Writ-Petition-Before-Madurai-Bench

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BEFORE THE MADURAI BENCH OF THE

MADRAS HIGH COURT

(SPECIAL ORIGINAL JURISDICTION)

W.P.(MD) NO. 6876 OF 2011 ADMITTED ON 29.06.2011

1. K. Venkatesan

S/o. G. Krishnamurthy

Aged about 52 years,

Spl. Assistant, Central Bank of India,

Kodambakkam Branch,

18/1, Maharaja Surya Road

Alwarpet, Chennai - 18

2. N. Viswanathan

S/o. S. Narayanamurthy

Aged about 54 years,

Officer, Central Bank of India,

Villupuram Branch,

New No.18/20, Dr. Ranga Road,

Mylapore, Chennai � 600 018

3. S. Nagarajan

S/o. V. Srinivasan

Aged about 61 years,

Officer (Retd.), Karur Vysya Bank Ltd,

6/2, Seetharam Manor

Rajaji Street, Ranga Nagar,

Srirangam, Trichy � 620 006

4. K. Mohan Doss

S/o. G. Krishnan,

Aged about 57 years,

Residing at No. 52, Ashok Nagar, 3^rd St.,

Kochadai, Madurai - 625016,

Working as Officer, Canara Bank,

WAM St. Br. Madurai.

5. G. Balakrishnan

S/o. P.Gurusamy,

Aged about 56 years,

Residing at No.AS 02, Porkudam Apartment,

Ram Nagar, By-pass Road, Madurai - 625016,

Working as Sr. Mgr., Canara Bank,

South Veli St., Madurai.

6. V.S. Muruganandham

S/o. V. Sethurajan,

Aged about 57 years,

Residing at No.13, DD road, II St., Arappalayam

Madurai-625016,

Working as Spl. Asst., Canara Bank, Paravai.

7. G. Kumaresan

S/o. Govindarajan,

Aged about 50 years,

Residing at �Laxmi Nivas�, 2805, TNHB, Villapuram,

Madurai-625011,

Working as Clerk, Canara Bank, Paravai.

8. M. Anthony Samy

S/o. D. Mariaraj,

Aged about 50 years,

Residing at No. 7/29, �Selvam Illam�, AIBEA Nagar,

A colony, Madurai-625402,

Working as Peon, Canara Bank, Paravai.

9. S. Ameer

S/o. Sulthan,

Aged about 53 years,

Residing at No. 67/21, Subramaniapuram Main Road, Vegetable market,Madurai-625011,

Working as Clerk, Canara Bank, Paravai.

10. M. Muthumani

S/o. M. Mookan,

Aged about 47 years,

Residing at No. 85, AIBEA Nagar, III St.,

A. Colony, Paravai,Madurai-625402,

Working as Officer, Canara Bank, Paravai.

11. V. R. Pragadeeswaran

S/o, V.R. Ramamoorthy,

Aged about 51 years,

Residing at No. 15 D/62, Alagarsamy Naidu I St.,

New Mahalipatty Road, Madurai-625001,

Working as Clerk, Canara Bank,

East Masi St., Madurai.

12. M.K. Surendran

S/o. M.S. Krishnamoorthy,

Aged about 51 years,

Residing at No. 184/14, New Ramnad Road,

Madurai-625009,

Working as Officer, Canara Bank,

East Masi St., Madurai.

13. S. Hariharan

S/o. S. Sattaiyappan,

Aged about 56 years,

Residing at No. 9-1-18, Allimalar St.,

Viswanathapuram, Madurai - 625014,

Working as Clerk, Canara Bank,

East Masi St., Madurai.

14. S. Alagarsamy,

S/o. G. Sankarapandi,

Aged about 49 years,

Residing at No. 13-10, Bharathiyar Nagar,

Vilangudi, Madurai - 625018,

Working as Manager, Canara Bank,

East Masi St., Madurai.

