A Note on 100% Neutralization in Dearness
Relief for Retirees prior to 01.11.2002
·
8th Bipartite Settlement was signed in May 2005 for the
period 01.11.2002 to 31.10.2007 which provided for 100% Dearness Allowance to
staff in service and 100% Dearness Relief to retirees after 01.11.2002 with
effect from 01.02.2005.
·
The employees who retied prior to 31.10.2002 are covered under three
Bipartite Settlement i.e. retired before 01.11.92; retired after 01.11.92 to
31.10.97, and retired after 01.11.97 (for award staff) & 01.04.98 (for
officers) i.e. 5th, 6th, & 7th Bipartite
Settlements respectively.
·
The retirees prior to 01.11.2002 continue to get Dearness Relief on
tapering basis whereby their basic pension is split into four parts. The first slab of basic pay portion gets
dearness relief @100% compensation while 4th slab of basic pension
gets compensated by dearness relief @25% only.
·
Uniformly for all the three settlements, D.A. Neutralization formula is
practically same reducing from 100% in the initial stage to 25% in the last
stage.
·
As a result these retirees are incurring huge monetary loss every month
ranging between Rs.1500/- to Rs.5000/- + and thus they are not fully
compensated for the ever increasing price rise, as prices of all commodities
are same for those who retired prior to and after 01.11.2002.
·
The Supreme Court judgment in D. S. Nakara case (1983) clearly lays down
that the date of retirement cannot be valid criteria for classification and
giving benefits only to one section of the entire class and denying it to other
section of the same class.
Legal Aspects :
This anomaly was brought to the knowledge of Bank Managements
/ IBA. As there was no response, a batch
of writ petitions was filed in Madras High Court by retirees from Canara Bank,
Bank of Baroda, Indian Overseas Bank.
[WP 50000/2006, 50001/2006, 50002/2006, 3198/2007, 9952/2007, 14983/2007
and 6632/2007] On 14.12.2012 single
judge from Madras High Court passed order that petitioners who are retirees
prior to 01.11.2002 are eligible for 100% neutralization in Dearness Relief as
the similar benefit is granted to retirees after 01.11.2002.
The Canara Bank and Indian
Overseas Bank had gone in appeal against above decision before Divn. Bench of
Madras High Court and on 17.06.13 the decision was awarded in favour of these
banks. The observations of Divn. Bench
are as under –
1. The benefits arising out of wage revision
under 8th BPS w.e.f. 01.11.2002 towards Dearness Relief at 100%
neutralization cannot be granted to employees retired in the period of earlier
BPS i.e. 7th BPS because retirees prior to 01.11.2002 and retirees
after 01.11.2002 cannot be said to be
‘similarly placed’.
2. Banks have pleaded that if 100% D.A.
Neutralization demand to pre-November 2002 retirees is considered favourably
during 10th BPS Negotiations – there will be considerable financial burden which will have to be carved out from
wage increase package meant for staff in service.
3. Pension of petitioners is out of settlement and not on account of statutory
right.
4. With the help of case law the court has put
up that prescription of cutoff date for giving benefits cannot be considered as
arbitrary and irrational.
5. When two sets of employees of the same rank
retire at different points of time, one set cannot claim the benefit extended
to the other set on the ground that they are ‘similarly situated’ and though they are retired with the same
rank, they are not of the same class or homogenous group and hence article 14 of the Constitution of India has
no application.
(Article 14 – refers to
equality before Law).
Aggrieved by above decision
– Canara Bank
·
Petitioner Shri A. B. Kasturirangan & others have filed special
leave petition No.28220/28221 of 2013 which stands admitted on 16.9.2013 in
Supreme Court. It indicates that there
exists constitutional or legal issue that was not properly interpreted in above
two judgments of Madras High Court.
·
Bank of Maharashtra Retired Employees Welfare Organization and its seven
members have filed Writ Petition No.
8564/2011 in Mumbai High Court against IBA, UFBU Constituents / Union of
India and Bank of Maharashtra. The
affidavit was submitted and case was admitted on 04.09.2013 after submission of
data to court to support that pension
fund of BOM has enough surplus to pay Dearness Relief with 100% neutralization
to all those retired before 01.11.2002. The Pension Fund data was obtained under
RTI Act 2005. The steps will be initiated soon to file intervening
application in Supreme Court in reference to above S.L.P.
