Glimpses of Legal Battle of the AIRRBEA on Pension Parity as well
as Pay Parity
Dated 25-06-2014 By Abdul Sayeed
Most
of our retired friends and hundreds of those at the fag end of their service in
the RRB sector, are very much agitated and anxious on the fate of final outcome
of the legal battle out of SLP (C) No. 39288 of 2012 filed by the DFS , MOF, Government of India against the final
judgement and order dated 23.08.2012 passed by the Hon’ble High Court of
judicature for Rajasthan at Jodhpur in DB Civil Special Appeal (W) no. 2021 of
2011. Incidentally this appeal was also filed by the DFS ,
MOF, GOI against the order of the single Bench of the said Hon’ble Court,
Jodhpur dated 15-09-2011 in
the WP No. 4366 of 2005 filed by Gramin Bank Pensioners Samity and Krishna
Pareek (Vs Union of India), where AIRRBEA was allowed to participate as
impleading petitioner. Naturally the AIRRBEA leadership had to play the leading
role with engagement of Senior Lawyer and putting the entire matter of
arguments as was done in the matter of WP filed by the AIRRBEA before the
Karnataka High Court and disposed of by the Hon’ble Single Bench on 22.03.2011
in WP No.20034/2003.
This
is the tip of ice berg while dealing with the history of legal battle on Parity
issue both relating to Pension and also Pay Structure, success of which through
the NIT Award dated 30.04.1990/Hon’ble Supreme Court orders could be achieved
under the stewardship of the AIRRBEA and led us to move for the Parity of
Pension and our struggles that followed.
We
recall with deep sense of gratitude and respect the contribution and the strong
conviction of our beloved deceased leader Dilip Kumar
Mukherjee
Pension Parity –Pending before the Hon’ble Supreme Court of India
Let
it start with the mention of events taking place recently on Pension Parity Case
i.e. from the stage GOI knocked the door of the Supreme Court against High
Court (DB) order after successive orders of the Hon’ble Karnataka High Court,
Hon’ble Rajasthan High Court (both Single Bench and Division Bench), Jodhpur,
as may be indicated in a very abridged form:
i.
SLP (C)
No.39288 of 2012 (arising from final judgement and order dated 23-08-2012
passed by the Hon’ble Rajasthan High Court at Jodhpur in DB Civil Special
Appeal (W) No.2021 of 2011), filed by the Government of India (DFS , MOF) to create confusion and to delay/deny the
Pension Parity to RRB Staff.
ii.
WP (CIVIL)
No. 210/2013 – SMGBOF & Ors... Vs...Union of India & another filed by
the AIRRBEA unit in SMGB (Kerala) to ensure full participation of the AIRRBEA
to protect the interest of RRB Staff while contesting the above said SLP filed
by the GOI.
Following orders/dates before the
Supreme Court are worth mentioning –
· On 18-02-2013, the
Bench of Justice P Sathasivam & Justice J S Khehar passed the order to ISSUE NOTICE.
· On 26-04-2013, the Supreme
Court tagged WP No.210 of 2013 (SMGBOF & other Vs Union of India) with SLP
(C) No.39288/2012.
· On 20-05-2013 Hon’ble Court
PENSION CASE IN SUPREME COURT
–developments in brief till mid June, 2014:
As we reported in our last CC Meeting
held on 08-06-2014
at New Delhi,
It may be recalled that the case was listed for 29th April 2014 after some time when the matter was listed twice by this time, but hearing could not take place, particularly after submission of the affidavit by the Government of India on05-07-2013
stating that GOI is ready to implement the Pension Scheme with stipulation that
–
It may be recalled that the case was listed for 29th April 2014 after some time when the matter was listed twice by this time, but hearing could not take place, particularly after submission of the affidavit by the Government of India on
-
For the present only profit making RRBs
will be allowed to pay pension out of its profit utilizing only 25% of net
profit and this amount should be more than 1/8th of the amortization
amount for the corpus required for the RRB. Rest RRBs will be allowed only when
they wipe out the accumulated loss and go by the above norm.
