An employer is not entitled to withhold or deduct gratuity payable to an employee on account of arrear rent payable by the employee for official accommodation provided by the employer.

( 1 ) SINCE both the appeals involve identical question of facts and law, those are disposed of by this common judgment.

( 2 ) SHORT question in these appeals is whether the appellant was entitled to withhold and/or deduct gratuity payable to the respondents on account of arrear rent payable by the writ petitioners/respondents in respect of their official accommodation provided by the appellants.

( 3 ) THE writ petitioners/respondents opted for voluntary retirement scheme. Such options exercised by the writ petitioners/respondents were accepted by the appellant company and the retiral dues were paid respectively to the writ petitioners/respondents after deducting a part of the gratuity on account of arrear rent allegedly payable by the writ petitioners/respondents on account of official accommodation provided to them.

( 4 ) SUCH action on the part of the appellant company was challenged by way of writ petitions being W. P. No. 22504 (W) of 1998 and W. P. No. 5131 (W) of 1999. The said writ petitions were disposed of by the learned Single Judge by his judgment and order dated July 25, 2000 appearing at pages 361-389 of the first paper book and August 16, 2000 appearing in pages 454 to 478 of the second paper book respectively. The learned Single Judge considering the provisions of the Payment of Gratuity Act, 1972 (hereinafter referred to as the said Act) held that the payment of gratuity to the retired employees or any part thereof cannot be withheld subject to the provisions of the section 4 sub-section (6) of the said Act. The learned Judge further held that the exceptions provided in section 4 sub-section (6) do not contemplate a situation under which the appellant company could deduct of withhold a part of the gratuity to the writ petitioners/respondent on their superannuation. Accordingly, the writ petition was allowed and the appellant company was directed to pay the said deducted undisputed amount together with interest @ 10% per annum.

( 5 ) BEING aggrieved by the said two judgments and orders the appellant company preferred the instant appeals. During the pendency of the instant appeals the appellant company went into liquidation and at present the official liquidator attached to this Court is in charge of the appellant company.

( 6 ) FOR the purpose of disposal of the present appeals section 4 sub-section (6) of the said Act of 1972 being relevant herein and is quoted below :"4 (6) Notwithstanding anything contained in sub-section (1)- (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or 'destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employe shall be wholly forfeited- (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment. "

( 7 ) UNDER the provisions of the said Act, 1972 the employer is entitled to withhold the payment of gratuity only under three circumstances : (I) the service of an employee is terminated for wilful omission or negligence on the part of the employee causing loss or damage or destruction of the property belonging to the company; (ii) service of the employee is terminated for riotous or disorderly conduct or any other act of violence;. (iii) termination of service due to an offence involving moral turpitude committed in course of this employment.

( 8 ) NONE of the three eventualities stipulated above was present in the instant case. The writ petitioners/respondents were allowed to retire prematurely accepting the voluntary retirement scheme. Assuming that there had been some dues to be re