IMPORTANT POINT
In view of conflict in (2007) 1 SCC 663 and (2011) 10 SCC249 matter referred to larger Bench.

JUDGMENT

A.K. SIKRI, J.

1. Leave granted.

2. The respondent was working as Chief General Manager (Production) since 17.2.2006 at Rajmahal area under Mahanadi Coalfields Ltd., the appellant herein. A memo containing articles of charge was issued to him on 1.10.2007 alleging that there was shortage of stock of coal in Rajmahal Group of mines which was under his management and enquiry was proposed to be conducted under Rule 29 of the Conduct, Discipline & Appeal Rules.

3. During the pendency of the departmental proceeding, the Respondent was allowed to retire on 31.7.2010 on attaining the age of superannuation. The Respondent submitted an application on 21.9.2010 to the Director (Personnel) for payment of gratuity. On the same date, he also submitted an application before the Controlling Authority under Payment of Gratuity Act cum-Regional Labour Commissioner for payment of gratuity.

4. Notice was issued to the Appellant to appear. The appellant appeared and stated that the payment of gratuity was withheld due to reason that disciplinary case is pending against him. The controlling authority held that the claim of the Respondent was pre-mature.

5. The respondent challenged the order by filing the writ petition. The single Judge dismissed the writ petition holding that in view of the existence of an appellate forum against the order passed by the Authority, the Respondent may file an appeal before the Appellate Authority within 21 days from the date of passing of the impugned order.

6. The Respondent then filed Intra Court Writ Appeal. The Division Bench of the High Court has held that writ petition was maintainable. On merits, it ruled that the disciplinary proceedings against the respondent were initiated prior to attaining the age of superannuation. The respondent retired from service on superannuation and hence the question of imposing a major penalty of removal or dismissal from service would not arise as per the decision of the Supreme Court in Jaswant Singh Gill vs. Bharat Coking Coal Ltd. & Ors. (2007) 1 SCC 663. The High Court has further held that the power to withhold payment of gratuity as contained in Rule 34(3) of the Rules, 1978 shall be subject to the provisions of the Payment of Gratuity Act, 1972. Therefore, the statutory right accrued to the Respondent to get gratuity cannot be impaired by reason of the Rules framed by the Coal India Ltd. which do not have the force of a statute. On that basis, direction is given to the appellant to release the amount of gratuity payable to the respondent.

7. In the aforesaid circumstances, the question which falls for consideration is as to whether it is permissible in law for the appellant to withhold the payment of gratuity to the respondent, even after his superannuation from service, because of the pendency of disciplinary proceedings against him.

8. Before we proceed to answer this question in the light of arguments advanced by Counsel on either side, we would like to point out that the question of maintainability of the writ petition against the order of the Controlling Authority under the Payment Gratuity Act was not raised before us by the learned Counsel for the appellant. Thus, the learned Counsel did not challenge the approach of the writ appeal Court in entertaining the writ appeal on merits by giving the reason that it was so doing to avoid confusion and ambiguity, more so when there were no disputed facts involved and the issue involved was pure question of law. We are, therefore, not called upon to decide as to whether the approach of the Division Bench in entertaining the writ appeal on merits was erroneous or not.

9. Reverting to the issue framed above, before we examine the same, we would also like to narrate some more facts for clear understanding of the issue involved. The appellant-Ch.-cum-Man. Director Mahanadi Coalfield Limited (CIL) has framed the Conduct Discipline and Appeal Rules, 1978 (hereinafter to be referred as 'CDA Rules'). These are applicable to th