-
Employees will have to contribute 30% of the total fund required
for the RRB to implement the scheme
-
Effective date of release of Pension will be 01-04-2012
Since the AIRRBEA could not bow down to
the conditionalties, we had to take the matter to our Advocates for effective
opposition and remedy.
We
approached the Hon'ble Chief Justice through our Senior Advocate for early
hearing on priority basis, on 18th February, 2014 Hon’ble Chief
Justice allowed the same and passed his order to that effect. Accordingly, the
matter was listed in March, 2014, but it did not reach for hearing as the
Hon’ble Justice J S Khehar did not sit for the Bench, and thereafter the case
was not listed as the Bench headed by Hon'ble Justice Khehar was not sitting.
Now, as per the website, our case is listed for 9th September 2014.
As stated earlier, our members, particularly retired staff are very much frustrated with the postponement of date of hearing. We can very well understand their anguish and AIRRBEA leadership is also very much anxious to get the case disposed of as early as possible. We must not forget that AIRRBEA is the only body who went before Hon’ble Chief Justice twice for early hearing on priority basis and is once again prepared to approach the Chief Justice after 29th June, 2014 when the Supreme Court resumes after summer vacation. We are hopeful of pre ponement of the case to July, 2014 as per the opinion of our advocate. We are continuing with the legacy of DADA with the same advocates - Sri Ananth Raman and Sri CK Sasi, also the same legal team – Comrades HN Rao, KG Madanan and Ganapathi Hegde besides other principal office bearers like Com SV Reddy, Com SK Dwivedi, Com C Rajeevan, Com Sagun Shukla, Com A Sayeed Khan, who are regularly monitoring the case.
Karnataka High Court
i.
AIRRBEA filed the Writ Petition No.
20034/2003 with claim of Parity of Pension and other allowances including
Computer Increment before the Karnataka High Court, Bangalore – judgement was
delivered on 22.03.2011 directing the GOI to frame the scheme of Pension for
RRB staff at par with the scheme available in Banking Industry and also to pay
the Computer Increment as paid in Commercial Bank, in terms of Settlement dated
29.10.1993.
ii.
Writ Appeal Nos. 5674/2011 and 6824 –
25/2012 (S – RES ) & Misc. W.
8169/2011 were filed by Union of India/others against the orders passed by the
Single Bench of the Karnataka High Court in the Writ Petition No. 20034/2003 (S
- Res) dated 22-03-2011.
iii.
Writ Appeal of the GOI was dismissed on
31-01-2014 by the Division Bench of the Hon’ble Mr. Justice N K Patil and
Hon’ble Mrs. Justice Rathna Kala.
iv.
Reportedly the Government of India has
filed another appeal recently before the Hon’ble Karnataka High Court for
restoration of their appeal as the same was dismissed on 31-01-2014 on
technical grounds. We are alert on the issue.
We highlight the case in Karnataka High court: -
In
2003, when all our efforts through negotiations on Parity of Pension with the
GOI failed, the AIRRBEA leadership had no other alternative but to move the
judiciary to get the relief and filed the WP stated above before the Karnataka
High Court. Subsequently other apex organizations in RRBs and some individuals
also moved other High Courts.
Historic Judgement in the High Court of
Karnataka in Bangalore delivered on 22nd March, 2011 in the WP no. 20034 of
2003 (S-RES ) –
Between – i. AIRRBEA ii. KM Gurumurthy Ganapati
Hegde
&
i. Union of India
In this case (WP No. 20034/2003), Hon’ble Court
“hence the Respondents are directed to
take steps to ensure that the modalities are worked out for a Pension Scheme in
line with the Pension Scheme formulated for the employees of the Sponsor Banks
in terms of the memorandum of the settlement dated 29-10-1993 at Annexure – E
to the WP with such changes as would be appropriate and keeping in line with
the present circumstances.”
We must remember the great
contributions made by leadership of our Karnataka State Federation and our
Senior Advocate Sri P S Raja Gopal and his associate Advocates, and we convey
our thanks and gratitude to all of them.
