CANARA BANK WORKERS’
Phone : 22260185/22266469 email: firstname.lastname@example.org
Circular No. 4/2010 Dated:
Ever since the news about our obtaining an interim stay at the Hon’ble Madras High Court was flashed through the internet on 23.06.2010, we have been receiving hundreds of calls from various parts of the country requesting them to provide additional details.
Simultaneously, a vicious propaganda was unleashed through SMS in the Tamil Nadu region that the stay is applicable only for our members and not for others. Those who had no idea about the details of our affidavit were spreading another rumour that by obtaining a stay order we have stopped all chances of getting any option for pension. In many other parts of the country, another sms campaign was going on that obtention of an interim stay is nothing but a false propaganda and there was no such stay. Many AIBEA leaders were quoting the internet and telling their members that no such case is available in the web site of Madras High Court.
On the contrary, congratulatory messages were pouring in thousands from bank employees from various parts of the country, especially from U. P., which has taken a lead in organizing their protest over this settlement from day one.
First let us make one thing clear. Our writ petition was filed only to quash the Clause 32 of the 9th bipartite settlement and that of Clause 1 of the pension settlement, in so far as the said clauses require the PF optees to contribute 2.8 times the Nov 2007 revised pay if they want to opt for the pension scheme. We had also further prayed to direct the respondents to strictly adhere to Clause 3 of the minutes of discussions held on 27.11.2009 between the IBA and the unions with regard to sharing the additional cost of pension.
Ever since the signing of the settlement, the UFBU has never come out with any communication for the reasons in their sudden change of stand from the earlier agreed terms of 1.6 times (as per the minutes of discussion on 27.11.2009) the revised pay from all the employees to putting the entire load on the PF optees. Now we have made all the signatory unions of the settlement, besides the IBA as respondents in our writ petition. The real face of all these unions will now become public when they file their counter to our writ petition in the HighCourt.
The earlier orders of the court was received by us late in the evening of 25.06.2010 and on perusing the verbatim orders, we observed some error in our representation. Our advocates moved the necessary motion before the Hon’ble High Court to set right those errors at the earliest opportunity viz., on 28.06.2010. The
During the course of the hearing on 29.06.2010, the advocates for AIBEA and IBA were present and they objected to the continuation of the stay and wanted the same to be vacated.. The Hon’ble Judge turned down their objections and advised them to file their counter, now that they have taken note of our writ petition. The Hon’ble Judge also ruled in the open court that he will issue amended orders as prayed for by us. Now the case has been posted for next hearing on 06.07.2010.
Friends, we now want all of you to be clear about one thing. The interim stay is only on the operation of Clause 32 of the 9th bipartite Settlement & Clause 1 of the pension settlement, only in so far as the said clause require the PF optees to contribute 2.8 times of Nov 2007 pay to become members of the Pension Fund. It is not limited just to our members alone, but applicable for all the bank employees who are affected by the said settlement. We have neither obtained any stay on the settlement nor have we interfered in any manner with the payment of arrears.
Our entire writ petition can be viewed in the internet at AllBankingSolutions.com and also at Bankers-Sangharsh.com, both of whom have been doing a commendable job of empowering the bank employees by bringing out the latest happenings in the industry.
It has also been brought to our knowledge that another sms campaign is going around advising the bank employees not to pay any money or donation for fighting court cases. To day, we can proudly inform everybody that Canara Bank Workers’
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(SPECIAL ORIGINAL JURISDICTION)
W.P.NO. 12269 OF 2010
(Under Article 226 of the Constitution of
1. Canara Bank Workers
2. Sri R Radhakrishnan, Son of
2. Indian Banks Association, Rep. by its Chairman,World Trade Centre,6th Floor, Centre 1, Cuffe Parade,Mumbai - 400005
3. Canara Bank,Rep. by its Chairman & ManagingDirector, Head Office,112,
4. All India Bank Employees’ Association (AIBEA),Rep. by its General Secretary,
5. National Confederation of Bank Employees (NCBE),
Rep. by its General Secretary, C/o State Bank of India-L H O, 3rd Floor,Bhadra, LalDharwaja
6. Bank Employees’ Federation of
7. Indian National Bank Employees’ Federation (INBEF),Rep. by its General Secretary,Bajaj Bhawan-I Floor,Nariman Point, Mumbai-400 021
8. National Organisation of Bank Workers’ (NOBW), Rep. by its General Secretary
Ram Naresh Bhawan, Tilak Gali,Chuna Mandi, Pahar Ganj,New Delhi-110 055 …
AFFIDAVIT No.34, North Mada Street, Nungambakkam, Chennai – 600 034, do hereby solemnly affirm and sincerely state as follows:-
