D.H.Waghela, J. - (1.) The petitioner has invoked Articles 14, 16, 21 and 226 of the Constitution for claiming the declaration that she is entitled to get family pension from the respondent bank and for a direction to them to make payment of family pension with effect from 25.10.2000 with interest. The prayers are based upon the facts that her husband had joined service of the respondent bank in October, 1976 and had served till 24.10.2000 when he met with an accident and died in harness. By the letter dated 5.10.2004, the Branch Manager of the respondent was ordered to convey to the petitioner that the entire past service of her late husband was forfeited due to his involvement in fraudulent acts and hence his family was not entitled to family pension.
(2.) By affidavits of the Senior Branch Manager, it is stated that the aforesaid decision dated 5.10.2004 has remained unchallenged and it is an indelible fact that late Shri Padia had committed fraud in 13 Saving Bank accounts by making fictitious credit entries, had enhanced and altered figures of credit slips/vouchers etc. and withdrawn monies immediately from the said accounts which included four accounts of the petitioner and other family members and relatives and thereby he had swindled away sizeable amount of public money of Rs. 11,96,940/-, while he was working with the respondent. It is also averred that the respondent had filed a complaint on 20.1.2001 with City B Police Station. Jamnagar in respect of the aforesaid fraudulent transactions, which complaint was registered under Sections 408 and 409 of the Indian Penal Code, 1860 with Registration No. 74/2001; and, on investigation by the police, the Police Inspector had confirmed in his letter dated 29.10.2001 that there was evidence against late Mr. R.R. Padia of having committed crime. With that background of facts, it is averred that when full details and required evidence was found by the respondent bank for initiating disciplinary action against Mr. Padia for criminal breach of trust, fraud, etc. committed by him, he had passed away and, therefore, taking disciplinary action by the respondent was not possible. It is submitted on that basis that the acts/ offences committed by late Mr. Padia attracted the penalty of dismissal which entails forfeiture of entire past service and that in turn entailed disqualification for any pensionary benefits. It is also stated that the case of the petitioner was treated as deemed dismissal from service of the bank in view of the peculiar facts and circumstances and considering the pecuniary loss caused to the bank. "(1) It is further stated in the affidavit that the petitioner is also a conscious beneficiary of various amounts fraudulently credited in her various accounts maintained in different names with the respondent bank itself and that has resulted into straight financial loss of about Rs. 10 lacs which has hitherto remained unrecovered. It is stated that on discovery of fraud committed by the husband of the petitioner in various accounts, legal notices to all the concerned account holders have been issued, calling upon them to pay back with interest @ 16.5% p. a. the respective amounts which were illegally withdrawn and utilized by them in spite of having full knowledge of the entries fraudulently credited in their accounts and to which they were not entitled. It is stated that no repayment is made in response to those notices. The petition is, thus, resisted with the above facts and the plea that this is not a fit case in which this Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution because undue advantage is sought on the basis of unfortunate facts."
(3.) There is no dispute about the facts that the matter of pension and family pension for the employees of the respondent bank is covered by the statutory provisions enacted in the form of "Bank of Maharashtra (Employees') Pension Regulations, 1995, that they have come into force from 29.9.1995 and that they are made under the provisions of the parent Act, namely The Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970. Therefore, since the matter is covered by statutory provisions, Court has to apply and, in case of necessity, interpret those provisions for deciding upon the issues covered by it. The relevant provisions of the aforesaid regulations ("Rules" for short) may be reproduced hereunder: "39. Family Pension: (1) Without prejudice to the provisions contained in these regulations where an employee dues- (a) after completion of one year of continuous service, or (b)....... (c) ....... the family of the deceased shall be entitled to family pension, the amount of which shall be determined in accordance with Appendix-Ill." "40. Period of payment of family pension- (1) The period for which family pension is payable shall be (a) in the case the of a widow or a widower, upto the date of death or remarriage which ever is earlier; (b) ........ (c) ......... CHAPTER IX GENERAL CONDITIONS" "42. Pension subject to future good conduct:- Future good conduct shall be an implied condition of every grant of pension and its continuance under these regulations." "43. Withholding or withdrawal of pension:- The Competent Authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or criminal breach of trust or forgery or acting fraudulently or is found guilty of grave misconduct; Provided that........." "44. Conviction by Court:- Where a pensioner is convicted of a serious crime by a court of Law, action shall be taken in the light of the judgment of the Court relating to such conviction." "48. Recovery of Pecuniary loss caused to the Bank:- (1) The Competent Authority may withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, and order recovery from pension of the whole or part of any pecuniary loss caused to the Bank if in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct of negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service: Provided that the Board shall be consulted before any final orders are passed; Provided further that departmental proceedings, if instituted while the employee was in service, shall, after the retirement of the employee, be deemed to be proceedings under these regulations and shall be continued and\concluded by the authority by which they were commenced in the same manner as if the employee had continued in service; Provided also that....... (2) Where the Competent Authority orders recovery of pecuniary loss from the pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of the employee; Provided that where a part of pension is withheld or withdrawn, the amount of pension drawn by a pensioner shall not be less than the minimum pension payable nder these regulations." "49. Recovery of Bank's dues:- The Bank shall be entitled to recover the dues to the Bank on account of housing loans, advances, licence fees, other recoveries and recoveries due to staff co-operative credit society from the commutation value of the pension for the pension or the family pension." "56. Residuary provisions:- In case of doubt, in the matter of application of these regulations, regard may be had to the corresponding provisions of Central Civil Services Rules 1972 or Central Civil Services (Commutation of Pension) Rules, 1981 applicable for Central Government employees with such exceptions and modifications as the Bank, with the previous sanction of the Central Government, may from time to time determine.";