This judgement was challenged by the
Government of India but the appeal has been dismissed on technical grounds as
mentioned in the write up elsewhere
|
It may be recalled that NABARD, Mumbai took all such Court cases
filed before different High Courts by different associations and individuals
to the Hon’ble Supreme Court for adjudication, but Hon’ble Supreme Court
passed an order on 26-08-2010 refusing to admit all such cases and sent them
back to the respective original High Courts. As such our case came back to
Karnataka High Court and it came for final judgement on 22-03-2011 (The
petition was heard and reserved on
|
Mention may be made that due to constant follow up and
pressure created by the AIRRBEA exemption was allowed to RRBs from the EPF
& MP Act, 1952 subject to better Scheme of Pension to be made in RRBs as
per provision of the said Act, vide Office Memorandum No. S – 35025/4/2011. SS.II,
Ministry of Labour and Employment, Social Security, - II Section, dated 6th
May, 2011. Such exemption has helped taking decision for Pension Parity by the
Government of India at par with Commercial Bank employees.
Case before the Rajasthan High Court, Jodhpur
Though the WP was filed by the GB
Pensioners Samity, the AIRRBEA took all measures to take the proceedings to the
logical end through all its efforts as impleading petitioner. The order of the
Single Bench came on 15-09-2011 (WP No.4366 of 2005).
Division Bench Civil Special Appeal No.
2021 of 2011 filed by GOI in the Rajasthan High Court – Against the judgment
and order dated 15-09-2011 passed by the single judge of Rajasthan High Court,
Jodhpur, in the WP no.4366 of 2005 – Gramin Bank Pensioners Samity and Krishna
Pareek Vs. Union of India. This Appeal was disposed of on 23-08-2012 and after
this Government of India filed SLP (C) No.39288/2012 before the Supreme Court.
Background of Pension Case on getting the achievement of Pay parity through Supreme Court and
the NIT – a small resume: -
While
giving below the resume, we must recall the historic struggles launched by the
AIRRBEA from time to time since inception of the AIRRBEA under the able
leadership of Com Ashis Sen, Com Dada Mukherjee (our beloved leader Dilip Kumar
Mukherjee), Com Ajit Ghosh, Com PSM Rao and many others, all of whom cannot be
named here for the long list, and the series of achievements in the matter of
recognition of posts of Messengers, achieving trade union rights, framing of
service rules, and many others that led the RRBs staff to be treated as part of
the Bank Employees. On the issue of equal pay for equal job, AIRRBEA had series
of persuasions and agitations at the initial years but GOI did not pay heed to
the same.
§ AIRRBEA
had to move Hon’ble Supreme Court with basic demand of “Equal pay for Equal Job
depending on the industry cum region formula – WP no. 132/84 G S Kaushik &
Another .. Vs …Union of India 01-09-1987 , when the Hon’ble
Supreme Court Passed the order for establishment of the NIT (National
Industrial Tribunal).
§ NIT
was formed on 25-11-1987 by the GOI notification.
§ The
NIT pronounced its award on 30-04-1990.
§ The
NIT award was implemented by the GOI order dated 22-02-1991 along with the
Equation Committee Report dated 16-01-1991 effective from 01-09-1987 .
§ AIRRBEA
had to move the Hon’ble Supreme Court in 1992 for removal of anomalies in
pay-fitment and payment of Arrears and the matter ended with the Court’s order dated
12-04-1996 .
§ AIRRBEA
again had to go before the Hon’ble Supreme Court during 1999 – 2001 and again
during the years 2001-2002 under the following circumstances –
-
6th Bipartite Wage revision
effective from 01-11-1992
was denied to RRB Staff.
-
RBI
appointed Mohalik Committee in 1997 at the instance of the GOI on salary and
allowances of RRB staff. The committee recommended that the RRB staff are not
entitled to Parity of Pay Scales and other benefits with the Sponsor Banks’
staff and prescribed separate sets of pay scales which were elusive and looked
slightly better at that point of time. Some associations even welcomed the
Mohalik Pay Scales but our leadership stood firm and did not fall into the trap
of the GoI proposals to distort the Parity Benefits flowing from the NIT Award.
-
AIRRBEA challenged this step of the
RBI/GOI and filed WP No.17905/1997 in the Karnataka High Court.