1. I am the 2nd Petitioner in the above Writ Petition and as such I am well acquainted with the facts of the case.
2. I submit that the Petitioners are filing this Writ Petition praying for the issue of a WRIT OF CERTIRARIFIED MANDAMUS calling for the records relating to Clause 32 of 9th Bipartite Wage Settlement dated 27.4.2010 and Clause (1) of Pension Settlement dated 27.04.2010 only insofar as the said clauses requires contributory provident fund optees to become pension optees upon contributing 2.8 times of the revised pay payable for the month of November 2007 onwards to the Pension Fund and quash the same and consequently direct the Respondents to strictly adhere to the clause 3 of Minutes of the discussion held on 27.11.2009 between IBA representing the Management of Banks which are parties to the Bipartite Settlement and five workmen unions viz. AIBEA, NCBE, BEFI, INBEF and NOBW with regard sharing the additional cost of pension on account of wage revision in excess of statutory contribution of 10% of pay and pass such other order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case and render justice.
3. I submit that the 1st Petitioner is Canara Bank Workers’
4. I submit that I am a member of the Managing Committee of Canara Bank Workers’
5. I submit that the 2nd Respondent is a body representing managements of all Public and Private Sector Banks who are its members and is mandated by these Banks to negotiate and enter into a settlement with all the apex employees / officers Unions operating in various Banks. That, the terms and conditions of services of employees of Banks are governed by the provisions of Sastry Award and Desai Award as modified by various Bipartite Settlements entered in to by the Indian Banks Association and various apex unions, including Pension Scheme of the Bank Employees.
6. I submit that, in
“We have considered this matter very carefully. We find from the statement of accounts filed by the Bank in relation to this Fund that the apprehensions of the Bank on this part are not wholly justified. The position both in respect of its general profits as well as the earnings out of this Pension and Guarantee Fund is such that for some years to come the absence of employees’ contributions would not really create any difficulty for the Bank.The Bank also pointed out that contributory pension funds are not unknown in other countries and referred us to some institutions which provide for such contributory funds. This is not doubt true; but generally speaking a pension ought really to be independent, if possible, of any contributions from the employees. On a rough calculation, it appears that for 3 or 4 years after retirement the members’ own contributions generally suffice for payment of pension under the rules of this Fund. It is only thereafter that the general fund contributes towards employees’ pension fund. In other words, there is really no pension earned by the employees from the Bank’s fund during the first 3 or 4 years. Agreeing with the view of Shri Gupta and also of the Sen Tribunal we are of opinion that the employees contributions should be stopped.”
A Photocopy of the
7. I submit that from time to time the Indian Banks Association and various apex unions of the Bank employees(listed herein as Respondents No. 4 to 8) enter into Bi Partite Settlements in respect of terms and conditions of Services including pension scheme for Bank Employees.
8. I submit that for the first time in the year 1993 the Indian Banks Association and various apex unions of the Bank Employees entered into a settlement on 29.10.1993 (hereinafter referred as Pension Settlement dated 29.10.1993) in respect of the Pension Scheme. Here it is important to highlight that prior to 1993 there was no general scheme of Pension for Bank Employees and there was no Pension Agreement in Banks. In the Banks there was only Contributory Provident Fund Scheme in which The Banks’ and Employees made contributions equally at effective rate i.e. 8.33% or 10%.
9. I submit that in the Pension Settlement dated 29.10.1993 in Cl 2.ii it was provided that the Pension Fund will be constituted by transferring Bank’s Contribution to the Provident Fund Account along with accrued interest there on to the Pension Fund and there was no provision that the employees shall have to pay any amount other than the one as provided in Clause 2.ii. A copy of the Pension Settlement dated 29.10.1993 is enclosed in the Typed Set of papers.
