( 1 ) BY order dated 19. 3. 2004, this Court had issued rule and granted ad interim relief to the extent that the respondent shall not be allowed to withdraw the amount of gratuity deposited by the petitioner. The respondent herein has filed Civil Application No. 4594 of 2004 for vacating the ex-parte stay granted by this Curt on 19. 3. 2004. The learned advocates appearing for the parties have requested me that instead of deciding the civil Application for vacating the interim relief, the main matter itself can be disposed of since the arguments to be advanced by both the sides for vacating/confirming the interim relief would be the same to be made in the main Special Civil Application. In view of the request of the learned advocates for the parties, the petition is heard and is being disposed of finally.

( 2 ) AT the outset, brief facts necessary to appreciate the controversy involved can be stated. The respondent herein was working with the petitioner, Union bank of India, as a Daftari. It is the case of the petitioner that on 8. 4. 96 when the respondent was discharging his duties as Daftari Peon at Bhavnagar, the respondent had accompanied one Shri Bhatt, Head Cashier with cash remittance from Bhavnagar Branch to the extension counter for the purpose of salary payment to the employees of the Municipal Corporation. It is the case of the petitioner that after collecting the cash from the cash department of the Bhavnagar Main Branch, the respondent for the purpose of personal cash withdrawal left the cash unattended, with the result one bag containing Rs. 10 lacs was stolen. For the aforesaid misconduct, the petitioner issued a chargesheet dated 21. 3. 97 against the respondent stating, inter alia, that had the respondent been vigilant in ensuring the safety of the bag, for which purpose he had come to the Main branch, the theft could have been prevented. He was, therefore, called upon to submit his explanation why appropriate disciplinary action should not be taken against him for his acts and omissions which led to a monetary loss of Rs. 10 lacs to the Bank.

( 3 ) AT the end of the departmental inquiry initiated pursuant chargesheet dated 21. 3. 97, the Disciplinary authority imposed punishment of dismissal from service against the respondent for the proved misconduct and acts prejudicial to the interest of the Bank causing monetary loss to the Bank.

( 4 ) IT is not in dispute that the respondent carried the order of dismissal from service in appeal before the departmental Appellate Authority and the Appellate authority by its order dated 14th December 2001, was pleased to reduce the penalty from that of dismissal to that of compulsory retirement "purely on humanitarian grounds". It is not in dispute that this order of penalty of compulsory retirement has not been carried in appeal by the respondent and the same has become final.

( 5 ) BY order dated 29. 8. 2002, the Deputy General manager (Terminal Benefits) of the petitioner Bank passed order directing forfeiture of full amount of gratuity of the respondent of Rs. 1,05,117. 50 ps. Being aggrieved by the said action of the petitioner of forfeiture of the entire amount of gratuity, the respondent approached the controlling Authority under the Payment of Gratuity Act. The Controlling Authority by its order dated 26th August, 2003 was pleased to hold that the action of the petitioner in forfeiting the gratuity of the respondent is illegal and was pleased to hold that the respondent is entitled to be paid the amount of gratuity of rs. 1,05,117. 50 ps and directed that the same be paid with simple interest at the rate of 10 per cent per annum calculated from the period between 30th December 2001 till the gratuity is paid.

( 6 ) BEING aggrieved by the said order of the controlling Authority under the Payment of Gratuity Act dated 26th August 2003, the petitioner preferred appeal before the Appellate Authority under the Payment of gratuity Act. The Appellate Auth