-
Hon’ble
Court 11-11-1998
quashed the appointment of the Mohalik Committee and its Report and directed
the Central Government to allow pay parity w.e.f. 01-11-1992 as per the Bipartite
settlement in Banking Industry, which was not implemented in RRBs
§ In
the meantime Co-ordination committee of the employees and officers unions of
SMGB (Kerala) filed WP No. O.P.No.1871/1997 before the High Court of Kerala
seeking similar relief as in the aforesaid WP before the Karnataka High Court.
§ Learned
Single Judge (Kerala High Court) allowed the WP and an appeal filed by the
Management against the Single Judge Order was dismissed by a Division Bench of
the Kerala High Court by an order dated 25-11-1998.
§ The
management carried this matter by way of a SLP before the Supreme Court. The
AIRRBEA was permitted to intervene in the SLP and the said petition was
ultimately disposed of by an order of the Supreme Court dated 31-01-2001
confirming the findings of the Kerala High Court and the Karnataka High Court
as well to the extent that the employees of RRBs are entitled to Parity of the wages
of the corresponding employees of the Sponsor Banks and are also entitled to
identical wage revision as and when effected in Sponsor Banks.
§ The
Apex Court 01-11-1997 as per 7th
Bipartite Settlement that was implemented by this time in Commercial Banks.
§ The
GOI issued order on 11-04-2001
to effect this order of the Hon’ble Supreme Court, imposed several restrictions
which virtually denied the Parity, in total negation of the direction of the Apex Court/NIT 11-04-2001
– Sponsor Banks were directed to negotiate with respective RRBs on other
allowances to be payable w.e.f 01-04-2000 .
§ AIRRBEA
had to take shelter of the Supreme Court again by filing Contempt Petition
against the order of the GOI dated 25-04-2001.
§ The
Supreme Court disposed of this Contempt Petition by an order dated 07-03-2002 and
it was clarified by this Apex Court that the GOI cannot now go back from its
earlier stand of accepting the NIT Award, and as at present GOI cannot be held
to be in compliance with the Judgement and directions of this Court in Civil
Appeal No.2218 of 1999.
§ After
this the Government of India passed a fresh order dated 17-04-2002 where again
the HRA was payable prospectively from 11-04-2001 and other allowances were to be paid
prospectively with direction that Sponsor Banks should revise other allowances
after negotiations with RRB employees.
§ Till
this time AIRRBEA leadership had to concentrate mainly on salary revision
benefits which were denied to the RRB staff w.e.f. 01-11-1992 , i.e. effective date of the 6th
Bipartite, though the settlement (6th BP) was signed in 1995.
PENSION BENEFIT CAME
TO PICTURE in Banking Industry in 1993
§ On
29-10-1993 there was a settlement in Banking Industry through which Pension was introduced as a retirement
benefit in lieu of CPF , effective
from 01-01-1986
with actual payment of pension being made from 01-11-1993 and the same were given
effect to by the Pension Regulations notified by the Sponsor Banks on
29-09-1995. But the GOI did not extend this to RRBs.
§ This
action of denial of Pension was taken up with the Government of India/NABARD
several times by the AIRRBEA when the dispute relating to wage structure/salary
revision remained in the Court since 1997 till 07-03-2002 .
§ AIRRBEA,
having exhausted all avenues of dialogue for extension of Pension Parity to the
RRB staff, had no other alternative but to challenge this denial before the
judiciary and ultimately challenged before the Hon’ble Karnataka High Court with
the issue of Pension Parity along with the demand of Computer Increment and
other allowances through the WP no. 20034 of 2003 as it considered that the
denial of the above was arbitrary and unjust, and contrary to the Award of the
NIT as well as the Law declared by the Hon’ble Karnataka High Court as also the
Apex Court, and such action of the Government therefore contravened Article –
14, 16 (1) 39 (D) and 43 of the Constitution of India.
§ The
Karnataka high Court also took note of the fact that along with large no. of
Petitions filed before this court, AKGBEF was one of them who filed a petition
seeking declaration that provisions of EPF and MP Ordinance 1995 as illegal and
unconstitutional in the WPs No. WP 7907 – 7911 and 7913 of 1996 ad connected
petitions decided by a DB of this Court on 17-11-1997.
