HOW WHOLE-TIME DIRECTORS ARE PAID PENSION, AGAINST THE REGULATIONS? - BREACH OF TRUST UNDER IPC- "ROB PETER TO PAY TO PAUL" -
MY DEAR FRIENDS,
WHEN PENSION SETTLEMENT ITSELF WAS UNDER THE I.D ACT, THE SUBSEQUENT MUNUTES OF THE SMALL COMMITTEE TOO OBVIOUSLY BECAME AN INTEGRAL PART OF THE PENSION SETTLEMENT FOR THE FOLLOWUNG FACTS:
THUS, AS PER THE FOLLOWING DOUCUMENTS, IBA& UNIONS HAVE ALREADY MADE AN IMPLIED PROMISE BY CAUSING CIRCULATION OF THE SAID MINUTES AMONG ALL THE PARTIES INVOLVED. "A DOCTRINE OF TASSIT CONTRAT OF TRUST BACKED UP BY A PROMISE OF PENSION UPDATION IN RBI LINES".
THUS, NOW THEY CANNOT PLEAD FOR ANY ESTOPEL OF PROMISE BELATEDLY AGAINST THE RULE OF THE LAND.
THE FOLLOWING DOCUMENTS SPEAK BY THEMSELVES...
IBA No.PD/CIR/76/G(ii)/1905 dtd. 31 03 1994 Page#19
Annexure- III
Minutes of the meeting of theSmall committee on Pension held on 26th March 1994.
https://drive.google.com/file/d/1jt3yKn1PWRZ4-1XZ51P43LFLzmQD6CYV/view?usp=drivesdk
HENCE THE MINUTES OF THE SMALL COMMITTEE BACKED UP BY A PROMISE MADE BY IBA WILL CERTAINLY HAVE A STATUTORY FORCE!!!
HAVING ALREADY FILED A FALSE AFFIDAVIT IN MC SINGLA'S CASE, IBA & UFBU PROVD AS A "GANG OF THIEVES & CHEATS OF THE FIRST ORDER!!!"
IN THE WAKE OF THE NOTICE ALREADY ISSUED BY THE UFBU TO THEIR CINSTITUENTS FOR THEIR PROPOSED MEENTING AT MUMBAI ON 12 01 2023 TO DISCUSS ON THE ITEMS OF AGENDA THEREIN. PENSION UPDATION IS ALSO ONE AMONG THE ISSUES.
OUR LEARNED FRIEND COM. CN VENUGOPAL HAS ADDRESSED A DETAILED COMMUNICATION TO THE UFBU CONVENOR URGING HIM IN A BID TO " CEMENT THE PAST CAUSED BREACHES IN THE PENSION REGULATIONS THOUGH BELATED'.
THE CONTENTS ARE SELF-EXPLICIT :
REGARDS & GREETINGS
దేవులపల్లి శ్రీనివాస మూర్తి
08 01 2023
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https://drive.google.com/file/d/1-UNWaY96ORgJdBh6vb-N03k6PNaWhxkT/view?usp=sharing
N VENUGOPALAN
EX-MANAGER, UNION BANK OF INDIA : N PARAVUR,KERALA -683 513
MOB :9447747994
7th January, 2023
Shri. Sanjeev K Bandlish,Convenor, United Forum of Bank Unions,C/O. State Bank of India Local Head Office, Plot No.1, Sector 17 A, Chandigarh 160 017
Respected Comrade,
It is delightful to your retired brothers that UFBU is meeting on 12th January, 2023 at Mumbai to decide on demand for 5 days banking, updating of pension, demand for change-over from NPS to OPS, adequate recruitment to banks etc.
You will be knowing that the updating of pension is an already settled issue by reason of regulations 35(1) and regulations 56 of the statutory Pension Regulations and the switch over from OPS to NPS on the basis of the Settlement/Joint Note dated 27.04.2010 is void in law as it was an act done in derogation of the Pension Regulations in force. As such fresh demands are confined to only two items viz. 5 days banking and adequate recruitment in banks.
Non-updating of pension is in breach of pension regulations 35(1) which clearly states that “Basic Pension and additional pension, wherever applicable, shall be updated as per formulae given in Appendix-1”.