15. J. Thomas Ignacy Peeriz,

S/o. I. Joseph,

Aged about 57 years,

Residing at No. B 31, Shanthi Niketan,

Near Ambika Theater, Anna nagar,

Madurai-625020,

Working as Clerk, Canara Bank,

W.A.M. St., Madurai.

16. L.S.J. Shanthi,

W/o. J. Thomas,

Aged about 50 years,

Residing at No. B 31, Shanthi Niketan,

Near Ambika Theater, Anna Nagar,

Madurai - 625020,

Working as Clerk, Canara Bank,

South Veli St., Madurai.

17. V. Chellapandian

S/o. Vellaichamy,

Aged about 53 years,

Residing at Plot No. 37, Dr. No. 52,

S.B.O. Colony, V St. Doak Nagar,

Madurai - 625016,

Working as Clerk, Canara Bank,

Circle Office, Madurai.

18. D. Manohar Samuel,

S/o. K. Daniel Muthiah,

Aged about 57 years,

Residing at No. 11-10/29, Design Nagar,

S. Alangulam, Anaiyur P.O. Madurai-17,

Working as Sr. Mgr, Canara Bank,

A/c Section, Coimbatore.

19. V. Murugan

S/o. S. Veeraiah,

Aged about 57 years,

Residing at No. 3/421, Thilak Nagar, Madurai

Working as Officer, Canara Bank,

Corporation Br., Madurai.

20. M.D. Deepak

S/o. M.R. Devadoss,

Aged about 40 years,

Residing at No. 2 and 3/1, Nalla

Thanneer Kinatru Lane, S. Masi St.,

Madurai - 625001,

Working as Clerk, Canara Bank,

Gnanaolivupuram, Madurai.

21. T. Santhi Devi,

W/o. P. Somasekar,

Aged about 50 years,

Residing at No. 150/6, P.P. Chavadi,

P.P. Nagar, Madurai - 625016,

Working as Clerk, Canara Bank,

Gnanaolivupuram, Madurai.

22. Jeevanandham

S/o. V.V. Sennaiyan,

Aged about 50 years,

Residing at No. 4/32, Brindhavan St.,

Iyer Bungalow,Madurai - 625017,

Working as Clerk, Canara Bank,

Gnanaolivupuram, Madurai.

23. M. Maanvizhi,

W/o. G. Maris Kumar,

Aged about 53 years,

Residing at No. 78, Kamaraj II St.,

Pethaniyapuram, Madurai - 625016,

Working as Clerk, Canara Bank,

Gnanaolivupuram, Madurai.

24. K.S. Rekha,

W/o. P. Ilangovan,

Aged about 48 years,

Residing at No. 17/4, �NILA�, Santhya St.,

Duraisamy nagar, By-pass Road,

Madurai - 625016,

Working as Clerk, Canara Bank,

Gnanaolivupuram, Madurai.

25. K. Ganesan,

S/o. G. Karuppasamy,

Aged about 57 years,

Residing at No. 59, 6^th Cross St. Extn,

Krishnapuram Colony, Madurai - 625014,

Working as Officer, Canara Bank,

Gnanaolivupuram, Madurai.

26. S. Kanthimathi,

W/o. R. Rajaram,

Aged about 60 years,

Residing at No. 4/4/5, Shanthi Nagar New Colony,

Madurai - 625018,

Retired as Clerk, Canara Bank,

Gnanaolivupuram, Madurai.

27. S. Devaki,

W/o. R. Chelladurai,

Aged about 45 years,

Residing at No. C-10, Surya Tower,

Duraisamy Nagar, By-pass Road,

Madurai - 625016,

Working asClerk, Canara Bank,

Gnanaolivupuram, Madurai.

28. K. Ramaraj,

S/o. P. Karuppiah,

Aged about 55 years,

Residing at Nirmal Illam, No. 3/281,

Kavimani III cross St. North extn,

Indian Bank Colony, Narayanapuram,

Madurai - 625014,

Working as Officer, Canara Bank,

East Masi St., Madurai.