10. I submit that after the Pension Settlement dated 29.10.1993 the Govt. of India issued a Notification and thereafter all the member Banks of the 2nd Respondent, Indian Banks Association published Pension Regulations for its employees, after consultation with the Reserve Bank of India and with the previous sanction of the Central Government, which is known as Bank Employees’ Pension Regulations 1995, thereby making these pension regulations statutory in nature.
11. I submit that the Chapter 3 of the aforesaid Regulations provide for provisions for Composition of the Pension Fund wherein Regulation 7 provides as under:
“The Fund shall consist of the following, namely:-
a) the contribution by the Bank at the rate of ten per cent per month of the pay of the employee;
b) 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;
c) 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;
d) the investment in annuities or securities purchased out of the moneys of the Fund and interest thereon;
e) amount of any capital gains arising from the capital assets of the Fund;
f) the additional annual contribution made by the Bank in accordance with the provisions contained in regulation 11 of these regulations;
g) any income from investments of the amounts credited to the Fund;
h) the amount consisting of contribution of the bank along with interest refunded by the family of the deceased employee.”
A copy of the relevant pages of the Bank Employees’ Pension Regulations 1995 is enclosed in the Typed Set of Papers.
12. I submit that from a perusal of the Regulation 7 of the Bank Employees’ Pension Regulation it is clear that there is no provision for contribution of any amount by the employees, other than The Banks’ Contribution to P.F. Account along with accrued interest thereon.
13. I submit that Regulation 11 of the said Chapter III that provides for Actuarial Investigation of the Fund clearly states that:
“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 Funds as may be required to secure payment of benefits under these regulations. Provided that the Bank shall cause an investigation to be made by an Actuary into the financial condition of the Fund, as on the 31st day of March immediately following the financial year in which the Fund is constituted.”
14. I submit that from a perusal of the above Regulation 11 it is clear that it is for the individual member banks to 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 pension fund as may be required to secure payment of benefits under these regulations. This regulation also does not envisage any contribution from the employees towards the pension fund and the entire responsibility of ensuring adequacy of funds solely rests on the individual banks.
15. I submit that in pursuance of the Pension Settlement dated 29.10.1993 and the Pension Regulations
16. I submit that in terms of clause 22(4) (b) of the said pension regulations 1995, any interruption in the service of an employee due to participation in strike shall entitle forfeiture of his entire past service and shall not qualify for pensionary benefits. As a result of this penal clause many of the employees did not opt for Pension. However the said penal clause was ultimately removed as per the decision of Government of India, communicated to member banks by the 2nd Respondent in the year 1998.
17. I submit that subsequent to the introduction of Pension Regulations, the bank employees had wage revisions during the years 1995 (6BPS), 2000(7 BPS) & 2005(8BPS) by way of bipartite settlements. During the 7th Bipartite Settlement of the year 2000 , the 2nd Respondent imposed that a share of the wage revision increase to be passed on to all the employees to augment the pension fund, and the same was agreed to by the Apex Unions, even though the Pension Regulations do not envisage any contribution by the employees.
18. I submit that during the 7th Bi-partite settlement, the increased cost of pension was worked out at 26.5%. After reducing the statutory contribution of 10% by the banks, the balance of 16.5% was shared between the employees and the Banks @ 8.25% + 8.25% (Fifty/Fifty). Thus from out of the wage revision offered, this pension fund gap was first filled, and the balance amount was offered as revised wages to the employees. It is pertinent to note here that even the PF optees had to forego a portion of their wage revision for building up this pension fund, as a result of the above act of the 2nd Respondent.
19. I submit that similarly in the 8th Bi-partite Settlement of 2005, the increased cost of pension of 30.5% was shared as 10% (statutory contribution), 9.25% by the employees and 11.25% by the banks. (Shared at 45:55) and thus it can bee seen that all the employees irrespective of their option had contributed to the increased cost of pension.
