Anomaly in computation of Pension Civil Appeal No. 5525 of 2012, Filed in the Hon’ble Supreme Court of India by Bank of Baroda & Ors with other Civil Appeals.

HR & INDUSTRIAL RELATIONS

No.HR&IR/2018-19/G2/4829

April 6, 2018

Chief Executives of Member Banks which
Are parties to the 7th Bipartite Settlement

Dear Sir/Madam,

CORRIGENDUM

Anomaly in computation of Pension Civil Appeal No. 5525 of 2012, Filed in the Hon’ble Supreme Court of India by Bank of Baroda & Ors with other Civil Appeals.

Please refer to our circular No. HR&IR/2018-19/G2/4786 dated 3rd April 2018 on the captioned subject.

2. There is a typographical error in the date mentioned in para (I) of the above circular. Kindly read as under-

” On 29-10-1993, a Bi-partite Settlement was signed at Industry level between India Banks’ Association (representing member Banks) and Workmen Unions (representing Workmen) under the provisions of Industrial Dispute Act, 1947 for introduction of Pension as a second retiral benefit in lieu of “Banks contribution to Provident fund”. On similar lines a Joint Note dated 29-10-1993 between Indian Banks’ Association (representing member Banks) and Officers Association (representing Officers) was signed”.

Inconvenience caused is regretted.

Yours faithfully,

B Raj Kumar

Deputy Chief Executive

View Circular

Source: http://www.iba.org.in/

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Anomaly in computation of Pension Civil Appeal No. 5525 of 2012, Filed in the Hon`ble Supreme Court of India by Bank of Baroda & Ors with other Civil Appeals

HR & INDUSTRIAL RELATIONS

No.HR&IR/2018-19/G2/4786

April 3, 2018

Chief Executives of Member Banks which
are parties to the 7th Bipartite Settlement

Dear Sir,

Anomaly in computation of Pension Civil Appeal No. 5525 of 2012, Filed in the Hon’ble Supreme Court of India by Bank of Baroda & Ors with other Civil Appeals.

On 9-10-1993, a Bi-partite Settlement was signed at Industry level between Indian Banks’ Association (representing member Banks) and Workmen Unions (representing Workmen) under the provisions of Industrial Dispute Act, 1947 for introduction of Pension as a second retiral benefit in lieu of “Banks contribution to Provident fund.” On similar lines a Joint Note dated 29-10-1993 between Indian Banks’ Association (representing member Banks) and Officers Associations (representing Officers) was signed.

2. The respective member Banks in exercise of their power under Section 19 of Banking Companies (Acquisition & transfer of undertakings) Act, 1970/1980 pursuant to above referred Bi-partite Settlement/Joint Note, framed and notified in the Gazette of India “Bank Employees Pension Regulations, 1995.”

3. Another Joint Note/Bi-partite Settlement was signed between respective parties as mentioned herein above on 14-12-1999 and 27-3-2000 respectively relating to Wage revision. As per the provisions of said Joint Note / Bi-partite Settlement, 1684 points of Consumer Price Index (CPI) were merged with existing basic pay of Officers/employees and revised basic pay was worked out accordingly. However, as per agreed terms & conditions, pay for the purpose of pension was worked out after merging 1616 points of CPI as against 1684 points. These provisions were made effective w.e.f. 1-4-1998. As such, pay for the purpose of pension was less than the actual Pay the Employee/Officer concerned was getting on or after 1-4-1998. This anomaly was removed vide Joint Note/Bi-partite Settlement signed on 2-6-2005. However, monetary benefits were given w.e.f. 1-5-2005.

4. Due to this anomaly, the employees/Officers who retired after 1-4-1998, including those who retired under Special Voluntary Retirement Scheme, 2000 filed various Writ Petitions before different Hon’ble High Courts, praying that they be held entitled to Payment of Pension on the basis of actual average pay drawn by them during last 10 months as per the provisions of Bank Employees Pensions Regulations, 1995.

5. When the matter came up before Hon’ble High Court of Karnataka and Madras, the Hon’ble Courts decided the matter against Banks and ultimately concerned Banks approached Hon’ble Supreme Court by filing Civil Appeals viz., CA No 5525/2012, 6254/2012, 5611/2012, 3026-3253/2013, 3257-3262/2013, 11205-11340/2014, 11342-11435/2014, 9533-9646/2014, 8557/2014, 4711-4800/2014 and 1880/2018, 1881-1888/2018, 1890/2018, 1892-1912/2018, 1918/2018, 1919-2087 and 2088-2092/2018.