29. M.A. Eswaran,

S/o. P. Muthuramalingam,

Aged about 62 years,

Residing at No. 255/1, Panniyan Mayandi St.,

Moovendhar Nagar, BB Kulam, Madurai - 625002,

Retd. as Clerk, Canara Bank,

Currency Chest, Madurai.

30. R. Baskaran,

S/o. N. Ramasamy,

Aged about 64 years,

Residing at No. 16, State Bank Staff colony II,

Bye pass Road, Madurai - 625010,

Retd. as Manager, Canara Bank,

Grand Central Branch, Madurai.

31. P. Rajendran,

S/o. K. Pethu Reddiar,

Aged about 66 years,

Residing at No. 29, Bharathi St.,

K.K. Nagar, Madurai - 625020,

Retd. as Clerk, A/c Section,

Canara Bank, Madurai.

32. M. Kaleeswaran,

S/o. V. Mahalingam,

Aged about 57 years,

Residing at No. 2, IV St., Kamaraj Nagar,

Chinna Chokkikulam, Madurai - 625002,

Working as Spl. Asst., Union Bank,

Kochadai, Madurai.

33. A.R. Baskaran,

S/o. A.D. Ramamoorthy,

Aged about 47 years,

Residing at No. 57, V Main St., Karpaga Nagar,

Villapuram, Madurai - 625012,

Working as Clerk, Union Bank of India,

South Masi St., Madurai.

34. R. Bhama,

W/o. R Krishnasamy,

Aged about 54 years,

Residing at �Sri Gokulam�, No. 3, SBO Colony I St.,

Doak Nagar, Madurai - 625016,

Working as Officer, UCO Bank, Rajapalayam.

35. T.N. Kannan,

S/o. G. Narayanan,

Aged about 57 years,

Residing at No. 5/639-B, 19^th Street,

Bharathipuram, Karuppayurani,

Madurai - 625020,

Working as Clerk, Indian Bank,

Tallakulam, Madurai.

36. P. Gnanasekaran,

S/o. R.S. Pandirajan,

Aged about 56 years,

Residing at No.1, Rengasamy Servai Lane,

N. Avanimoola St., Madurai - 625001,

Working as Asst. Manager, Indian Bank,

Tallakulam, Madurai.

37. S. Balakrishnan,

S/o. Sivaiya Gowda,

Aged about 56 years,

Residing at No.G-109, B Block,

Sierra Syllable, 13^th Cross, Virupakshipura,

Bengaluru - 97,

Working as Officer, Indian Bank,

Tallakulam, Madurai.

38. T. Varadharaj,

S/o. K.R. Thiru Venkatasamy,

Aged about 56 years,

Residing at No. 59 G, Arumugam North St.,

Kamrajapuram, Thirumangalam,

Madurai Dt.,

Working as Officer, Indian Bank,

Tallakulam, Madurai.

39. N. Ramalingam,

S/o. M. Nagamalai,

Aged about 48 years,

Residing at No. 35A, Swarajayapuram, I St,

Sellur, Madurai-625002,

Working as Sub staff, Indian Bank, Tallakulam, Madurai.

40. A. Krishnammal,

W/o. N. Ramanathan,

Aged about 56 years,

Residing at No. 8-17/8, VOC St,

Viswanathapuram, Madurai - 625014,

Working as Clerk, Indian Bank, Tallakulam, Madurai.

41. A. Chermakani,

W/o. S. Muthurajan,

Aged about 55 years,

Residing at No. 4/705, Mahalakshmi Nagar,

4^th St, K.Pudur, Madurai - 625007,

Working as Clerk, Indian Bank, Tallakulam, Madurai.

42. S. Vasanthi,

W/o. R. Vasudevan,

Aged about 55 years,

Residing at No. 2/452, �Priyadharshini�,

Mahatma St, Gomathipuram,

Madurai - 625020,

Working as Clerk, Indian Bank, Tallakulam, Madurai.

43. D. Niraimathi,

W/o. V. Kaliswaran,

Aged about 53 years,

Residing at No. 31 A, Lakshmipuram, 7^th lane,

Madurai - 625001,

Working as Clerk, Indian Bank, Tallakulam, Madurai.

