An employee inflicted with the punishment of removal from service is entitled to superannuation benefits as per the Memorandum of Settlement, despite the provisions of the Pension Regulations.

JUDGMENT :

SANDEEP V. MARNE, J.

Heard. Rule. It is made returnable forthwith. Mr. Ajay G. Talhar, learned advocate waives service for respondent no.1 and Mr. Prashant K. Nikam, learned advocate waives service for respondent nos.2 to 6. At their joint request the matter is heard finally at the admission stage.

2. By the present petition, the petitioner seeks implementation of the penalty order dated 25.11.2011 by paying him all superannuation benefits in the form of Pension, Provident Fund, Gratuity, Commutation of Pension and leave encashment etc., along with interest. During pendency of the present petition, the petitioner has expired and his legal heirs have been brought on record.

3. In the disciplinary enquiry held against the petitioner on the charge of misappropriation of amounts while functioning as Cashier in the respondent – Bank, following punishment was imposed on him.

‘In view of the above, the undersigned as the Disciplinary Authority, confirms the proposed punishment as indicated in the show cause notice no. ZON/Vig/112 dated 4th November, 2011 and impose upon Sri Ashok W. Bankar, Clerk-cum-Cashier (now Single Window Operator), Jamb (Parbhani) branch (Under Suspension) the punishment as per clause 6(b) of Memorandum of Settlement dated 10th April 2002 that he “be removed from service with superannuation benefits i.e. Pension and / or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment.’ Further, the suspension period will not be treated as on duty and no other allowances except the subsistence allowance already paid will be released to Sri Bankar.’

4. It is the petitioner’s case that the punishment has been imposed under Clause 6 (b) of the Memorandum of Settlement dated 10.04.2002, which reads thus:

‘6. An employee found guilty of gross misconduct may:

a) …….

b) be removed from service with superannuation benefits i.e. Pension and / or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or

(c) to (i) ………..’

5. Mr. Mane, the learned Counsel for the petitioner would submit that the penalty order as well as clause 6 (d) of the Memorandum of Settlement clearly provide that upon imposition of the penalty of removal from service, the employee shall be entitled to all superannuation benefits. He would fairly concede that though the claim towards gratuity is also made in the petition, in the light of the communication dated 28.08.2014 forfeiting the amount of gratuity under the provisions of Payment of Gratuity Act, 1972, the petitioner is not pressing his claim towards gratuity and would resort to appropriate remedy in that regard. He would rely upon the decision of the Apex Court in Bank of Baroda vs. S.K. Kool (D) Through LRs and Another, Civil Appeal No.10956 of 2013 decided on 11.12.2013.

6. Per contra, Mr. Nikam, the learned Counsel appearing for respondent nos.2 to 6 – Bank would rely upon the provisions of Allahabad Bank (Employees’) Pension Regulations, 1995 (hereinafter referred to as the ‘Regulations’), particularly Rule 22 (1), which reads as under:

“22. Forfeiture of Service :

(1) Resignation of dismissal or removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits;’

7. He would further submit that the petitioner has committed gross misconduct of misappropriation of amount of Rs. 45,73,960/- and that therefore no pensionary benefits can be granted in his favour. He would submit that the penalty order uses the expression ‘as would be due otherwise under the rules or regulations’ and therefore under the provisions of Rule 22, the petitioner cannot claim pension or pensionary benefits.

8. The issue involved in the present petition is squarely covered by the decision of the Ap