The regulation initially stood as “In respect of employees who retired between the 1st day of January, 1986 but before 31st day of October, 1987, basic pension and additional pension will be updated as per the formulae given in Appendix-I”. It was subsequently amended on 25.01.2003 and other dates as “Basic Pension and additional pension, wherever applicable, shall be updated as per formulae given in Appendix-I”
The provision which initially confined updating of pension to employees retiring in the time zone 01.01.1986 to 31.10.1987 was made applicable to employees retiring any time with stress added to the updating by substituting the words “will be updated” with the words, “wherever applicable, shall be updated”. One is at a loss to know what else could be the intent of regulation 35 (1) and its amendment in 2003, if they are not for updating the pension.
The appendix -I cited in regulation 35 (1) was, in addition to the formula applicable to employees who retired between 01.01.1986 and 31.10.1987, containing other formulae viz. Formula 2 for updating basic pension in respect of workmen who have retired on or after the 1st day of November, 1992 but before the 1st day of September, 1993 and in respect of officers who have retired on or after the 1st day of July, 1993 but before the 1st of May, 1994. Formula 3 and Formula 4 for reckoning additional pension on special allowance w.e.f. 1st. November, 1994 corresponding to the special allowance actually drawn at the time of retirement in respect of workmen who have retired on or after the 1st day of November, 1992 but before the 1st day of November, 1994 and in respect of officers who have retired on or after the 1st day of July, 1993 but before the 1st.day of November, 1994 in terms of Bipartite Settlement dated 14th February, 1995 or the Officers. Service Regulations, as the case may be and, Formula 5 for reckoning dearness relief at the rates for every rise or fall of 4 points over 600 points in the quarterly average of the All-India Consumer Price Index for Industrial Workers in the series 1960=100. In short, the benefit of updating pension was one given to employees who retired prior to the commissioning of the Pension Scheme vide regulation 35 (1) and the regulation in its amended form “Basic Pension and additional pension, wherever applicable, shall be updated as per the formula given in Appendix – I” mandates that similar updating of pension shall take place irrespective of the date of retirement of employee with the revision in pay and allowances arising out of wage revisions taking place from time to time. No formula could be devised in the Appendix-I for updating of pension of employees retiring post implementation of the Pension Regulations as it was to be based on the revised Pay Scales arising out of the subsequent bipartite settlements.
Regulation 56 of the Pension Regulations, cited below, is also breached while not updating the pension in banks, Regulation 56 - Residuary provisions –
“In case of doubt, in the matter of application of these Regulations, regard may be had to the corresponding provisions of Central Civil Service Rules, 1972 or Central Civil Services (Commutation of Pension) Rules, 1981 applicable for CentralGovernment employees with such exceptions and modifications as the Bank, with the previous sanction of the Central Government, may from time to time, determine”.
IBA and Government and perhaps UFBU too are in total doubt as to whether pension is to be updated or not. AS such, the regulation 56 has to come into play invariably in this situation. The regulation makes it clear that the Pension Scheme in banks is exactly on the premise of Central Civil Pension Scheme and just in the same way Central Civil Pension gets updated with the implementation of each Pay Commission, pension in banks is to be updated along with wage revisions takes place through Bipartite Settlements. For making any of the corresponding provisions in Central Civil Service Rules, 1972 or Central Civil Services (Commutation of Pension) Rules, 1981 inapplicable to bank pensioners, the banks should determine the exceptions and modifications with the previous sanction of the Central Government and notify them as amendments to the Bank Employees Pension Regulations, 1995 in the gazette of India. Banks have not, so far, determined (and notified) any exceptions and / or modifications from the Central Civil pension Scheme so as to make them inapplicable to bank pensioners. It follows that all the corresponding provisions in the Central Civil Service Rules, 1972 or Central Civil Services (Commutation of Pension) Rules, 1981 shall applyto bank pensioners including the provisions relating to periodic updating / revision of pension. As such, the pension in banks needs to be revised synchronizing with the new scales of pay arising out of each Bipartite Wage Settlement just in the same way Central Civil Pension gets updated with the implementation of each Pay Commission.
Going back a little further, the settlement dated 29.10.1993 entered into between banks represented by IBA and employees of 58 banks represented by All India Bank Employees Association pursuant to section 2 (p) of the Industrial Disputes Act,1947, which is the bedrock of the Bank Employees Pension Regulations, 1995 mandates by its clause 6 that “Dearness relief to pensioners will be granted at such rates as may be determined from time to time in line with the dearness allowance formula in operation in Reserve Bank of India”. and by clause 12 that “Provisions will be made by a scheme, to be negotiated and settled between the parties to this Settlement by 31st December, 1993 for applicability, qualifying service, amounts of pension, payment of pension, commutation of pension, family pension, updating and other general conditions, etc. on the lines as are in force in Reserve Bank of India” and by clause 16 that “Copies of the Memorandum of Settlement will be jointly forwarded by the parties to the authorities listed in Rule 58 of the Industrial Disputes (Central) Rules, 1957 so that terms and conditions thereof are binding on the parties as provided in law”.
