The withholding of gratuity during the pendency of a criminal proceeding is permissible only if the offenses alleged against the employee constitute "serious crimes" and the employee is given an opportunity to be heard.

Tapabrata Chakraborty, J.

1. The instant writ petition has been preferred challenging a judgment dated 12th May, 2016 passed by the learned tribunal in O.A. 1317 of 2013.

2. The undisputed facts are that the respondent herein joined his service under Eastern Railway on 31st October, 1974. On the basis of a complaint lodged by the Senior Manager (Printing and Stationery), a criminal case was initiated against him and some other employees being RPF/PF/Post Case No.12 of 2010 dated 21st May, 2010 for charges under Sections 145/146/147 of the Railways Act, 1989 (hereinafter referred to as the said Act of 1989). During pendency of the said criminal case the respondent was allowed to superannuate on 28th February, 2011. No disciplinary proceeding was pending against the respondent prior to or on the date of his superannuation and there was also no allegation of any pecuniary loss against him. Subsequent thereto, a pension payment order was issued by the employer and the respondent was disbursed provisional pension together with CGIS, provident fund and leave salary. However, gratuity, benefits of commutation of pension, composite personal grant and RELHS were withheld. Aggrieved thereby repeated representations were made and ultimately by memoranda dated 12th April, 2011 and 23rd August, 2011, the petitioner no.3 intimated, inter alia, “since a case has been filed against Sri Maiti and summon has already been issued by Ld. CMM/Bank shall Court, it should be treated as judicial proceedings are instituted against him” , and that as per extant rules “final pension along with DCRG and commutation of pension cannot be released in favour of you at present till finalization of the court case”. Challenging such denial of the petitioners to disburse the final pensionary benefits, the respondent preferred an application being O.A. 1317 of 2013 before the learned tribunal. Upon contested hearing the said application was disposed of by a judgment dated 12th May, 2016 directing the petitioners to disburse the withheld settlement dues of the respondent within a period of two months with interest on the arrears at the rate of 8% per annum from the date the dues accrued.

3. The sole issue which arises for consideration is as to whether the learned tribunal has erred in law in directing the petitioners to disburse the final pension along with gratuity and commutation of pension to the respondent during pendency of a criminal proceeding against the respondent.

4. Mr. Swapan Banerjee, learned advocate appearing for the petitioners submits that in terms of the provisions of rule 10(1)(c) of the Railway Services (Pension) Rules, 1993 (hereinafter referred to as the pension rules of 1993) the petitioners are entitled to withhold disbursement of gratuity in the backdrop of the admitted fact that a criminal proceeding is pending against the respondent. Disbursement of full pension is subject to future good conduct of the employee concerned and the employer has every right to withhold the disbursement of final pension along with gratuity and commutation of pension in view of pendency of a criminal proceeding.

5. According to him the definition of the term “employee” under Section 2(e) of the Payment of Gratuity Act, 1972 (hereinafter referred to as the said Act of 1972) does not bring within its fold a Central Government employee and that rules 9 and 10 of the said pension rules of 1993, having the blessings of Article 309 of the Constitution of India, would have predominance and in terms of the said rules, particularly rule 10(1)(c), the petitioners have rightly withheld the gratuity amount due to pendency of a criminal proceeding and that the learned tribunal erred in law in directing the petitioners to act contrary to the said pension rules and such infirmity warrants interference of this Court. In support of such contention reliance has been placed upon unreported judgments delivered in the case of Union of India & Ors Vs. Joydev Ghatak and in WPCT