·
Dearness Relief issue of
Bank Pensioners - Historical Account :
Pension Scheme in Banks was introduced consequent
upon signing of Memorandum of Settlement between AIBEA & IBA dt.
29.10.1993. Clause Six of Memorandum of Settlement was as
under –
‘Dearness Relief to pensioners will be granted at such rate as may be
determined from time to time in line with D.A. formula in operation in RBI’.
This provision is unambiguous.
Most surprisingly this clause was not incorporated in Bank Employees’
Pension Regulations 1995. As a result
more than 2.00 lakh pre-November 2002 retirees have been deprived of 100% D.A.
Neutralization – thereby forcing them to incur recurring monetary loss.
·
Writ Petition No. (C) 1931/2002 in Delhi High Court
:
Petitioner Premavati Bagga and Others V/S SBI / GOI –
Issue - Retirees in SBI before 01.11.93 are said to have
lesser pension than those who have retired after 01.11.93. As the SBI Management raised the issue of
financial burden the court has directed SBI to procure details of total corpus
available for pension fund, how the same is invested and what is average rate
of return for entire corpus of the pension fund for last 10 years. The Bank has submitted relevant data. Next date of hearing is 09.01.2014.
·
WP No. 184/2011 about re-fixation of pension stands transferred to Delhi High Court
from Supreme Court. The petition is
filed by Federation State Bank of India and others against Government of India
and others as respondents. Supreme Court
has given a opinion on 27.02.2013 that
the pension payable to the employees retired prior to 01.11.2007 be equivalent
to the pension payable to retirees who have retired subsequent to 01.11.2007. In this respect if there are any deficiencies
in pension regulations and service conditions then it is a part of service
conditions of that Bank. Hence the
subject of Writ Petition does not come under the purview of Supreme Court as
per section 32 of the Constitution of India and it is therefore transferred to
Delhi High Court with directions to decide the case within six months from
receipt of all documents. The new case No. is WP(C) 1875/2013 and next date of
hearing is 06.02.2014.
·
On
17.09.2013 – Karnataka High Court – Bangalore has given decision in favour of
State Bank of India and Syndicate Bank – stating that no discrimination has
been made by employers while putting up cutoff date.
·
WP No.
16482/2006 (S-RES) & WP No. 43208-10/2013 :
1) State Bank of India Pensioners’ Association
(Karnataka)
V/S
State Bank of India
Union of India
Reserve
Bank of India
State Bank of India
Employees Pension Fund
2) 24 employees of Syndicate Bank
V/S Syndicate
Bank
Union
of India
Reserve
Bank of India
Pension payable to retirees is regulated in terms
of Regulations 35, 36, 37 of Pension Regulations 1995.
1. Any
revised scheme in respect of past retirement benefits, if implemented with a
cutoff date, which can be held to be reasonable and rational in the light of
Article 14 of the Constitution need not be held to be invalid.
2. Whenever
a revision takes place, a cutoff date becomes imperative because the benefit
has to be allowed within the financial resources available with the Government.
3. Cutoff
date is fixed by the Executive Authority keeping in view the economic
conditions, financial constraints, and many other administrative and other
attending circumstances and court should not normally interfere with fixation
of cutoff date by the Executive Authority unless such order appears blatantly
discriminatory and arbitrary.
Based
on broader aspects of above points – the decision has not favoured petitioners.
Special
Civil Application No.1507 of 2007 in the High Court of Gujrat at Ahmedabad –
All India Retired Insurance Employees Federation
has filed the case against Government of India, LIC of India and General
Insurance (Public Sector) Association of India to seek justice because retirees
prior to 01.08.97 from LIC and Public Sector General Insurance Corporation are
discriminated in respect of payment of Dearness Relief as against retirees
after 01.08.97 who get Dearness Relief with 100% neutralization.
The
petitioner states that in the year 2000 LIC and GIPSA (General Insurance Public
Sector Association) effected an upward wage revision for all classes of
employees w.e.f. 01.08.97. The basic pay
for in-service employees was revised by merging Dearness Allowances (as
applicable to cost of living index 1740 points = 148 slabs) and developing a
revised pay structure – by resorting to 100% neutralization. As a result basic pay shot up considerably
which reflected in the pensionary benefits of those who retired before
31.07.1997 are getting less pension as compared to those who have retired after
01.08.1997.