6. The Hon’ble Supreme Court vide its order dated 13/2/2018 (copy enclosed) have dismissed these appeals filed by the Banks and inter-alia has held that:-

“17…the provisions contained in Regulation 35 also make an incumbent entitled for opting the pension on the basis of average emoluments. The average emoluments have to be calculated on the basis of the preceding ten months. Adding Explanation (c) to Regulation 2(s), as done, could have created no fictional basis in view of clear and unambiguous provisions in other provisions of the Regulations. Besides, the definition of the average emoluments in Regulation 2(d) itself makes it clear that it is average pay drawn “during the last ten months” of his service by an employee. It cannot mean pay drawn by the employee even before several years. Mentionably there is no amendment made in the aforesaid provision of Regulation 2(d) and the expression during the preceding last ten months before date of retirement is clearly culled out in Regulation 38(1) and 38(2). Thus, in our considered opinion, the view taken by the then Chief Justice Vikramajit Sen as he then was, at Karnataka High Court and by the High Court of Madras are appropriate and the view taken by the Delhi High Court cannot be said to be sustainable for the various other reasons too mentioned hereinafter.

29. Thus, in our opinion, the Regulations which were in force till 2003, would apply with full force and as a matter of fact, the amendments made in it by addition of Explanation (c) in Regulation 2(s) did not have the effect of amending the Regulations relating to pension, as contained in Regulation 38 read with Regulations 2(d) and 35 of the Regulations of 1995. Even otherwise, if it had the effect of amending the pay and perks ‘average emoluments’, as specified in Regulation 2(d), it could not have operated retrospectively and taken away accrued rights. Otherwise also, it would have been arbitrary exercise of power. Besides, there was no binding statutory force of the so called Joint Note of the Officers’ Association, as admittedly, to Officers’ Association even the provisions of Industrial Disputes Act were not applicable and Joint note had no statutory support, and it was not open to forgo the benefits available under the Regulations to those officers who have retired from 1.4.1998 till December 1999 and thereafter, and to deprive them of the benefits of the Regulations. 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, as has been laid down by this Court in Central Inland Water Transport Corporation Limited & Anr. vs. Brojo Nath Ganguly & Anr., (1986) 3 SCC 156 & Delhi Transport Corporation vs D.T.C. Mazdoor Congress, (1991) Supp.1 SCC 600.

33. The only purpose of the addition of Explanation (c) to Regulation 2(s), was to take away the actual computation of the pension on the basis of the salary, which was drawn in the preceding ten months. Thus, we have to hesitation to strike it down being arbitrary and repugnant to other provisions/Regulations namely 2(d), 38(1)(2) and 35. The Explanation (c) to Regulation 2(s) is hereby struck down, as it could not have been enacted retrospectively to take away accrued rights. Even otherwise also it is held to be arbitrary and irrational. More so, in view of the fact that only by way of a temporary measure, that discrimination was created and the Explanation was deleted with effect from 1.5.2005.”

34. Thus, we set aside the judgment rendered by the High Court of Delhi and affirm that of High Courts of Karnataka at Bangalore and the High Court of Madras. The appeals filed by the Banks are dismissed and the appeal filed by the Association is allowed. Resultantly, let the amount which was due and payable be paid with 9% interest, be calculated and paid within four months from today.

35. All pending applications stand disposed of.”

7. The matter was put up to the Managing Committee of IBA in its meeting held on 28.3.2018. The committee resolved that the judgement of the Hon’ble Supreme Court may be forwarded to all member banks which are party to above mentioned Joint Note / Bipartite Settlement for their necessary action. As such, a copy of the judgement of Hon’ble Supreme Court is enclosed.

8. As directed by Managing Committee we have taken a Legal Opinion to know the impact of the judgement on various Banks which is given below:

(a) All Nationalized Banks who have Pension Regulations, 1995 will have to give effect to the judgement and pay the differential arrears in the amount of Pension which was due and payable with 9% interest within 4 months from the date of judgement i.e. 13.02.2018.

(b) Banks incorporated under special statutes will also have to give effect to the judgement if they have implemented provisions of the above mentioned Joint Note / 7th Bipartite Settlement.

