New Delhi -110 201
Most Venerable Chief Justice,
SLAVE DYNASTY AND BONDED LABOUR IN INDEPENDENT INDIA – SOS PRAYER
Banks are the conduit of progress for any nation. Government implements all financial policies through public sector banks. Bank officers and employees are the people who served the remote areas of India and built up a resilient banking system that withstood even the global meltdown. Yet they are highly discriminated, the government that oversees banks pushed them to the wall and extended a step motherly treatment in derogation of the Constitution of India, the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and the Pension Regulations, 1995, a subordinate legislation. The people who lighted up and illuminated India by participating in nation building are now in a dark island and denied the right to live a dignified life by subjecting them to bonded labour.
Employees of public sector banks quasi government employees as banks are owned by and controlled by government. They deserve a better treatment than the government employees as their wage bills are met out of the profits banks make and not out of the exchequer. In pre-nationalization period, they were paid properly. The salary of a junior bank officer was Rs.500 when officers in junior level drew Rs.450 in civil service. Bankers got more than 11 percent those days. The higher pay given in awards and settlements was in view of financial risks and extended hours of work.
The ethnic prejudice in the mind of government officials against bankers made them set up Pillai Committee. Based on its recommendations the Officers' Service Regulations, 1979 was put in place in Public Sector Banks to stagger bank pay and the initial pay of bank officer was fixed at Rs.700 to peg it down for establishing parity with government pay. Though parity of reasoning required keeping bank pay at least at the level of government pay, the bank officer now gets Rs.25 K to Rs.30 K lesser than his counterpart in the government. The former worked six days a week in hectic mode and the latter, five days leisurely. This happened in the democratic India where the ministers in control of government took oath in the name of the magnificent Constitution to act without favour and to treat all manner of people alike. Bureaucracy played havoc with the bankers and retired bankers. A bank officer is now paid lesser than a Clerk in the government, and a bank clerk is paid lesser than a peon in the government.
The lower pay in banks hit bank pensioners too much and made them hapless. To aggravate things, though pension in banks was understood to be exactly on the basis of Central Civil Pension, it has not at all been revised with the Bipartite Settlements that took place in banking industry while basic pension of government pensioners got automatically revised with the implementation of each Pay Commission. This was in derogation of regulation 56 of Pension Regulations. The General Manager of a bank who retired 20 years back now gets a pension lesser than that of his Clerk retiring now.
Banks and the hawkish Indian Banks' Association ("IBA" for brevity) carved out a dark area in the democratic country where the Laws enacted by the Indian Parliament are overruled and collapsed. IBA a mere association of bankers (who are employees of banks) operates a parallel regime and flouts rules and regulations. Instead of appointing an independent agency like a Pay Commission for banks by a sitting or retired Justice to impartially determine the wages in the industry, the government is utilizing the IBA which has vested interests as intermediary to conclude wage revision through Bipartite Settlement to the detriment of bank employees. Initially, banks infused in the Pension Regulations, a clause providing for forfeiture of service if an employee participated in a strike. This could lead to loss of pension to those who opt for it when those who remain in CPF will not lose their terminal benefit. It prevented employees from opting pension. When the draconian clause was later deleted, fresh option was not given though offer terms underwent radical change. IBA kept them on cross-roads sans pension for more than a decade and gave it only in 2010. A fortiori, when regulation 56 stipulates that pension shall become payable to the employee from the date of his retirement, IBA denied it till 27.11.2009 on the basis of Joint Note on Pension signed in 2010. The statutorily vested pension of the already retired was looted for periods varying from one month to 14 years while those on rolls of banks on the date of Joint Note lost nothing which was extremely discriminatory among the retired and also the retired vis-à-vis those on rolls, though all constituted similar manner of people. Joint Note was derogatory and discriminatory in toto.
On the basis of Joint Note, banks raised an unlawful contribution to their Pension Funds from the retired at 56 percent of CPF paid on retirement and 2.8 times the pay for November, 2007 from employees on rolls when the subordinate legislation viz. Pension Regulation, 1995 makes banks the sole contributor to the Pension Fund. The Joint Note has no force of law since it has not been run through the Houses of the Parliament for their nod though the conclusion 10 in it stipulate the due procedure in law envisaged under section 19 (4) of the Banking Companies (Acquisition & Transfer of Undertakings ) Act, 1970 ( Act No.5 of 1970). It is on the basis of the void document that banks robbed the retired employees of a portion of the pension, which is a statutory sanction of the Indian Legislature. The defiance to regulations added to the pile of writ petitions in various High Courts of the country, giving avoidable trouble to courts that are saddled with huge influx of writ petitions. The victims are retired senior citizens who deserve empathy of the state but are driven to courts in the evening of their lives and banks monitored by the government are fighting with them at the expense of public money. Petitions are often escalated even to the Apex Court, which is unaffordable to the pensioners.
