VALMIKI J. MEHTA, J

1. By this writ petition under Article 226 of the Constitution of India, the petitioner seeks the relief of quashing of the communication dated 22.2.2017 issued by the respondent no.1/employer refusing to release the gratuity amount payable to the petitioner on petitioner’s superannuation. The impugned order dated 22.2.2107 reads as under:-

“HR(D) EAST/2016-17/278 DATE 22-02-2017

Sh. Prabhu Lal,

A-88, Nathu Pura,

Near MCD Primary School,

Delhi-84

Sub: Request for releasing payment of entitled Gratuity Amount in favour of Sh. Prabhu Lal, Ex.S.O., E. No.40125088, superannuated from the services of BSES Yamuna Power Ltd on dt. 31.03.2016.

Sir,

With reference your request dated 20.12.2016 regarding releasing of Gratuity amount after retirement from BSES Yamuna Power Ltd on 31.03.2016.

In this connection, it is to bring to your kind notice that as per Rule 69(1)(c) of the CCS Pension Rules, 1972, which are applicable to Ex DVB Employees-“No Gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon”.

Thus your request for release the payment of gratuity cannot be acceded to as the case is still sub-judice.

Regards,

Sd/-

(Simrat Matharoo)

Dy. G.M.(HR) BYPL”

2. The impugned order shows that the respondent no.1/employer has relied upon Rule 69(1)(c) of the CCS Pension Rules, 1972 to deny payment of gratuity inasmuch as a criminal case is pending against the petitioner. The issue as to whether an employer can withhold pension or gratuity or both, even if there is no financial loss to the employer, and simply because a criminal case is pending, is no longer res integra and decided by the Supreme Court in the case of Union of India & Others Vs. B. Dev (1998) 7 SCC 691 wherein the Supreme Court has held that for withholding pension or gratuity or both, it is not necessary that the same is done only where pecuniary loss is caused to the employer. This judgment of the Supreme Court has been referred to by a Division Bench of this Court in two connected cases titled as Tulsi Ram Arya Vs. The Chairman Delhi Transco Limited & Ors. and BSES Yamuna Power Limited Vs. Tulsi Ram Arya and Ors. in LPA Nos. 219/2013 and 495/2013 respectively decided on 22.8.2013, and accordingly, the Division Bench held that even in case where there is no pecuniary loss, an employer can yet withhold the pension on account of pendency of a criminal case. Mutatis Mutandis, the aforesaid ratio will apply even with respect to payment of gratuity in view of language of Rule 9 of the CCS Pension Rules. The relevant paras of the judgment of the Division Bench in the cases of Tulsi Ram Arya (supra) and BSES Yamuna Power Limited (supra) are pars 11 to 15, and which paras read as under:-

“11. Rule 9 & Rule 69 of the CCS (Pension) Rules are relevant for considering the present controversy. The relevant provisions of Rule 9 & Rule 69 are quoted below:-

“Rule 9:- Right to President to withhold or withdraw pension

(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement:

Provided that the Union Public Service commission shall be consulted before any final orders are passed:

Provided further that where a part of pension is withheld or withdrawn, the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees Three thousand five hundred from 1-1-2006-see GID below Rule 49) per mensem.

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(4) In the case of Government servant who has retired on attaining the age of super

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