(c) Private Banks which are not amenable to the Writ jurisdiction of the Hon’ble High Courts/Supreme Court, though can take the plea that captioned judgement is not applicable to them, should also give effect and comply with the captioned judgement if they have implemented provisions of the above mentioned Joint Note/7th Bipartite Settlement. The view expressed in this point Is based on the possibility that if the employees of the Private Banks approach the Civil Court on the basis of said Hon’ble Supreme Court judgement, they would procure a favourable verdict.

Yours faithfully,
B Raj Kumar
Deputy Chief Executive

Source: http://www.iba.org.in/

SC JUDGEMNT

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Indian Banks’ Association
HR & INDUSTRIAL RELATIONS

No.HR&IR&HR/CIR/G2/BRK/4684

March 16, 2018

Chief Executives of Member Banks which
are parties to the Bipartite Settlement

Dear Sir/Madam,

2nd Option of Pension for Compulsorily Retired Officers/Employees

The United Forum of Bank Unions (UFBU) representing workmen and officers in Banks were requesting to allow another option to those Who were in the service Of the Banks prior to 29th September, 1995 in case of Nationalized Banks / 26th March, 1996 in case of Associate Banks of State Bank of India and continued in service on or after that date and did not opt for pension when offered as per the scheme.

2. After holding various rounds of discussions in the matter, consensus was arrived at between the parties and a Bipartite Settlement/Joint Note was signed on 27.4.2010 to extend another option of pension to those Workmen / Officers who:-

(a) were in the service of the Bank prior to 29th September, 1995 in case of the Nationalised Banks/26th March, 1996 in case of Associate Banks of State Bank of India and continue in service of the Bank on the date of signing above mentioned Bipartite Settlement/Joint Note;

(b) exercise an option in writing within 60 days from the date of offer, to become a member of the Pension Fund and

(c) authorise the Trust of the Provident Fund of the Bank to transfer the entire contribution of the Bank along with interest accrued thereon to the credit of the Pension Fund. In addition, the individual employee/officer has to pay @ 2.8 times of the revised pay for the month of November 2007.

(d) were in service of the Bank prior to 29th September 1995 in case of Nationalised Banks /26th March 1996 in case of Associate Banks of State Bank of India and retired after date and prior to the date of above mentioned Bipartite Settlement/Joint Note i.e. 27.04.2010;

(e) exercise an option in writing within 60 days from the date or offer to become a member of the pension fund and,

(f) refund within 30 days after expiry of the said period Of 60 days, the entire amount Of the Bank’s contribution to the Provident Fund and interest accrued thereon received by the employee/officer on retirement together with the payment over and above the said amount at 56% of the amount.

3. Families of above mentioned employees officers were also made eligible for said option subject to refund of Bank’s contribution to the Provident Fund received by them as mentioned in point (f) above.

4. 2nd option of Pension was, however, not made available to the employees/officers who were compulsorily retired by the Bank. As such, some of these aggrieved employees/officers approached different Hon’ble High Courts seeking relief in the matter. Various Hon’ble High Courts viz Andhra, Madras, Madhya Pradesh, Punjab & Haryana and Patna have ruled in favour of the employees\officers who were compulsorily retired. However Hon’ble Delhi High Court has taken a contrary view on the technical ground.

5. The matter was placed before the Standing Committee on HR of IBA in its meeting held on 07.12.2017. Aner deliberations, the committee recommended to place the matter before the Managing Committee of IBA. Accordingly. the matter was put up to the Managing Committee of IBA in its meeting held on 29.12.2017. The committee advised to seek legal opinion on the judgements as to whether 2nd option of pension may be allowed to all ex-officers/ex-employees who were compulsorily retired from Bank’s service between 29.09.1995 to 27.04.2010 or only selectively to those who approached the Bank for the same.

6. The legal opinion from Shri S.D.Kelkar, Senior Partner, Kelkar & Associates whose services have been engaged in IBA as retainer, Was obtained in the matter, His opinion is as under:

“Having considered the decisions rendered by the Hon’ble High Courts of Andhra Pradesh, Madras, Madhya Pradesh, Punjab & Haryana, Patna which have ruled in favour of the employees/officers who were compulsorily retired way way of punishment/ on the ground that they are covered by the Joint Note as well as decision of the Hon’ble Delhi High Court which has taken a contrary view on the technical ground and the fact that SLPs preferred against the Judgments of the High Courts which had ruled in favour of the employees were dismissed though such dismissal cannot be considered as law laid down by the SC., we are of the considered view the banks are bound to give 2nd option to all the employees/ officers who were compulsorily retired and who fall within the ambit of the Joint Note to exercise option for the following reasons:-

The Joint Note does not distinguish between voluntary retirement, superannuation, premature retirement, compulsory retirement.

