IN RECENT TIMES DS NAKARA & 1.1-2015 JUDGEMENT WAS BIBLE FOR BANK RETIREES. BUT THAT ALSO CIRCUMVENTED IN RECENT JUDGEMENTS.
WITH 13TH SUPREME COURT JUDGEMENT ON 1616 1684 CASE, HOPES RESURRECTED POSITIVELY FOR BANK RETIREES. OF COURSE JUDGEMENT IN DETAIL NOT STILL AVAILABLE.
IN LIGHT OF THIS, THE BOB RETIREES AND BOB MADRAS HIGH COURT JUDGEMENT IS A BEACON
TO BANK RETIREES AS THIS JUDGEMENT IS MOST FAVOURABLE TO RETIREES ARGUMENTS, HOWEVER INTEREST AND COSTS DENIED WHEREAS IN OTHER SET OF JUDGEMENT, TOTAL SIX SETS OF HIGH COURT CASES TAGGED TO SUPREME COURT, RS.10000/- TO EACH RETIREE PETITIONER GRANTED.
THOSE FEEL BORED TO GO THROUGH ENTIRE JUDGEMENT MAY SEE THE LAST PART CONTAINING JUDGE'S AVERMENTS AND DEPRECATIONS.
FAVOURED IN VIOLET, UNFAVOURED IN RED AND COMMENTS IN GREEN YELLOW
27.4. IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.6.2011
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
Writ Appeal No.1209 of 2007
1.G.Palani
For appellants : Mr.AL.Somayaji,
Senior Counsel
1.Bank of Baroda,
rep.by The Chairman & Managing Director,
The appellants are the retired employees between 30.11.1998 and 31.8.2000, either on superannuation or on voluntary retirement.
Originally, they have initiated writ of mandamus directing the second respondent to pay the difference in basic pension and additional pension and commutation of pension
3. After the respondents brought in an amendment to the Regulations in April, 2003, by adding sub-clause (c) after 2(S)(b) with retrospective effect from 1.4.1998,the appellants have filed a petition to amend the prayer to 'declare that sub-clause (c) of clause (S) of Regulation 2 of Bank of Baroda (Employees) Pension Regulations, 1995 is null and void
4. it is seen that Pension scheme was first introduced in 1995 in Banks and thereafter by virtue of the Joint Note signed by the Indian Banks' Association with various Bank Officers Unions on 14.12.1999, on salary revision for officers in Public Sector Banks, a salary revision was proposed and accepted.
In this Joint Note, clause 6 defined 'pension' as:
'Pay' for the purpose of pension shall be the aggregate of pre-revised pay and Dearness Allowance thereon at CPI (consumer price index) 1616 points."
According to the appellants, this clause has resulted in payment of reduced amount of pension to them since the respondents 1 and 2 have not taken the last ten months enhanced salary for calculating the pension, but only the earlier unenhanced salary, citing the Joint Note. This, according to the appellants, is illegal
According to counsel to appellants, the impugned amendment brought in by the respondents whereby 'pay' was defined only for the purpose of payment of reduced pension to the appellants, contrary to the pension regulations when they retired, as compared to payment of provident fund based on the revised pay from 1.4.1998, is illegal.
He referred a Three Judge Bench judgment of the Honourable Apex Court in SALABUDDIN MOHAMED YUNUS vs. STATE OF ANDHRA PRADESH [1984 LAB I.C. 1738]
In these circumstances, the Honourable Apex Court has held the said action of reducing the pension as illegal 'as the right to receive pension flowed immediately on retirement and was property within meaning of Articles 19(1)(f) and 31(1) of the Constitution i.e. a fundamental right and could not be taken away either under Clause (5) of Article 19(1) and such deprivation was also not justified under Article 31(1) since the same could not be said to be for public purpose and no compensation was being paid to the public servant."
9. The learned senior counsel would also place reliance on a judgment of a Division Bench of Kerala High Court in SYNDICATE BANK AND OTHERS vs. CELINE THOMAS AND OTHERS [2006-II-LLJ 413]. In this case, the employer Bank denied to its employees who retired between November 1, 1992 and October 31, 1994, gratuity payable to them on the basis of revised pay granted after their retirement with retrospective effect, by invoking provision in a Memorandum of Understanding reached between Nationalised Banks and employees in June 1995.
the Division Bench of the Kerala High Court has held:
"... the payment of gratuity is a statutory benefit. It had to be computed on the basis of monthly pay of an employee. Memorandum of Understanding could not meddle with statutory prescriptions."
11. On the other hand, the learned standing counsel for the respondents 1 and 2 would argue that the power of the Bank to amend the Pension Regulations is derived from Section 19(1) of the Banking Companies (Acquisition and Transfer of Undertakings) Act and in this case, by virtue of a settlement entered into by the Indian Banks' Association with the Unions, revised pay scales have been brought into effect from 1.4.1998 and regarding the persons like the appellants, it has been agreed that such enhancement in the emoluments is only for the sake of salary and not for computing the pension.
