pay the pension denied from the date of retirement to 27.11.2009 sought to be authenticated vide clause 8 (b) of the notification, which being inconsistent with the Pension Scheme of the Bank are impermissible under sections 19.1 and 19.4 of the Act, failing which, you may take notice that my client will be constrained to initiate legal remedies at your cost, risk and responsibility.
ADVOCATE
Advocate
NSS Building, St. Germain Road, North Paravur, Kerala– 683 513 Mob:9495254308
-----------------------------------------------------------------------------------
13th February, 2019
To
S/Shri. Rajiv Kumar, Secretary (Banking),
Ministry of Finance, Government of India,
Jeevan Deep Building, Parliament Street, New Delhi-110 001
Sir,
This notice is issued to you at the behest of Shri. C N Venugopalan, Vice President, Common Cause Consortium, Kerala, N Paravur – 683 513 for putting you to notice that:-
01. Ministry of Finance caused a notification in the Gazette of India dated 06.11.2017 amending Union Bank of India (Employees’) Pension Regulations, 1995 by promulgating Union Bank of India (Employees’) Pension (Amendment) Regulations, 2017.
02. Vide clause 4 of the notification, regulation 28 on “Superannuation Pension” was amended, 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”
03. Vide clause 8 (a) of the notification, regulation 52 (1) was amended by substituting the pre-existing proviso “Except in the case of an employee to whom provisions of regulation 43 and regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires” with a new proviso viz.“Except in the case of an employee to whom provisions of regulation 34 and regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires”
04. Vide clause 3 (b) of the notification, regulation 3 was amended by inserting new sub regulations 11 to 14 in it relating to the contributions which the Bank had raised on the basis of a Settlement/Joint Note dated 27.04.2010 which were inconsistent with regulations 5 (3) and 11 and hence impermissible under section 19.1 and 19.4 of the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970/1980 (the Act).
05. Vide clause 8 (b) of the notification, a new sub regulation 3 with the proviso “Provided that pension including family pension to those who opted to join the Bank Employees’ Pension Scheme on or after 27th April, 2010 shall be payable with effect from 27th November, 2009.” relating to commencement of pension was inserted under regulation 52 {where another sub regulation with the same number 3 relating to the date of cessation of pension is pre-existing}, which was inconsistent with regulation 52 (1) and hence impermissible under section 19.1 and 19.4 of the Act.
06. In terms of clause 4 of the notification, superannuation pension became payable to employees who ceased to be in service of the bank on account of Voluntary Retirement from the date following the date of their retirement, by making them eligible to join Pension Fund with retrospective effect from 29.09.1995 and to the consequential benefit of superannuation pension from the date following the date of retirement.
07. In terms of clause 8 (a) of the notification, pension became payable from the date following the date of their retirement to employees to whom provisions of regulations 34 and regulation 46 are inapplicable.
08. My client requested you by marking to you a copy of the letter No.203:18 dated 24.12.2018 addressed to Shri. T Subbarami Reddy, Chairman, Committee on Subordinate Legislation to grant the benefits notified under clause 4 and 8 (a) of the notification. But in gross dereliction of duty, your office forwarded the letter to Union Bank of India instructing it to give a reply to the letter, making them reply vide its letter No.HR:ERD:0831 dated 18th January, 2019, though my client did not mark a copy of the said letter to it.
09. The Bank has informed my client that “the amendments to the Pension Regulations were as per the directives issued by the Indian Banks’ Association (IBA) to all PSBs based on industry level Bipartite Settlements” when the Pension Regulations, 1995 are statutory and the industry level settlement cannot meddle with it.
10. The Bank was informing my client that the date of commencement of pension is 27.11.2009 and not the date of retirement as per the Pension Option Scheme, ignoring that in terms of regulation 52 (1), pension was payable from the date following the date of retirement and clause 4 and clause 8 (a) of the notification dated 06.11.2017 were in supersession of any Pension Option Scheme made prior to that and reiterated that pension shall become payable from the date following the date of retirement.
11. It is very much clear that though the Bank has autonomy of operation with an independent Board of Directors and also a separate Pension Regulations, which is statutory and binding, you are forcing the Bank to circumvent the statutory regulations and preventing it from carrying out the statutory obligations arising out of the Pension Regulations when payment of the vested benefits is out of the Pension Fund and involves no cost either to the Bank or to the Government.
12. The notification is making it explicit that there were no provisions for the Bank to raise the contributions to the Pension Fund on the basis of the Joint Note which are sought to be authenticated through the new sub regulations 11 to 14 under regulation 3 vide clause 3 (b) of the notification and to deny pension from the date following the date of retirement to 27.11.2009 in defiance of regulation 52 (1) for which purpose the new sub regulation 3 was brought under regulation 52 till the date of the notification and these provisions, being inconsistent with the Pension Scheme cannot evolve as amendments to regulations forever by operation of sections 19.1 and 19.4 of the Act.
13. Clause 3 (b) and 8 (b) of the notification were nefarious to the extent they are aiming at looting the terminal benefit pension of the senior citizens retired from the Bank, out of their own deferred wages held in Pension Fund.
14. You are aware through the ruling dated 13.02.2018 of the Hon’ble Supreme Court in Civil Appeal No.5525 of 2012 viz. Bank of Baroda & Anr. Vs. G Palani & Ors. that the Joint Note dated 27.04.2010, which is akin to the Joint Note dated 14.12.1999 cannot supplant any of the provisions of the Pension Regulations with retrospective effect and the Regulations that are in force in 2003 shall continue to apply and hence the act on your part is also in contempt of the law laid down by the Hon’ble Supreme Court.
In the circumstances enumerated above, you are hereby called upon to look into the matters expeditiously and to direct the Bank to be compliant with the Pension Regulations in force by releasing the benefits notified under clause 4 in terms of amended regulation 28 viz. superannuation pension from the date following the date of retirement to employees who retired through Voluntary Retirement and pension from the date following the date of retirement notified vide clause 8 (a) of the notification and to refund the unlawful contributions raised to Pension Fund sought to be authenticated wrongfully through the sub regulations 11 to 14 under regulation 3 and to pay the pension denied from the date of retirement to 27.11.2009 sought to be authenticated vide clause 8 (b) of the notification, which being inconsistent with the Pension Scheme of the Bank are impermissible under sections 19.1 and 19.4 of the Act, failing which, you may take notice that my client will be constrained to initiate legal remedies at your cost, risk and responsibility.
ADVOCATE
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