IN THE HIGH COURT OF JUDICATURE AT BOBBY IN THE HIGH COURT OF JUDICATURE AT BOBBY IN THE HIGH COURT OF JUDICATURE AT BOBBY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4105 OF 2000 WRIT PETITION NO. 4105 OF 2000 WRIT PETITION NO. 4105 OF 2000 Moreshwar Anant Koshe ...Petitioner V/s. Bank of Maharashtra, Pune & Ors. ...Respondents Shri D.J. Bhanage for the Petitioner. Shri A.G. Damle for the Respondents. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : MARCH 17, 2008 DATED : MARCH 17, 2008 DATED : MARCH 17, 2008 P.C. :- P.C. :- P.C. :- 1. By this petition, the petitioner who was in the employment of respondent Bank challenges order dated 19th February, 1998 by which the Disciplinary Authority imposed punishment of compulsory retirement on the petitioner and also directed that the suspension period should be treated as such. The petitioner is also challenging the order passed by the appellate authority dated 28th September, 1999 confirming the order imposing the punishment of compulsory retirement. 2. The learned Counsel appearing for the petitioner, on taking instructions from the petitioner - 2 - who is present in Court, states that the petitioner is restricting his prayer only to the ground that though the petitioner has been compulsorily retired but he has been denied the benefits of pension. The learned Counsel submits that the after the imposition of the punishment of compulsory retirement, the petitioner had made an application to the respondent Bank to permit him to exercise his option and opt for 1995 pension scheme. That representation of the petitioner was rejected by order dated 8th March, 2000. The reason given in that order was that a fresh option can be given only by those employees who were suspended at the relevant time but who have been ordered to be reinstated in service. Because the petitioner has not been reinstated in service, he cannot give an option. In the affidavit-in-reply filed in this petition, the only reason that has been given is that the petitioner did not exercise his option in relation to 1992 scheme and he did not exercise his option in relation to the 1995 scheme also. The contention of the petitioner is that he was not aware that such options are being called because at the relevant time, he was under suspension, - 3 - has been denied. It is contended that the employees who were under suspension at the relevant time, have also exercised the option. 3. Now, in view of the statement made by the learned Counsel for the petitioner that challenge to the order of compulsory retirement is given up by him and the only contention that we have to consider is whether the petitioner was entitled to exercise his option in relation to 1995 Pension Scheme after the punishment of compulsory retirement was imposed on him. Admitted position is that the petitioner was placed under suspension by order dated 15th June, 1993. The order imposing punishment was given in February 1998. Options were to be exercised in 1995. The petitioner states that he could not exercise the option because he was not aware of the scheme. The respondent has denied the position that the petitioner was not aware of the Pension Scheme and the fact that he has to exercise the option. In our opinion, if the petitioner admittedly was under suspension and as it is nobody’s case that the scheme was sent individually to the employee, it is - 4 - possible that the petitioner not coming across the publication of the scheme on the notice board of the Bank. The scheme is also not published in the official Gazette. Therefore, in our opinion, it is possible that the petitioner may not have been aware that he has to exercise the option in 1995. What is pertinent to note is that though according to the affidavit of the Bank, the petitioner could have exercised his option even while he was under suspension, from the communication from the Bank to the petitioner dated 8th March, 2000, it appears that the petitioner who was under suspension could not have exercised the option while he was under suspension and he could have done so after he was reinstated in service. We find there is some contradiction in the stand taken in the communication dated 8th March, 2000 of the Bank and affidavit filed by the Bank in the present case. The petitioner has put in 28 years of service in the Bank except for the fact that option has not been exercised by the petitioner for the Pension Scheme, the petitioner appears to be entitled to the benefits of pension. In our opinion, considering that the petitioner was under suspension, it appears - 5 - that the petitioner was not aware either of the Pension scheme or the necessity of giving an option. It is apparent from the affidavit filed by the Bank that the petitioner is not being permitted to give an option now because the Bank does not accept that the petitioner was not aware of the necessity of giving the option. In our opinion, considering the length of service of the petitioner and the peculiar facts and circumstances of the case, this is a fit case where the Bank should have allowed the petitioner to give an option opting for the 1995 Pension Scheme. 4. The petition, therefore, is disposed of with a direction to the respondent Bank to permit the petitioner to exercise his option in favour of 1995 scheme. The petitioner to submit his option within a period of four weeks from today. On the option being submitted, the Bank shall process it, in accordance with law and grant benefits, if the petitioner is otherwise entitled, in accordance with that scheme. 5. Rule is made absolute accordingly. - 6 - (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)