The settlement dated 29.10.1993 is binding on the parties to it fully and banks are to update pension synchronising with the updating of pension in Reserve Bank of India. In the wake of updating of pension in Reserve Bank of India with effect from 01.03.2019, it is imperative that pension in banks is to be updated similarly, lest it shall be breach of the settlement dated 29.10.1993.
UFBU demanding infusion of fresh provisions in the Pension Regulation for updating of pension is ludicrous as it will only aid the IBA and bank managements by creating a false notion that there is no provisions at present in the Pension Regulations in force for updating pension. It can only be suicidal to all the constituents of UFBU.
The matter of updating can be raised by way of an Industrial Dispute and enforced easily.
Switching over from Old Pension Scheme to the New Pension Scheme was a compromise made by UFBU for extending the second option for Pension to the left-out employees.
Employees who joined service after 31.03.2010 were excluded from the Pension Scheme on the basis of the settlement / Joint Note dated 27.04.2010 in derogation of regulation 3 (4) of the Pension Regulations, in terms of which, all employees who joined service after the notified date of 29.09.1995 are entitled to join Pension Scheme. As per the Pension Regulations in force, they continue to be in the original Pension Scheme. Banks later amended sub regulation (4) of regulation 3 by substituting sub regulation (4) (a) for sub regulation (4) by adding the words “and on or before the 31st day of March 2010” through notification of the Pension (Amendment Regulations 2017 to read sub regulation 4 (a) as (These regulations shall apply to employees who); “join these service of the bank on or after the notified date and on or before the 31st day of March, 2010”.
The amendment to regulation 3 aforesaid come into force only on the date the Pension Amendment Regulation, 2017 was notified in the gazette of India in the year 2017 as clause 1(2) of the notification lays down that “Save as otherwise expressly provided in these regulations, they shall come into force on the date of their publication in the Official Gazette”. So the employees who joined service after 31.03.2010 are continuing in the Old Pension Scheme till the amendment was notified through the Pension Amendment Regulations, 2017. The amendment is void in terms of section 19.1 and 19.4 of the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 as they prohibit any amendment to regulations which are inconsistent with the Pension Scheme and as such, the employees now treated as in the New Pension Scheme are still in the Pension Scheme of the banks.
The amendment to regulation 3 (4) for excluding employees who joined service after 31.03.2010 from the Pension Scheme was for (i) siphoning the contribution at the stipulated rate which the banks should make in respect of the employees to the Pension Fund into the kitty of the PFRDA and (ii) for making the owed funds of banks, own funds of the banks when the employees who joined service of banks till 31.03.2010 and their family pass away. It was a criminal offence involving breach of trust by public servant and by banker that can attract the wrath of section 405and 409 of the Indian Penal Code, It was unfortunate that UFBU also became a party to it by consenting to the wrong act through the Settlement/Joint Note dated 27.04.2010. It can also be seen that through clause 8 (a) of the Pension Amendment Regulations,2017, regulation 52 (1) of the Pension Regulations, 1995 was amended by substituting the existing proviso with a new proviso viz. “(1) Except in the case of an employee to whom the provisions of regulation 34 or regulation 46 apply, a pension other than family pension shall become payable from the date following the date on which an employee retires.” Regulation 34 relates to Payment of pension or family pension in respect of employees who retired or died between 10.10.1986 to 31.10.1993 and regulation 46 relates to provisional pension to employees against whom departmental proceedings are ongoing. These two regulations being inapplicable to employees who retired through Voluntary Retirement, the amendment vests with the right to pension from the date following the date of their retirement, which the banks have not paid. Banks also amended regulation 52 (3) by inserting in it an additional proviso viz. “Provided that pension including family pension to those who opted to join the Bank Employees’ Pension Scheme on or after the 27th April, 2010 shall be payable with effect from the 27th November, 2009” vide clause 8 (b) of the Pension Amendment Regulations, 2017. This was a preposterous amendment as the new proviso related to the date of commencement of pension to employeeho joined the Pension Scheme after 27.04.2010 and the pre-existing proviso viz. “Pension, including family pension, shall be payable for the day on which its recipient dies” related to the date of cessation of pension to all employees which cannot be combined together. This proviso was in conflict with regulation 52 (1) and also inconsistent with the Pension Scheme and hence impermissible to be carried out as amendment to the Pension Regulations vide section 19.1and 19.4 of the Act. Since the pre-existing proviso and the new proviso could not be combined together, some banks showed the new proviso as sub regulation (4) of regulation 52 while some other banks put it in regulation 52 itself without inserting it in sub regulation (3) of regulation 52 ignoring the direction in the notification that it shall be inserted in sub regulation (3) of regulation 52.