44. P. Manimegalai,

W/o. N. Gunasekaran,

Aged about 56 years,

Residing at No. 18, Periyar St, DRO colony Road,

K.Pudur, Madurai - 625007,

Working as Clerk, Indian Bank, Tallakulam, Madurai.

45. S. Thenmozhi,

D/o. N. Suruliraj,

Aged about 55 years,

Residing at No. 4/768, Mahalakshmi Nagar,

4^th St, Athikulam, K.Pudur, Madurai - 625007,

Working as Clerk, Indian Bank, Tallakulam, Madurai.

46. R. Sugumaran,

S/o. A. Raju,

Aged about 59 years,

Residing at No. 5/387, Kanagavel Nagar,

II St, Athikulam, Madurai - 625007,

Working as Clerk, Indian Bank, Tallakulam, Madurai.

47. R. Vijayalakshmi,

W/o. S. Ramasubramanian,

Aged about 56 years,

Residing at No. 43, Navalar Nagar, II St,

S.S. Colony, Madurai - 625010,

Working as Clerk, Indian Bank, Tallakulam, Madurai.

48. G. Hema,

W/o. T. G. Chandrasekaran,

Aged about 55 years,

Residing at No. 149/43, Ram Nagar, II St,

Bye pass Road, Madurai - 625010,

Working as Clerk, Indian Bank, Tallakulam, Madurai.

49. P. Sankaranarayanan,

S/o. S. Paramasivan,

Aged about 58 years,

Residing at No. C-58, Santhanam Road,

TVS Nagar, Madurai - 625003,

Working as Officer, Indian Bank, Madurai Main.

50. A. Seeni,

S/o. Akkini,

Aged about 62 years,

Residing at No.21, 3^rd St., Ahimsapuram,

Sellur, Madurai - 625002,

Retd. as Officer, Indian Bank, Tirunagar Branch, Madurai.

51. K. Arivalagan,

S/o. Kathirvel,

Aged about 54 years,

Residing at No. 5/441, Thiagi Rengasamy St.,

Angel Nagar, Athikulam, Madurai - 625007,

Working as Manager, Canara Bank,

Circle Office, Madurai. � Petitioners

-Vs.-

1. Union of India,

Rep by its Secretary,

Banking Division,

Ministry of Finance,

New Delhi - 110 001

2. Indian Banks Association,

Rep by its Chairman,

World Trade Centre, 6^th Floor, Centre - 1,

Cuffe Parade, Mumbai - 400 005

3. Canara Bank,

Rep by its Chairman and Managing Director,

Head Office, No. 112, J.C. Road,

Bangalore - 560 002.

4. Central Bank of India,

Rep by its Chairman and Managing Director,

Central Office, 16^th floor

Chandermukhi ,Nariman Point

Mumbai - 400 021

5. The Karur Vysya Bank Limited,

Rep by its Chairman and Managing Director

Central Office, Erode Road,

Karur - 639 001

6. Union Bank of India

Rep by its Chairman and Managing Director

Union Bank Bhavan, 3^rd floor

239 Vidhan sabha Marg Nariman Point

Mumbai - 400 021

7. United Commercial Bank

Rep by its Chairman and Managing Director

10, B T M Sarani, Calcutta - 700 001

8. Indian Bank

Rep by its Chairman and Managing Director

66, Rajaji Salai

Chennai - 600 001

9. All India Bank Employees Association,

(AIBEA), Rep by its General Secretary,

Singapore Plaza,

No.164, Linghi Chetry Street,

Chennai - 600 001.

10. National Confederation of Bank Employees (NCBE),

Rep by its General Secretary,

C/o.State Bank of India - LHO,

3^rd Floor, Bhadra, Lai Dharwaja,

Ahmedabad-380 001.

11. Bank Employees Federation of India (BEFI),

Rep by its General Secretary,

Naresh Paul Centre,

No.53, Radha Bazar Lane, (First Floor),

Kolkota - 700 001.