§ Ordinance
13/1995 wide Sections 5&6A and 6B were substituted dealing with the
Employees’ Pension Scheme. The Ordinance was replaced by a Central Act
No.25/1996 w.e.f. from 16-11-1995 that was also the Subject matter of challenge
in those petitions.
§ The
Court also noted the negative stand of NABARD vide Circular no.34/100-04-2003
dated 30-01-2003 on release of Computer Increment and its legality.
§ Hon’ble
Karnataka High Court considering all the above matters delivered its historic
judgment on 22-03-2011 allowing both Pension Parity as well as COMPUTER
INCREMENT to the RRB staff in line with those available in Commercial Banks.
COMPUTER INCREMENT in
Hon’ble Patna
It may be recalled that before this order of the Hon’ble Karnataka HC,
there was clear order of the Hon’ble Patna High Court passed on 18.11.2010 in
the matter of WP filed by AIRRBEA unit in Madhya Bihar Gramin Bank – WP no.CWJC
18421/2010. Hon’ble Patna High Court directed that – “ Accordingly, I direct
the petitioners to invite the attention of the Secretary, Finance, Department
of Economic Affairs (Banking Division), New Delhi, respondent no. 1 towards the
aforesaid illegal decision taken by the NABARD dated 30.01.2003, Annexure 14,
not to pay Computer Increment to the employees of the RRBs.”
4. All these facts
were taken by the AIRRBEA under leadership of our beloved DADA to all
authorities including to the forum of JCC .
As per decision of the second meeting
of the JCC held on 26-05-2010,
chaired by the Chairman, NABARD, the matter has been forwarded by NABARD on 08th
July, 2010 to the GOI for exemption of RRBs from the purview of the EPF and the
MP Act and framing a fresh Pension Scheme on lines of Commercial Banks. (Ref – ATR submitted by NABARD at the 3rd
meeting of JCC held on 01-02-2011 ).
5. Pension Case before Hon’ble Rajasthan
High Court - I am not going to detail out the matters relating
to the judgment of Hon’ble Rajasthan High Court, Jodhpur, order dated
15-09-2011 by the Single Judge and also the order dated 23-08-2012 by the
Division Bench as referred to in the first part of this write up due to the
reason that the Judgment of the Hon’ble Rajasthan High Court has clearly
indicated that the Court is fully at one with the Judgment of the Hon’ble
Karnataka High Court dated 22-03-2011.
Now let
us wait for the disposal of SLP filed by the Government of India before the
Hon’ble Supreme Court.
Of course
we have put up our memorandum recently to the Hon’ble Prime Minister, Hon’ble
Finance Minister, Hon’ble Labour Minister of the new Government at New Delhi,
and also to the good number of Hon’ble Members of Parliament elected to the 16th
Lok Sabha urging upon them to see that the SLP filed by the Department of
Financial Services, Ministry of Finance under instructions of the previous
Government may be withdrawn at the earliest to give relief to the retired staff
and their families who are under tremendous hardship due to non – availability
of pension at par with those available in Banking Industry.
Very important points to
remember on Parity of Pension - Vital Features
i.
Hon’ble Supreme
Court directed on 12.05.2006 that:-
“Pension, as is
well known, is not a bounty. It is treated to be a deferred salary.
It is akin to right of property. It is co-related and has a nexus with the salary
payable to the employees as on the date of retirement”.
ii.
Decision of Hon’ble Supreme Court (Civil Appeal No. 2218 of 1999 with
C.A. No. 2219 of 1999 and T.P. (Civil) No. 403 of 1999 D/-31.01.2001)
On capacity to pay
in case of RRB
“The financial condition of the Regional Rural Banks
is not a relevant consideration for the Central Govt. in determining the pay
structure of the employees of the Regional Rural banks. Under the Regional
Rural Banks Act while conferring power
upon the Central Govt. to determine the pay structure of the employees of the
Regional Rural Banks, there has been no whisper that the financial
condition of the bank or capacity of the employer to pay, would be a germane
consideration. Moreover the question whether the financial viability would be
the sole criterion in deciding the wage structure of the RRB employees was
considered by the National Industrial Tribunal and the conclusion of the
Tribunal has become final, the award in question not having been assailed and on the other
hand having been implemented. In the aforesaid premises, it is a futile attempt
on the part of the employer as well as the Union of India
iii. A) Joint consultative Council for Regional Rural Banks
“At the instance of GOI, NABARD
submitted a concept paper on JCC
on 8th Aug, 2008 to GOI. Finally GOI, in terms of their letter F.