The Act No.5 of 1970 (sec 10 sub section 7) permits the Board of a bank to declare a dividend and retain surplus profits as reserves in the books only after taking care of superannuation funds. It implies that salary, pension and other legitimate establishment expenses have to be paid or provided for before arriving at profits. Given that all banks had been declaring and paying dividends regularly to the government and the government applies for part-financing the salary and pension to its direct employees, the process was akin to robbing Peter to pay to Paul. The act of IBA is akin to that of the East India Companies which plundered India and the country gets pushed into the pre-independent period as far as bankers and retired bankers are concerned. Public Sector Banks, which are "state" within the meaning assigned to them under the Constitution of India, that have to function like model employer are practicing bonded labour while denying due wages and pension to bank employees. It was all apparent breach of the Act and in derogation of the Indian Parliament that enacted it and put in place the Service Regulations and Pension Regulations pursuant section 19 to the Act.
Bank pensioners are denied their due pension and timely revision ever since the inception of the Pension Scheme while the Pension Funds of banks are abounding in resources and can foot three to four times the present pension to all the retired. Pension Fund cannot be applied for any purpose than payment of pension and family pension and employees recruited after 01 04 2010 are not to be serviced out of it as they are covered by PFRDA scheme. Besides, the Fund is built up of the EPF which was previously payable as statutory deferred wages to employees and held in trust by banks pursuant to EPF and Miscellaneous Provisions Act, 1952. Hence, Pension Fund is the money of the employees and retired employees and not the money of the banks. Payment of higher pension has no impact on profits of banks as pension is payable out of specific fund available. The government does not have to make any budgetary allocation for it. The dividend payable by banks to government will also not get reduced as pension is payable out of specific fund. The details of Pension Fund of public sector banks and of Union Bank of India by way of illustration are as follows:
Pension Fund Details of Public Sector banks
|
Amount in Rs. Crores
|
|
All Public Sector Banks
|
Union Bank of India
|
|
31.03.2014
|
31.03.2014
|
31.03.2015
|
Closing balance
|
1,58,782.61
|
6,249.75
|
7,732.57
|
Contributions received during the year
|
7,789.27
|
1,107.56
|
1,366.55
|
Income from investments
|
11,919.89
|
446.57
|
576.79
|
Actuarial gains
|
7,624.79
|
|
|
Total Accretions during he year
|
27,333.95
|
1,554.13
|
1,943.34
|
Pay out of benefits
|
9,998.06
|
380.68
|
451.91
|
Percentage of Pay out
|
36.57%
|
24.49%
|
23.25%
|
The above table demonstrates that all public sector banks together has an out flow of slightly above one third of the present annual growth of Pension Fund and Union Bank of India is paying less than one fourth of the annual accretion in Pension Fund as benefits to the beneficiaries. Government can, without having any impact on profits of the banks and without having to make any budgetary allocation, release the statutorily sanctioned benefit just by its personnel applying some wisdom in the matter by giving an appropriate direction.
The bank men are pushed into the netherworld since the present pay of a bank officer is less than that of a clerk in the civil service and a clerk in a bank is paid lesser than a peon in the government. Their right to live with dignity is denied. The bank men are having hectic work and extended hours which is in addition to accountability and transferability and are subjected to bonded labour with lesser wages. Public Sector Banks are "state" within the meaning assigned to them under the Constitution of India and the discrimination invariably needs to be eliminated.
The right to equality enshrined in the Directive Principles of State Policy which is part of the Constitution of India requires that the government looks into and rectify the anomalies expeditiously in order that the Cabinet preserves the sanctity of the democratic fabric of India by paying the bank employees and retired bankers, due wages and pension with timely revision. Unfair deal to bank employees is to be done away with in any parlance, in the wake of a further pay revision to Central Government and consequent pension increase. A prayer is humbly made to treat this letter as Public Interest Litigation Petition against the defiance of the subordinate legislation of the nation and deprival of the subjects of the sanctions of the Legislature, to call for records and to issue a writ of mandamus directing the parties concerned to comply with the statutes and regulations put in place by the Legislature.