12. Indian National Bank Employees Federation (INBEF),

Rep by its General Secretary,

Bajaj Bhawan, I Floor, Nariman Point,

Mumbai - 400 021

13. National Organisation of Bank Workers (NOBW),

Rep. by its General Secretary,

Ram Naresh Bhawan, Tilak Gali,

Chuna Mandi, Pahar Ganj,

New Delhi � 110 055

14. All India Bank Officers� Confederation

Rep. by its General Secretary,

C/o State Bank Building,

St. Marks Road, Bengaluru � 560 001

15. All India Bank Officers� Association

Rep. by its General Secretary,

A.K. Naik Bhawan,

14, Second Line Beach,

Chennai � 600 001

16. Indian National Bank Officers� Congress,

Rep. by its General Secretary,

C/o Bank of Baroda,

No.3, Walchand Hirachand Marg,

Ballard Estate, Mumbai � 400 001

17. National Organisation of Bank Officers

Rep. by its General Secretary,

No.3, Natshatra Apartments,

Plot No.22, Sri Ram Society,

Warje, Pune � 411 058 � Respondents

AFFIDAVIT OF K. VENKATESAN

I, K. Venkatesan, son of late Sri. G. Krishnamurthy, Hindu, aged about 50 years, residing at 37/1, Maharaja Surya Road, Alwarpet, Chennai - 18, do hereby solemnly affirm and sincerely state as follows:-

1. I am the 1^st Petitioner in this Writ Petition herein and as such I am well acquainted with the facts and circumstances of the case. I am swearing this affidavit on my own behalf and on behalf of the other Petitioners herein as I have been duly authorized to do so.

2. I state that Petitioners are working as Clerk/Shroff, Officers, Sub-staff in various nationalized and scheduled banks.

3. I state that the 2^nd 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. I state 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.

4. I state that the present Writ Petition is being filed praying for the issue of a Writ of Declaration declaring Clause 32 of 9^th Bipartite Wage Settlement dated 27.04.2010 read with Clauses (1) and 2 of Pension Settlement dated 27.04.2010 insofar as the said clauses require contributory provident fund optees who are in service to become pension optees upon contributing 2.8 times of the revised Basic Pay Payable for the month of November 2007 to the pension fund and retired employees to refund in addition to their contribution with interest thereon an additional sum which amounts to 56% of the said amount of bank's contribution to Provident Fund and interest thereon received by the employee on retirement or death as arbitrary and violative of Articles 14, 16 and 21 of the Constitution and consequently direct the Respondent Banks to extend the pension option to the Petitioners without insisting on any contribution to the pension fund and to refund the amounts paid.

5. I state that the issue of employees� contribution to the pension came up for consideration even during the hearing of the Sastry Award. In para 414 of the Sastry Award the Hon�ble Tribunal has clearly observed that:

"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 Gratuity Fund is such that for some years to come 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 funds. This is no 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 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."

6. I state that from time to time the Indian Banks Association and various apex unions of the Bank employees enter into Bi-Partite Settlements in respect of terms and conditions of services including pension scheme for Bank employees.

7. I state that for the first time in the year 1993 the Indian Bank Association and the various apex unions of the Bank employees entered into a settlement on 29.10.1993 (herein after referred as Pension Settlement dated 29.0.1993) in respect of the Pension Scheme. It is pertinent to point out 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% of their Basic Pay.

8. I state 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. There was no provision that the employees' contribution to the Provident Fund would also be transferred to the Pension fund. Thus in the year 1993 when the pension scheme was introduced and persons were required to change from the Provident Fund Scheme to the Pension Scheme the workers were permitted to retain their portion of the provident fund and the Bank�s contribution alone was transferred to the Pension Fund. Even the retired workers who were extended the pension option were required to refund only that portion of the provident fund which was the Bank's contribution.

9. I state that after the Pension Settlement dated 29.10.1993, the Government of India issued a notification pursuant to which all the member Banks of the 2^nd 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, known as Bank Employees' Pension Regulations 1995, thereby making these pension regulations statutory in nature.

