C.L. Soni, J.

1. The petitioner, who retired as Deputy Superintendent of Police (Dy. S.P.) on 30-6-2012 on reaching the age of superannuation, has filed this petition under Art. 226/227 of the Constitution of India to hold the action of the respondents in withholding his pension and gratuity as illegal and arbitrary and to direct the respondents to release him regular pension and gratuity. The petitioner has averred that in the order dated 30-6-2012, permitting him to retire, it is stated that 'C' Summary proposal in respect of criminal complaint under Secs. 498A and 114 of the Indian Penal Code registered at Amreli City Police Station being C.R. No. I-36 of 2011 is pending in the Court and that inquiry against the petitioner for not accepting the investigation of one criminal complaint being C.R. No. I-56 of 2011 is going on. It is the case of the petitioner that by the aforesaid order, the petitioner was retired on the condition that the above said case and inquiry shall continue against the petitioner.

2. The petitioner has further averred that in the complaint under Sec. 498A filed by one Rekhaben against accused Naranbhai Rathva alleged to be her husband, the petitioner is arraigned as accused as he did not make an investigation as regards allegation of harassment to complainant. The petitioner is otherwise not concerned with the offences under Sec. 498A of the Indian Penal Code. As regards the inquiry of not accepting the investigation for C.R. No. I-56 of 2011, the petitioner has averred that the petitioner had taken over the investigation on 5-11-2011 and all steps necessary, were taken for such investigation. The petitioner has contended in the petition that as on the date of retirement of the petitioner, since no departmental proceedings nor any judicial proceedings was pending against the petitioner, the respondents were not justified in not releasing pension and gratuity of the petitioner.

3. No affidavit-in-reply to oppose the petition is filed.

4. Learned Advocate Mr. Hiren Modi for the petitioner submitted that as regards the complaint under Sec. 498A lodged by one Rekhaben, the general allegations are made that the police officers were not co-operating in taking action. However, there is no allegation as regards giving cruel treatment to the complainant by the petitioner. Mr. Modi submitted that in fact, in respect of the said complaint, the C-Summary report was filed, which has been pending. Therefore, as on the date of the retirement of the petitioner, no judicial proceedings could be said to be instituted and pending.

5. Mr. Modi submitted that as regards the second item of not taking investigation by the petitioner in respect of C.R. No. I-56 of 2011, the petitioner was not served with any charge-sheet for departmental inquiry on or before the date of retirement of the petitioner. Mr. Modi submitted that the petitioner was served with only show-cause notice dated 26-6-2012, calling upon the petitioner as to why departmental inquiry against the petitioner should not be instituted for not obeying the instructions of the concerned authority for taking up the investigation and thereby showing negligence towards the duty as a police officer. Mr. Modi submitted that in fact, much before the above said show-cause notice served to the petitioner, the petitioner had already investigated into the allegations of the complaint being C.R. No. I-56 of 2011. Mr. Modi thus, submitted that as on the date of retirement of the petitioner, since, neither any departmental proceedings nor any judicial proceedings was pending and the respondents could not have withheld the pension and gratuity of the petitioner. He, thus, urged to allow the petition.

6. Learned A.G.P. Mr. Ronak Raval appearing for the respondents submitted that in respect of the offences of Sec. 498A, no final order on the C-Summary was passed by the Court till the petitioner retired from service. Mr. Raval submitted that in such circumstances, it could be said