20. I submit that after deletion of the penal clause on strike and because of the fact that all employees including the PF optees were forced to contribute to the Pension fund, all the employees who did not opt for Pension earlier and various unions raised a demand for extending 2nd option to such employees, as similar options were extended to the employees of Reserve Bank of India in the year 2000. Thereafter on 27.11.2009 the Indian Banks Association and the Respondent unions (under a common platform styled as United Forum of Bank Unions, also called as UFBU) have mutually agreed in respect of extending another option (2nd Option) to join the Pension Scheme to the leftover Bank employees. The Record Note of Discussions signed on the same day specifically provides under Point 3 (b) that 30% of the identified gap in the Pension Fund is agreed to be shared by all the employees who are in service of the Banks as on the date of the Memorandum of Settlement to be signed”. A copy of the Minutes of Discussions and Record Note of Discussions dated 27. 11. 2009 is enclosed in the Typed Set of Papers.
21. I submit that thereafter on date 27.4.2010 the 2nd Respondent and different apex unions of the UFBU entered in to a Pension Settlement under Provisions of the Industrial Disputes (Central) Act
22. I submit that Clause 1 & 2 of the terms of the Pension Settlement dated 27.4.2010 provides the relevant provision for opting Pension in respect of working employees as on the date of the settlement Relevant provision of the terms of settlement is quoted below:
(1) “All workmen employees are in the service of the bank as on the date of this Settlement who exercise option to join the Pension Scheme in terms of this Settlement will contribute from their arrears on account of wage revision in terms of the Settlement between the parties dated 27th April 2010 an amount of Rs. 878 crores towards their share in the amount of Rs. 1800 crores offered by UFBU towards 30% of the estimated funding gap of Rs. 6000 crores. The said amount is worked out @ 2.8 times of the revised pay for the month of November 2007, for individual workmen employees.”
(2) “Another option for joining the existing Pension Scheme shall be extended to those employees who:-
(1) (a) were in the service of the bank prior to 29th September
(b) exercise an option in writing within 60 days from the date of offer, to become a member of the Pension Fund and
(c) authorize 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.
23. I submit that thereafter on the same day i.e. on 27.4.2010 the 2nd Respondent and different apex unions have entered in to another settlement hereinafter referred as 9th Bipartite Settlement (9th B.P.S.) and Cl.32 of the 9th B.P.S. provides the provision of another option for Pension. The Cl.32 of 9th B.P.S. dated 27.4.2010 runs as under:
“32. Another Option for Pension (in Banks other than State Bank of India) Workmen employees in the service of the bank as on 27th April 2010 and who exercise their option to join the Pension Scheme in terms of the Settlement dated 27th April 2010 will contribute from their arrears on account of wage revision in terms of this Settlement an amount of Rs.878 crores towards their share in the amount of Rs.1800 crores offered by UFBU towards 30% of the estimated funding gap of Rs.6000 crores. The said amount is worked out @ 2.8 times of the revised pay payable for the month of November
A copy of the 9th B.P.S. dated 27.4.2010 is enclosed in the Typed Set of papers.
24. I submit that, in the Pension Settlement dated 27.4.2010 and in the 9th B.P.S. dated 27.4.2010 it has been provided that those employees who want to opt to join Pension Scheme now, shall have to pay 2.8 times of the revised pay as on November 2007 from the arrears payable to them on account of 9th B.P.S., additionally apart from Banks’ contribution to P.F. account along with interest accrued thereon. I submit that the above Clause 32 of the 9th Bi-partite Wage Settlement dated 27.04.2010 and Clause (1) of Pension Settlement dated 27.04.2010 only insofar as the said clauses requires contributory provident fund optees to become pension optees upon contributing 2.8 times of the revised pay payable for the month of November 2007 onwards to the Pension Fund is liable to the quashed for the following among other grounds.
G R O U N D S
A. In the previous Pension Settlement dated 29.10.1993 and Pension Regulations 1995 there was provision only for transfer of Banks’ Contribution to Provident Fund Account along with Accrued Interest and there was not any provision for payment or transfer of any other additional amount.