All these can never stand the test of law and banks have to pay pension from the day following the date on which the employee retired. The pertinent observations of the ruling dated 13.02.2018 of the Hon’ble Supreme Court in Civil Appeal No.5525 of 2012 viz. Bank of Baroda & Another Vs. G Palani & Ors., are as below:--
"15. First we come to the rigour of the Regulations. The Regulations have statutory force, having been framed in exercise of the powers under Section 19(2)(f) of the Act of 1970 and are binding. They could not have been supplanted by any executive fiat or order or Joint Note, which has no statutory basis. The Joint Note of the officers also had no statutory force behind it and could not have obliterated any of the provisions of Act of 1970 or the existing Regulations. Thus, Joint Notes could, not have taken away the rights that were available under the Pension Regulations of 1995 to the Officer.
29. Thus joint note/agreement could not have been in derogation of the existing statutory Regulations and regulation 2(s)(c) could not have been given retrospective effect.
30. .......... Thus, by the Joint Note that has been relied upon, no estoppel said to have been created. There is no estoppel as against the enforcement of statutory provisions. The Joint Note had no force of law and could not have been against the spirit of the statutory Regulations and the basic service conditions, as envisaged under the Regulations framed under the Act of 1970. They could not have been tinkered with in an arbitrary manner......"
IN SHORT, ANY DEMAND FOR INCORPORATING ANY NEW PROVISION IN THE PENSION REGULATIONS FOR UPDATING PENSION AND FOR RESTORATION OF OLD PENSION SCHEME CAN ONLY MAKE THE UFBU A LAUGHING STOCK BEFORE THE IBA.
THE UFBU HAS TO DISCUSS THE MATTER IN THE TRUE SPIRIT OF THE PENSION REGULATIONS UNDER CLAUSE 14 OF THE JOINT NOTE TO UNDO THE WRONG.
ATTENTION OF UFBU IS ALSO DRAWN TO THE PAYMENT OF PENSION OUT OF THE PENSION FUND -WHICH IS THE MONEY AND PROPERTY OF THE EMPLOYEES, AS PENSION TO THE WHOLE TIME - DIRECTORS OF BANKS WHEN REGULATION 5(2) OF THE PENSION REGULATIONS DETERMINE THE SOLE PURPOSE OF THE PENSION FUND AS PAYMENT OF PENSION OR FAMILY PENSION TO THE EMPLOYEE OR HIS FAMILY IN ACCORDENCE WITH THE (se) REGULATIONS AND REGULATION 2(n) DEFINES THE EMPLOYEE AS WORKMEN AND OFFICER EMPLOYEES AND DOES NOT INCLUDE THE WHOLE-TIME DIRECTORS AMONG EMPLOYEES.
IN PAYING PENSION TO THE WHOLE-TIME DIRECTORS, BANKS ARE ROBBING PETER TO PAY TO PAUL, WHICH AGAIN IS AN OFFENCE IN BREACH OF TRUST.
The IBA will have to climb down from its rigid stand if UFBU puts forth the above arguments which are unassailable. Whether you will agree or not, the fact remains that the UFBU has been ambivalent in taking up the longstanding issues of the pensioners, especially the pre-November 2002 retirees in right earnest. I urge you not to let go of a golden chance for making amends and redeem yourselves from the cloud of a insincere loyalty to its past members. UFBU being a strong and mighty confederation of the trade unions in the banking industry endowed with the responsibility of conserving and protecting the rights of the members and former members, I request you to take a serious view of the breaches of the Pension Regulations at least at this eleventh hour and do the needful for rectifying the same in a stroke as their piecemeal rectification will be difficult and inappropriate.
Better late than never.
With revolutionary regards
Yours comradely,
C N VENUGOPALAN
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