10. I state that 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 percent 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 dated 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 dated 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,"

11. I state 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 the Provident Fund account along with accrued interest thereon.

12. I state that Regulation 11 of the 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 31^st day of March, and make such additional annual contribution 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 31^st day March immediately following the financial year in which the Fund is constituted."

13. I state 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 in to the financial condition of the fund every financial year, on the 31^st 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.

14. I state that in pursuance of the Pension Settlement dated 29.10.1993 and the Pension Regulations, 1995 a number of employees opted for Pension and they became members of the Pension Scheme and they had to surrender only the Banks Contribution to the Provident Fund. As such the employees who opted for Pension in the year 1993 and 1995, no amount other than the Banks Contribution to P.F. Account along with accrued interest there on has been charged.

15. I state that initially when the pension scheme was introduced many workers did not opt for the pension scheme because of a penal clause in the pension regulations. As per clause 22(4) (b) of the said Pension Regulations, 1995 any interruption in the service of an employee due to participation in strike 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 fearing that they would stand to lose both pension and provident fund and they would be at the mercy of the Bank management. However, the said penal clause was ultimately removed as per the decision of Government of India communicated to member banks by the 2^nd respondent in the year 1998.

16. I state that subsequent to the introduction of Pension Regulations the bank employees had wage revisions during the years 1995, 2000 by way of bipartite settlements. During the 7^th Bipartite Settlement of the year 2000, the 2^ndrespondent 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 such contribution by the employees.

17. I state that during the 7^th Bipartite 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 16.50 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 forge a portion of their wage revision for building up this pension fund, as a result of the above act of the 2^nd respondent. Thus all employees irrespective of whether they were beneficiaries under the pension scheme contributed to the pension fund.

18. I state that similarly in the 8^th Bipartite 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 be seen that all the employees including the Provident fund optees who did not receive pension contributed to the increased cost of pension.

19. I state that after deletion of the penal clause stipulating forfeiture of past service resulting in disqualification to receive pension in the event of participation in strike, more employees were inclined to join the pension scheme. Further pursuant to the 7^th and 8^th Bi-partite settlements all employees including the PF optees were compulsorily made to contribute to the Pension Fund. In view of this the Provident fund optees felt that in all fairness since they were made to compulsorily to contribute to the Pension fund they were also entitled to receive pension. Thus all the employees who did not opt for pension earlier and various unions raised a demand for extending a second option to such employees as similar options were extended to the employees of Reserve Bank of India in the year 2000. Thereafter on 27.11.09 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 (2^nd option) to join the Pension Scheme to the remaining Bank employees. A record note of discussions signed on the same day specifically provided 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.

20. I state that thereafter on date 27.04.2010 the 2^nd respondent and different apex unions of the UFBU entered in to a Pension Settlement under provisions of the Industrial Disputes (Central) Act, 1947 in respect of extending 2^nd option of Pension to those employees who did not opt for Pension in the year 1993 / 1995 and had thus continued to remain a member of Contributory Provident Fund Scheme.

21. I state that Clauses 1 & 2 of the terms of the Pension settlement dated 27.04.2010 prescribed the terms on the basis of which the employees could opt for pension in respect of working employees as on the date of the settlement. Relevant provision of the terms of settlement is as follows:-

�(1) All workmen employees who 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 27^thApril 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 29^th September 1995 in case of Nationalised Banks / 26^th March 1996 in case of Associate Banks of State Bank of India and continue in the service of the bank on the date of this settlement:

(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.