B. While in the earlier 7th and 8th Bipartite Settlements, all the employees (both pension and PF optees) have contributed to the funding gap in the Pension fund, in the present settlement the entire load has now been placed only on those employees who want to opt for pension, while the existing pension optees are left free. I submit that the above contemplated recovery exclusively from the present PF optee’s who now wish to join the Pension Fund amounts to discrimination and is violative of Articles 14 and 16 of the Constitution of India.
C. Even assuming that no further option is given for the Pension, still there would have been a shortfall/gap in the Pension Fund as it had in the past and that no proposal has been provided by the 2nd Respondent to bridge that gap by recovering exclusively from the existing Pension optees.
D. That, here it is submitted that by virtue of the Pension Settlement dated 27.4.2010 and the 9th B.P.S. dated 27.4.2010 those employees who shall opt for Pension Scheme now shall have to transfer a huge amount like Rs.60,000 to Rs. 1.50 lacks according to the category and designation from the arrears payable on Wage Revision said to take effect on account of 9th B.P.S. w.e.f. 1.11.2007 to 30.4.2010.
E. That, if, for the purpose of comparison, we take the case of two identical employees in the same cadre with the same of date of joining and retirement and one of whom is a Pension optee and the other one a PF optee, the PF optee will have to shell out an additional amount of anywhere between Rs,60000/- and Rs.100000/- to join the Pension fund now, though ultimately both of them will be drawing the same of amount of Pension at their retirement. If giving option on different dates is the only reason for this disparity then it is violative of the Principles of Natural Justice.
F. That, whatever the present pension optees have so far contributed to the Pension fund, the same has been matched by the PF optees as well and therefore loading the entire burden on the PF optees who now wish to join the Pension fund is wholly unjust, arbitrary and discriminatory
G. That, insertion of provision for transfer of 2.8 times of Revised Pay as on November 2007 to the Pension Fund in the Pension Settlement dated 27.4.2010 and Cl.32 of the 9th B.P.S. dated 27.4.2010 is wholly illegal, unjust, arbitrary, discriminatory and against the Constitution of India.
H. That, here it is pertinent to highlight that Respondent No.7, Indian National Bank Employees’ Federation (A Banking Wing of INTUC) has lodged protest vide its General Secretary’s Letter dated 27.4.2010 and has signed the 9th B.P.S. under protest. A copy of the said letter dated 27.4.2010 is enclosed in the Typed Set of Papers.
I. It would not be out of place to mention that from time to time the Reserve Bank of
J. The Petitioners have been advised to state that the provision of transfer of additional amount to the tune of 2.8 times of the Revised Pay as on November 2007 apart from Banks’ Contribution to the Provident Fund Account with Accrued Interest is not envisaged under the Bank (Employees) Pension Regulations 1995 and is against the provisions of Article 309 and Article 14 of the Constitution of India. I submit that the Petitioners have been advised to state that if the operation of the provisions for transfer of 2.8 times of Revised Pay as on November 2007 apart from Banks’ Contribution to the Provident Fund Account along with accrued interest as embodied in Clause 1 and 2 of the Pension Settlement dated 27.4.2010 and Clause 32 of the 9th B.P.S. dated 27.4.2010 is not quashed then a large number of employees of the Bank shall be driven out and dissuaded to exercise the option and they shall suffer an irreparable loss and injury and the same would be by way of penalty for not opting earlier.
K. It is held by the Hon’ble Supreme Court of India in so many cases that the Pension is neither a bounty nor a matter of grace depending upon the sweet will of the Employer and it is a vested right of the Employees.
L. The action of the 2nd Respondent is wholly illegal, unjust, arbitrary and discriminatory and is totally contrary to the earlier agreed terms of sharing by al the employees, as per the minutes of the discussions recorded on 27.11.2009.
M. The Petitioners have been advised to state that by virtue of imposing the provision regarding transfer of 2.8 times of revised Pay of November 2007 apart from Banks’ Contribution to Provident Fund Account along with Accrued Interest from the arrears payable to employees on Wage Revision is punitive and shall dissuade them from opting for Pension Scheme and this is against the Social Security measures of the Government. N. The Petitioners have been advised to state that in view of the various amendments and modifications effected to the Bank (Employees) Pension Regulations 1995, “especially removal of the deterrent penal clause on strike”, that the 2nd Respondent should have given one more option to the employees for joining the Pension Scheme (as was done in the case of RBI and the Railways), without imposing any preconditions, which act alone would have served the ends of natural justice.
