Radha Mohan Prasad, J.

1. In this writ petition the prayer on behalf of the petitioner is to issue an appropriate writ, order or direction commanding the respondents to pay his post retiral dues i.e., gratuity amounting to Rs. 29,905/-and commutation of pension amounting to Rs. 40,559/- forthwith alongwith interest thereon at the rate of 18% per annum.

2. The petitioner retired from the Defence service as Nayak on 31.3.1997. He claims to have served the nation to the best of his ability and full satisfaction and during his service, no proceeding was ever initiated. However, there is a criminal case pending against him at Sasaram. The petitioner though is getting pension but his aforementioned amount of gratuity and commutation of pension have been kept withheld on account of pendency of the said criminal case not relating to discharge of his official duty against him.

3. In the counter affidavit filed on behalf of the respondents it is alleged that the petitioner while serving with 3 Air Formation Signal Regiment was involved in a criminal case under section 154/302 of the Indian Penal Code and was arrested by civil police on 20th May, 1993 while he was on leave. The petitioner was released on bail on 19th September, 1993. Pay and allowance of the petitioner for the period under arrest were withheld by Commanding Officer in terms of section 93 of the Army Act read with rule 194 of the Rules framed thereunder and casualty was published, vide D.O. Part II Order No. 98/02/94. The petitioner was attached to Bihar and Orissa Sub-Area Signal Company for defending the court case as per Army Order 89/81, which has not yet been finalised. It has, thus, been contended that on account of pendency of the said criminal case against the petitioner, grant of service gratuity and commuted value of pension can be considered only after finalisation of criminal case/issue of suitable order from the court.

4. The question involved in the present case is as to whether the aforementioned dues of the petitioner can be legally withheld on account of pendency of criminal case not related to the discharge of his official duty.

5. Learned counsel for the petitioner has submitted that when the petitioner has been paid his pension, there cannot be any justification for withholding of gratuity and commutation of pension on account of pendency of a criminal case not related to the discharge of his official duty. He has submitted that there is no such power vested in the authority under any statutory provisions.

6. On the other hand, Mr. Mishra, learned Additional Standing Counsel has submitted that the petitioner was paid his pension provisionally subject to finalisation of the criminal case. According to him, as per the instruction of the Ministry ot Defence, contained in Memo No. 4041O/AG/PS4 (c)/3212/B/P (Pension/Sers) dated 28th September, 1983, while simplifying the earlier instruction and streamlining the existing procedure, it was decided that the payment of 100% provisional pension to retiring service personnel against whom any departmental or judicial proceedings are pending or were instituted after retirement, in respect of an event which took place not more than four years before such institution can be sanctioned and the same shall become final only after the proceedings are concluded and the Government has taken a decision and final orders are issued. As such, according to him, the petitioner cannot take advantage of sanction of full pension to get other retiral benefits. He further submitted that the Ministry of Defence, vide letter no. B/40410/AG/PS4 (c)/1252/B/D (Pen/Sers) dated 21st June, 1985, dealing with grant of DCRG and commutation value of pension, amended the said instruction dated 28th September, 1983 regarding grant of provisional pension and clause (a) of para 2 of the said instruction was substituted, whereby CDA (Pensions) has been empowered to grant provisional pension without the orders of the General Officer Commandin