In respect of the retired employees the pension option was extended as the following terms-

1 (a) were in service of the bank prior to 29^th September, 1995 in case of Nationalized Banks / 26^th March 1996 in case of Associate Banks of State Bank of India and retired after that date and prior to the date of this Settlement;

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

(c) refund within 30 days after expiry' of the said period of 60 days, the entire amount of the banks contribution to the Provident Fund and interest accrued thereon received by the employee on retirement together with his Share in contribution towards meeting 30% of Rs.31215 crores which is estimated and reckoned as the funding gap for those eligible under clause 2(ii), 2(iii) and 2 (iv) of this agreement. On an individual basis, the payment over and above the' bank's contribution to Provident Fund and interest thereon has been worked out at 56% of the said amount of bank's contribution to Provident Fund and interest thereon received by the employee on retirement. The family of those employees who were in the service of the bank prior to 29^th September 1995 in case of Nationalized Banks / 26^m March 1996 in case of Associate Banks of State Bank of India, but have died while in service of the bank after that date will be eligible for family pension, provided -

(a) the family of the deceased employee exercises an option in writing within 60 days of the offer to become a member of the Pension Fund and

(b) refund within 30 days after expiry of the said period of 60days mentioned above, the entire amount of the bank's contribution to the Provident Fund and interest accrued thereon received upon death of the employee together with his share in contribution towards meeting 30% of Rs.3115 crores which is estimated and reckoned as the funding gap for those eligible under Clause 2(11), 2(111) and 2(IV) of this agreement. On an individual basis, the payment over and above the bank's contribution to Provident Fund and interest thereon has been worked out at 56% of the said amount of bank's contribution to Provident Fund and interest thereon received on death of the employee.�

22. I state that thereafter on the same day i.e. 27.04.2010 the 2^nd respondent and different apex unions have entered in to another settlement hereinafter referred as 9^th Bipartite Settlement (9^th B.P.S.) and C1.32 of the 9^th B.P.S dated 27.04.2010 is as follows:

"32. Another option for Pension (in Banks other than State Bank of India) Workmen employees in the service of the bank as on 27^th April 2010 and who exercise their option to join the Pension Scheme in terms of the Settlement dated 27^th 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 2007.�

23. I submit that, in the Pension Settlement dated 27.04.2010 and in the 9^th B.P.S. dated 27.04.2010 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 9^th B.P.S. This is in addition to the transfer of the Banks" contribution to Provident Fund account along with interest accrued thereon. It is submitted that the above Clause 32 of the 9^lh Bi-partite wage settlement dated 27.04.2010 and clause (1) of Pension Settlement dated 27.04.2010 in so for 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 onwards to the Pension Fund is illegal and unjust for the following, among other

GROUNDS

a) It is submitted Clause 32 of the 9^th Bi-partite wage settlement dated 27.04.2010 and clause (1) of Pension Settlement dated 27.04.2010 in so for 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 onwards to the Pension Fund is arbitrary and violative of Articles 14, 16 and 21 of the Constitution.

b) It is submitted that in the Pension Settlement dated 29.10.1993 and Pension Regulations, 1995 .there was provision only for transfer of Bank's Contribution to Provident Fund Account along with accrued interest thereon and there was no .requirement of any contribution from the individual employees.

c) It is submitted that while in the earlier 7^th and 8^Ih Bipartite Settlement, 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. It is submitted 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 Article 14 and 16 of the Constitution of India.

d) It is submitted that even assuming that no further option is given for changing to 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 2^nd Respondent to bridge that gap by recovering exclusively from the existing Pension optees.

e) It is submitted that by virtue of the pension settlement dated 27.4.10 and the 9^th Bipartiate settlement dt 27/4/10 those employees who shall opt for pension scheme now shall have to transfer huge amount to the extent of Rs.60000/- to Rs.1.50 lakhs according to the category and designation from the arrears payable on Wage Revision said to take effect on account of 9^th B.P.S w.e.f. 01.11.2007 to 30.04.2010.

f) It is submitted that, if, for the purpose of comparison, we take the case of two identical employees in the same cadre with the same 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.60,000/- and Rs. 1,00,000/- to join the pension fund now, though ultimately both of them will be drawing the same amount of pension at their retirement. If giving option on different dates is the only reason for this disparity then such a classification is irrational, arbitrary and violative of article 14 of the Constitution.

g) It is submitted 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.

h) It is submitted 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 27.04.2010 and C1.32 of the 9^th B.P.S. dated 07.04.2010 is wholly illegal, unjust, arbitrary, discriminatory and against the Constitution of India.

i) It is pertinent to point out that Respondent No.12, Indian National Bank Employee's Federation (A Banking Wing of INTUC) has lodged protest vide its General Secretary's letter dated 27.04.2010 and has signed the 9^th B.P.S. under protest.