Issues to be addressed:
1. In derogation of regulation 52 (1) of Pension Regulations, banks under the control of Ministry of Finance, GOI denied pension to retired employees from the date of retirement to an arbitrary date of 27.11.2009 irrespective of the date of retirement when the regulations stipulate the payment from the date of retirement on the basis of Joint Notes dated 27.04.2010.
2. In derogation of regulation 2 (j), 5 (3), 7 and 11 of Pension Regulations which make the banks, the sole contributor to Pension Fund, banks raised an unlawful contribution to Pension Fund from employees and retired employees on the basis of Joint Notes dated 27.04.2010.
3. The Joint Notes, which is in the nature of amending Pension Regulations and as such due procedure in law for amending the regulations as provided under sec 19 (1) and (4) have to be done. Vide regulation 19 (4) Joint Note has to run through the Houses of the Parliament as soon as it was made which requirement is laid down in Joint Note as conclusion 10 also and it is remaining undone albeit passage of five and a half years. The Joint Note has no force of law and is a farce, to be set aside.
4. The covenants in the Joint Note to deny pension from the date of retirement till 27.11.2009 and to raise the contribution prejudice what is earlier done under the relative regulations and attract prohibition from being framed pursuant to section 19 (1) and (4) of the Act.
5. In its Record Note dated 25.05.2015, IBA stated that issues of the retired will not be discussed with United Forum of Bank Unions (UFBU) as there is no contractual relationship for banks with retired and held that retirement benefits are welfare measures ( charity doled out by employer ) in sheer contempt of the dicta of the Apex Court that pension is deferred wages and an inalienable right earned by the employee through relentless service. After declaring that they will not discuss the issues of the retired, IBA and UFBU decided the issues of the retired in a manner axing the retired, sans their mandate.
6. Salary in banks ought to be brought at least on par with that of Central Government employees as rationalized in 1979 by appointing a Pay Commission for banks to ensure righteousness and to eliminate discrimination.
7. Pension of bank retirees was not revised with any of the Bipartite Settlements ever since its inception in derogation of regulation 56 of Pension Regulations though the scheme of pension was agreed to be on the lines of the Central Civil Pension while Central Civil Pension was revised with implementation of each Pay Commission Report, thus defeating the very purpose of pension and pushing the retired bankers to the netherworld.
I take privilege to further submit that while the labour organizations remained inert while IBA and banks denied fresh option for pension upon removal of the draconian clause from Pension Regulations, it was the solo battle I made with IBA, the government and banks as also with trade unions for about a decade till 2010 after taking voluntary retirement at the young age of 49 that had its culmination in IBA signing the Joint Note with UFBU on 27.04.2010, which redeemed the lost statutorily right to the bank employees. It is my earnest feeling that if the work of a common man could revive the shattered dream of about six lakhs of bank employees by restoring their statutory right which they had lost, the Judicature of the nation would be pleased to invoke the maxim FIAT JUSTITIA RUAT CAELUM to rescue the vast community numbering about 10 lakhs to get back what has been robbed by IBA and banks in derogation of the regulations and detained by banks which they can release without any loss to them.
I pertinently and respectfully submit further that the dicta dated 17.09.2014 of the Hon'ble High Court of Kerala in Writ Appeal No.937/2014 viz. State Bank of Travancore v. C M Paul and Ors. that the respondents are entitled to benefits of Pension Regulations, 1995 and of Voluntary Retirement Scheme, 2000, directing the Appellant to pay pension to them from their date of retirement shall be an eye opener to IBA and to government to act on its basis and to refrain from agitating other writ petitions in similar matter in various High Courts at the expense of public money in derogation of the National Litigation Policy giving trouble to judiciary and to the retired senior citizens who are in hapless condition.
Parties involved:
1. Ministry of Finance, Government of India, Jeevandeep Building, Sansad Marg, New Delhi – 110 001 represented by its Secretary (Banking).
2. The Secretary, Indian Banks' Association, World Trade Centre, Cuffe Parade, Mumbai – 400 005
Relevant provisions of law:
1. Constitution of India.
2. Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970.
3. Bank (Employees') Pension Regulations, 1995.
Dated at North Paravoor, this the 22nd day of November, 2015
Yours respectfully,
C N VENUGOPALAN