No. 2/1/2008 -09
– RRB dt. 5th February, 2009 advised NABARD to set up a Joint Consultative
Council (JCC ) for RRBs comprising
representatives from NABARD, Sponsor Banks (2), and State Govt. representatives
(2) who will have discussions with the National Level Unions/ Associations in
RRBs.
B)
The action taken report on the decisions taken in second meeting of JCC held on 26th May, 2011 is indicated
below.
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Sl. No.
|
Decisions of Second
Meeting
|
Action taken
|
|
3
|
Exemption of RRBs from
Employees PF and Misc. Provision Act, 1952 and framing a fresh pension
scheme on lines of Commercial Banks.
|
Matters referred to G.O.I vide our letter No. 615 dt. 8th
July, 2010
|
iv.
The
proceedings is given below, recorded
in the meeting convened by GOI with Sponsor Banks at Delhi
“So far as
grant of pension to employees of RRBs at par with Nationalized Banks is
concerned, it was informed to the Sponsor Banks that in order to take a view in
the matter, an Actuary was appointed by NABARD to calculate financial
implication. Actuary has submitted its report. The matter is being examined in
consultation with Ministry of Labour. The banks were also informed that the
cost of pension scheme will have to be shared by the stakeholders of the RRBs
i.e. Central Govt. (50%) Sponsor Bank (35%) and State Govt. (15%). The banks
were of the view that in case of Nationalized Banks the employees has
contributed to the pension fund; therefore the employees of RRBs should also
contribute”.
v.
Judgment of Hon’ble Karnataka High Court followed by similar Judgment by Hon’ble Rajasthan High Court on 22nd
day of March 2011 Before Writ Petition No. 20034 of 2003(S-RES )
“ It cannot be said that the endeavor undertaken by
the National Industrial tribunal and the opinions expresses by the Supreme
Court was to be restricted to bringing about parity in the pay, allowances and
other benefits of the employees of RRBs on par with the employees of the
Sponsor Banks. It necessarily would include pensioners’ benefit as well” ………… “It
would be necessary for this court to direct the Central Govt. to pass
appropriate orders in order to set right the anomaly pertaining to the
retirement benefits, availed by the RRBs vis-à-vis the employees of the Sponsor
Banks. It would certainly be justified if the RRBs are exempted from the
provision of the Employees Provident Fund Act, 1952 to bring about parity in
pension and other benefits. The effort of the National Industrial Tribunal and
the repeated directions of the apex court would not be completely implemented
unless this is also carried out”.
vi.
Recommendation of Dr.
Chakrabarty Committee
“The
Committee also noted that a review of the existing PF/Pension Scheme is being
done. As per advice of the GOI, NABARD has appointed an Actuary for assessing
the requirement and financial gap, if any. The assessment is underway and
hence, the committee has not made any assessment in this regard. The gratuity
amounts may also undergo a change in future.”
The
message of this Committee is loud and clear that not only the arrear of wages
due to revised salary structure, but also the amount of superannuation benefits
will have to be considered while assessing the capital support for attaining
the desired level of CRAR by the stipulated period. This committee could not
assess the load due to parity of pension since the actuary at that point of
time could not submit their figures for pension liability.
The whole
gamut of the Legal Battle/struggles in the RRB sector under the aegis/ banner
of the AIRRBEA, stretched over the last three decades since 1983-84, can hardly
be picturised in few pages and it will be much voluminous if details are
recorded at a place with versions of the orders/documents/names etc.
We
congratulate all our other Lawyers, friends and comrade members stationed at
different centres of this vast country who have come forward to help and intensify
the sustained legal battle/struggles, carried forward by the AIRRBEA.
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