24. I state that it would not be out of place to mention that from time to time the Reserve Bank of India and Indian Railways have given fresh and 2^ndoption to join Pension Scheme to its employees and there was no provision for payment of any additional cost by the individual optees apart from employers' Contribution to Provident Fund account along with accrued interest. In the case of Railways, as a result of various improvements in the service conditions or implementation of the Pay Commission's recommendations etc fresh options to shift to the pension scheme were given to the staff to join the pension scheme as these improvements had bearing on the pensionary benefits. In all 12 such options were given.

25. I state that we 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 Bank�s 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 Art. 309 and Art. 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 27.04,2010 and Clause 32 of the 9^th B.P.S dated 27.04.2010 is not declared illegal and unconstitutional 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.

26. I state that it is held by the Hon'ble Supreme Court of India in many cases held 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.

27. I state that the action of the 2^nd Respondent is wholly illegal, unjust, arbitrary and discriminatory and is totally, contrary to the earlier agreed terms of sharing by all the employees, as per the minutes of the discussions recorded on 27.11.2009.

28. I state that we 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.

29. I state that we 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 different penal clause on strike", that the 2^nd 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.

30. I state that we 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 2^nd 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 2^nd Respondent have to be refunded to all such employees.

31. I state that by virtue of the impugned clause 32 of the 9^th Bi-partite settlement dated 27.04.2010 and paras 2 and 4 of the pension 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, 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 recovered by the Respondent Banks 3 to 8 in order to enable the respective members to exercise their option. The retired officials are required to refund in addition to their contribution and that of the bank with interest thereon an additional amount which amounts to 56% of the said amount of bank's contribution to Provident Fund and interest thereon received by the employee on retirement or death.

32. I state that since the last date for the exercise of the option was fixed, the Petitioners herein have given their consent and have also remitted the required amount 2.8 times of revised Basic pay of November, 2007 and the retired employees have refunded the provident fund amount with 56% interest. Further our exercise of the options to change over to the pension scheme should not be construed as either acquisance or waiver of our rights as the same was done in order to avail the pension scheme, though the condition stipulated for availing the same was onerous.

33. I state that we have not filed any other Writ Petition before this Hon'ble Court or before the Principal Bench of this Hon�ble Court for the present relief and this is the first writ petition.

For the foregoing among other reasons, it is humbly prayed that this Hon'ble Court may be pleased to issue a WRIT OF DECLARATION declaring Clause 32 of 9^th Bipartite Wage Settlement dated 27.04.2010 read with clause (1) and 2 of Pension Settlement dated 27.04,2010 insofar as the said clauses require contributory provident fund Optees who are in service to become pension optees upon contributing 2.8 times of the revised payable for the month of November 2007 to the pension fund and retired employees to refund in addition to their contribution and the Bank's contribution with interest thereon an additional amount which amounts to 56% of the said amount of bank's contribution to Provident Fund and interest thereon recovered from the employee on retirement or death as arbitrary and violative of Articles 14, 16 and 21 of the Constitution and consequently direct the Respondents 3 to 8 to extend the pension option to the Petitioners without insisting on any contribution to the Pension Fund and to refund the amounts paid and pass such other or further orders as this Hon'ble Court may deem fit and proper and thus render justice.

Solemnly affirmed at Chennai on this )

on this the 23^rd day of April, 2011 )

and signed his name in my presence ) BEFORE ME,

M/s. K.M. RAMESH

K.G. VIPRA NARAYANAN

T. VENKATESH KUMAR &

R. SANDHYA

ADVOCATES FOR PETITIONERS