Even the employees/ officers who are compulsorily retired by way of punishment are eligible for pension under the pension regulations.

Banks being “State” within the ambit of Article 12 of the Constitution of India should act in a fair and reasonable manner and should not restrict it only those who demand it. Such stand, if any, adopted by the banks may invite strictures from Courts’.

7. The views of the Legal Retainer of IBA were placed before the Managing Committee of IBA in its meeting held on 25.01.2018. The committee after deliberation concurred with the legal opinion placed before it and advised to inform all PSBs accordingly. The exact modus operandi of the extension of 2nd option to compulsorily retired employees/officers was to be worked out in discussions with GMs (HR) of PSBs to decide on a uniform methodology which will stand scrutiny of court.

8. To work out the methodology in this regard, a meeting of the GMs (HR) was convened on 28.02.2018 at IBA. After detailed discussions, a consensus has been arrived at to extend the option of pension to compulsorily retired employees/officers on same terms & conditions as are mentioned in Bipartite Settlement/Joint Note dated 27.04.2010, As per the agreed terms & conditions of said Bipartite Settlement/Joint Note, Pension/Family Pension shall be payable with effect from 27th November, 2009, provided that employees/officers who are compulsorily retired after that date shall get pension from the respective dates of such retirement. Court cases, if any, in the matter may be withdrawn forthwith.

9. Please do the needful accordingly.

Yours faithfully,
sd/-
B Raj Kumar
Deputy Chief Executive

Source: http://www.iba.org.in/

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Dearness Relief payable to Pensioners for the period February 2018 to July 2018

Indian Banks’ Association

HR & Industrial Relations

No.CIR/HR&IR/D/G2/2017-18/4433

February 1, 2018

(Designated Officers of all Members Banks which are parties to the Bipartite Settlements on Pension

Dear Sirs,
Dearness Relief payable to Pensioners for the period February 2018 to July 2018

The confirmed All India Average Consumer Price Index Numbers for Industrial Workers  (Base 1960=100) for the quarter ended December 2017 are as follows:-

October 2017 – 6551.03
November 2017 – 6573.86
December 2017 – 6528.21

In terms of Regulation 37 of Bank Employees’ Pension Regulations, 1995 Dearness Relief is payable to pensioners at rates specified in Appendix II to the Regulations.

Pending amendments to Pension Regulations, Banks may pay on ad hoc basis, the Dearness Relief payable to pensioners for the period February 2018 to July 2018 as per Annexure.

Yours faithfully,
sd/-

S K Kakkar
Senior Advisor (HR&IR)

Authority: http://www.iba.org.in/

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Public Sector Bank(PSB) employees pension scheme : Public Sector Banks employees, who have joined on or after 1.4.2010 are covered under New Pension Scheme (NPS) and , the employees of State Bank of India, who have joined on or after 1.8.2010 are covered under New Pension Scheme (NPS).

The below detailed information was presented as a written reply to a question in Lok Sabha by the Minister of State for Finance Shri.Namo Narain Meena on 8.3.2013.

“Most of the employees of various Public Sector Banks (PSBs) are covered under Bank Employees Pension Regulations pronounced in 1995. Employees who did not opt for pension scheme are continuing under Contributory Provident Fund. Employees who have joined on or after 1.4.2010 are covered under New Pension Scheme (NPS). Employees of State Bank of India are covered under SBI Pension Fund Rules which came into existence in 1955. Employees joining State Bank of India on or after 1.8.2010 are covered under New Pension Scheme (NPS).

Employees of Regional Rural Banks cannot be included in the prevailing Pension Schemes of the PSBs since they belong to different organisations.

National Bank for Agriculture and Rural Development( NABARD) has framed a draft Model Pension Scheme and Regulations on the above lines for introducing pension for RRBs which envisages RRBs to decide on introduction of pension for its employees at par with nationalised banks taking inter alia their financial position into consideration”.

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