O. The Petitioners have been advised to state that by virtue of Regulation 7 and Regulation 11 of the Bank (Employees) Pension Regulations 1995 that there is absolutely no scope for the 2nd Respondent to recover any amount except the Bank’s contribution of PF and interest accrued thereon, and whatever the sum of money recovered earlier from the wage revision of individual employees in the name of bridging the Pension fund gap is highly illegal and therefore such amounts so deducted by the member banks of the 2nd Respondent have to be refunded to all such employees.
25. I submit that by virtue of the impugned clause 32 of the 9th Bi-partite Settlement dated 27.04.2010 requiring the present contributory provident fund optees to contribute at 2.8 times of revised pay as of November, 2007 to the Pension Fund, the members of the Petitioner Union are now required to contribute nearly Rs.60,000/- to Rs.1,00,000/- from out of the wage-revision arrears and the same has been withheld by the 3rd Respondent Bank in order to enable the respective members to exercise their option. In view of the various grounds stated above, it is prayed that this Hon’ble Court may be pleased to grant interim stay of operation of Clause 32 of 9th Bipartite Wage Settlement dated 27.4.2010 and Clause (1) of Pension Settlement dated 27.04.2010 only insofar as the said clauses requires contributory provident fund optees to become pension optees upon contributing 2.8 times of the revised pay payable for the month of November 2007 onwards to the Pension Fund pending disposal of the above Writ Petition and thus render justice.
26. I submit that if the members of the 1st Petitioner Union wants to exercise option to pension fund, then they have to agree for contributing at 2.8 times of revised pay as of November, 2007 as otherwise their option will not be processed. As stated earlier, as per the Minutes of Discussion held on 27.11.2009 between the Respondents 2 to 7, it was agreed that the additional cost of pension on account of wage revision in excess of statutory contribution of 10% of pay will be shared equally between management and employees and the share of employees will be deducted from the wage increase. Thus, it can be seen that no distinction was made between pension optees and CPF optees with regard to the contribution payable to the pension fund. However, in the impugned settlements the pension optees have been left out from making any contribution to the pension fund and only CPF optees are made liable to pay to the pension fund. In the event of the members of the 1st Petitioner Union refuses to contribute to the Pension Fund the Respondent Bank may not accept the option exercised by the CPF optees to become a pension optee. In such circumstances, it is just and necessary that this Hon’ble Court may be pleased to issue ad interim direction directing the Respondent Bank to accept the option exercised by the members of the 1st Petitioner Union without insisting on contribution at 2.8 times of revised pay as of November, 2007 pending disposal of the above Writ Petition and thus render justice.
27. I submit that, the Petitioners have not filed any other Writ Petition before this
For the foregoing among other reasons, it is humbly prayed that this Hon’ble Court may be pleased to issue a WRIT OF CERTIRARIFIED MANDAMUS or any other appropriate writ, order or Direction calling for the records relating to Clause 32 of 9th Bipartite Wage Settlement dated 27.4.2010 and Clause (1) of Pension Settlement dated 27.04.2010 only insofar as the said clauses require contributory provident fund optees to become pension optees upon contributing 2.8 times of the revised pay payable for the month of November 2007 to the Pension Fund and quash the same and consequently direct the Respondents to strictly adhere to the clause 3 of Minutes of the discussion held on 27.11.2009 between IBA representing the Management of Banks which are parties to the Bipartite Settlement and five workmen unions viz. AIBEA, NCBE, BEFI, INBEF and NOBW with regard to sharing the additional cost of pension on account of wage revision in excess of statutory contribution of 10% of pay and pass such other order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case and render justice.
Solemnly affirmed and signed his )
Name in my presence at Chennai )
On this the day of June, 2010 ) BEFORE ME
Corrections: Nil ADVOCATE, CHENNAI