The
next date fixed for final hearing is 28.02.2014. The background of the case has reference to
Board Resolution passed by LIC on 24.11.2001 which spelt three things -
·
There
should be 100% Dearness Relief to pre-01.08.1997 retirees.
·
That the
basic pension should be upgraded by merging Dearness Relief upto 1740 CPI
points.
·
Above
things to be applied after obtaining Government approval.
The Government has not approved the resolution as
yet litigation continues to seek justice through court cases at various places
in the country as the issue stands unresolved as yet.
A judgment from Supreme Court in summarized form
have appeared in The Hindu – Bangalore City edition on 27.01.2013 as under –
“New Delhi – In fixing pension, no different
treatment can be made among government employees who retired in different
periods while taking into consideration their ‘dearness pay’, the SUPREME COURT
has held”.
In a ruling that will benefit thousands of
employees, a Bench of Justice D.K. Jain (who has since taken over as Law
Commission Chairman) and J. S. Khehar quashed an August 9, 1989 Tamil Nadu
Government order to the extent that it extended to employees who retired on or
after June 1, 1988 a lower component of ‘dearness pay’ as against those who had
retired prior to June 1, 1988, holding that the Government order was violative
of Articles 14 (equality before law) and 16 (equality in matters of public
employment) of the constitution. The Bench said there was no valid
justification for the Government “to have classified pensioners similarly
situated as the appellants – the Kallakurichi Taluk Retired Official
Association, etc. (who retired after 01.06.1988) – from those who had retired
prior thereto.”
Writing the judgment, justice Khehar said inflation
would have the same effect on all pensioners, whether they retired prior to or
after June 1, 1988.
The purpose of adding the component of ‘dearness
pay’ to wages for calculating pension is to offset the effect of
inflation. Therefore, the classification
in the impugned Government order placing employees who retired after 01.06.1988
at a disadvantage, vis-a-vis the employees who retired prior thereto, by
allowing them a lower component of ‘dearness pay’ is clearly arbitrary and
discriminatory.”
The Bench said : “In a situation where the State
Government had chosen that a particular component of ‘dearness allowance’ would
be treated as ‘dearness pay’, it could not discriminate between one set of
pensioners and another, while calculating the pension payable to them.”
The aggrieved retirees after 01.06.1988 from the
services of Tamilnadu Government have won the court battle after a very long
period of 23 years and how many of those eligible beneficiaries have survived
to get the benefit of this judgment GOD ONLY KNOWS!
The Bank pensioners are also the victims of similar
treatment whereby the retirees prior to 01.11.2002 are getting lower component
of Dearness Relief (tapering basis) as against those who have retired after
01.11.2002 who get 100% neutralization of Dearness Relief. The judgment referred to above is therefore
fully applicable to bank pensioners retired prior to November 2002.
Under these circumstances retirees prior to
01.11.2002 need to have patience to wait and watch the outcome of negotiations
of UFBU with IBA as this issue has been covered in Charter of Demands for 10th
Bipartite Settlement.
The Banks have been pleading before courts that
demand for 100% Dearness Relief if granted will lead to huge financial
burden. This is not correct because –
A) The family pensioners and pensioners from sub-staff
category are already being compensated with 100% D.A. Neutralization as their
basic pension falls under the first slab only.
B) Most of the clerical staff falls under 2nd
slab where D.A. gets compensated upto 83% and the financial outgo by raising it
to 100% will be negligible.
·
The
Government pensioners are being paid Dearness Relief with 100% neutralization
w.e.f. 01.01.1996, which provides cushion against inflation.
·
The
Reserve Bank of India had granted 100% Dearness Relief to their retired
employees w.e.f. 01.02.2005.
·
In Charter
of Demands submitted by UFBU to IBA for 10th BPS it is insisted that
D.A. formula and neutralization should be at par with staff in service.
In view of the above developments all the retiree
organizations are eagerly waiting for final order of Supreme Court in SLP
No.28820/28221 of 2013 filed by Shri A. B. Kasturirangan and others (Canara
Bank) and admitted in September 2013.
However it needs to be noted that various points raised by courts as
above will be studied in depth and favourable decision for petitioners appears
to be a difficult proposition. In the
meanwhile retirees have to look forward for progress in demands for retirees
through 10th BPS Negotiations between UFBU & IBA.
*