The learned counsel would further argue that the present writ proceedings are not maintainable on account of laches since the appellants have sought to challenge the definition of 'pay' in the Joint Note dated 14.12.1999 and Bipartite Settlement dated 27.3.2000 almost four to five years after the same was agreed upon by the Officers Association representing a majority of the bank officers at the apex industry level
(THIS GUIDANCE FOR 2ND PENSION OPTION CASE BEING FILED IN COURT)
12. In support of his arguments, the learned counsel would place reliance on the following judgments:
1. TATA ENGINEERING AND LOCOMOTIVE COMPANY LIMITED vs. THEIR WORKMEN [(1981) 4 SCC 627]
a Three Judge Bench of the Honourable Apex Court has held that:-
If the Settlement had been arrived at by a vast majority of the concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored while deciding the reference merely because a small number of workers were not parties to it or refused to accept it,
3.3. I.T.C.LTD. WORKERS WELFARE ASSOCIATION AND ANOTHER vs. THE MANAGEMENT OF ITD LTD. AND OTHERS [AIR 2002 SC 937] The APEX COURT state that :-
"A settlement which is a product of collective bargaining is entitled to due weight and consideration, more so when a settlement is arrived at in the course of conciliation proceeding. The settlement can only be ignored in exceptional circumstances viz. if it is demonstrably unjust, unfair or the result of mala fides such as corrupt motives on the part of those who were instrumental in effecting the settlement.
Exclusion of workmen retiring before that date is no ground to characterise the settlement as unjust or unfair.
20. A plain reading of both these Regulations would make it clear that after completing a qualifying service of not less than thirty three years, the amount of basic pension shall be calculated at fifty per cent of the average emoluments i.e. average of the pay drawn by an employee during the last ten months of his service in the Bank. But, in the case on hand, the straight case of the appellants is that though their pay has been revised from 1.4.1998, this pay hike has not been taken into count by the respondents on the ground that it was not agreed upon between the Unions and the Indian Banks' Association. If we apply the clear meaning of Regulations 2(d) and 35(2), this action of the respondents 1 and 2, must be held as a non-est one.
21. When the Pension Regulations strictly define that the last ten months emoluments should be taken into count for calculating the pension and when it is not at all the case of the respondents 1 and 2 themselves that the Regulations 2(d) and 35(2) have also been suitably amended, to achieve the purpose of impugned action, we cannot attach any logic to the differentiation introduced into the definition of the term 'pay' by the impugned action of the respondents since by virtue of this impugned action of the respondents 1 and 2, a legal conflict and contradiction has been created between the terms of Regulations, particularly 2(d) and 35(2), which are having the statutory force and the terms of the impugned amendment.
22. The respondents have relied on the judgments to the effect that they have the power to prescribe a cut-off date and that the settlements entered into between the workers unions and the Management by virtue of collective bargaining cannot be thrown out simply. We have no quarrel with this well established principle of law. But, in the case on hand, it is not that unbridled power of the respondents, that is in dispute, but the challenge is to the way in which an unusual meaning has been sought to be introduced by the respondents, quite against the very purport of the Pension Regulations.
24. At this juncture, the legal question that would fall for consideration is 'whether a settlement entered into by the Unions, contrary to the Regulations, would be legal'?
25. As has already been observed by us supra, in the case on hand, though the Joint Note talks about the pension, there is no mention therein about the Regulations 2(d) and 35(2). Therefore, it goes without saying that the 'average emoluments' for the purpose of counting the pension remained as the 'pay drawn by an employee during the last ten months of his service in the Bank' and that the basic pension shall be calculated at fifty per cent of the average emoluments. In the absence of any amendment to these Regulations, the attempt made on the part of respondents, curtailing this benefit to the appellants and such other similarly standing persons, by introducing the impugned amendment is illegal.
Therefore, without any hesitation we can say that the impugned amendment brought in by the respondents 1 and 2, quite against the Regulations 2(d) and 35 (2) and the very intent and purport of the Regulations is null and void.
( THIS SIMILARLY STANDING PERSONS IS BENEFICIAL TO ALL BANK RETIREES IN SAME POSITION AS COVERED - THE JUDGES COMMENT WITH THESE WORDS GREATLY HELPED ALL BANK RETIREES)
we have no hesitation to hold that there is complete justification in the prayer of the appellants, since the respondents 1 and 2 have tried to make an illegal differentiation between 'salary' and 'pension', further ignoring to honour the Regulations 2(d) and 35(2). It is also to be held that the receipt of the arrears of pay by the appellants cannot, in any way, stand in their way of challenging the impugned action of the respondents 1 and 2, since being contrary to the very purport and intention of the Regulations.
27. ..............the unassailable fact that the respondents are having power to amend the Regulations, by due process of law.
28. ........... this Writ Appeal is allowed, setting aside the order of the learned single Judge. The respondents 1 and 2 are directed to calculate and pay the difference of monetary benefits to the appellants. Benefits with interest at a rate to be determined by this Court, cannot be ordered and the same stands rejected. No costs.
(WHEN APPELANTS COMMAN MAN ORDY. RETIREES PAY FROM THEIR POCKET, THE RESPONDENTS FROM COMPANY'S EXPENSES, IE THE DECISION MAKERS NOT FROM THEIR POCKET HENCE NO FINACIAL RESPONSIBILITY OR PRUDENCE, SO APPELANTS R HONOURED TO BE PAID THEIR DUE EXPENSES & INTEREST AS PUNISHEMENT TO THE IRRESPONSIBLE OFFICIALS AND BNK AND IBA TO DESIST CREATING SUCH IRRESPONSIBLE LITIGATIONS AS POINTED OUT IN 1.1.2015 JUDGEMENT THAT LITIGATION FOR THE SAKE OF LITIGATION SHOULD BE AVOIDED/PUNISHED)
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