H.K. Rathod, J.

Heard learned Advocate Mr. R.S. Sanjanwala on behalf of Petitioner.

2. The Petitioner Rajnagar Textile Mills Ltd has challenged order passed by Controlling Authority (Central) under Payment of Gratuity Act, 1972 dated December 16, 2008 in application No. 48(11)/2008 and also challenging order passed by Appellate Authority (Central) under Payment of Gratuity Act being appeal No. 48(2)/2008 dated June 10, 2008.

3. The Controlling Authority directed to Petitioner to pay Rs. 3,50,000/- + 10% simple interest from date of superannuation of Respondent dated May 31, 2008 till date of payment. The Appellate Authority has dismissed appeal preferred by Petitioner.

4. Learned Advocate Mr. Sanjanwala submitted that Respondent, who was working as Store Officer superannuated on May 31, 2008. Since CBI filed case against Respondent being RC/2/1988, amount of gratuity was not paid to Respondent. The Controlling Authority has granted gratuity amount which confirmed by Appellate Authority and at the time of filing appeal before Appellate Authority, Petitioner has deposited said amount as per order passed by Controlling Authority before Appellate Authority. The only contention raised before this Court as it was raised before Controlling Authority by Petitioner that case of CBI had initiated criminal prosecution after thorough investigation and criminal case has been registered and same is yet to be decided by competent authority. In this circumstances, Mills company is not in a position to pay amount of gratuity. Therefore, question is whether Petitioner is entitled to withheld amount of gratuity or not because of CBI had initiated criminal prosecution against present Respondent and criminal case has been registered and pending before competent authority.

5. Learned Advocate Mr. Sanjanwala submitted that one order has been passed by this Court in case of Jahangir Textile Mills in S.C.A. No. 11124/2008, where amount of gratuity has been withheld by Mills company because of residential accommodation has not been vacated by concerned employee. That question has been referred to larger Bench by aforesaid order dated August 12, 2009, wherein para 5 to 7 are relevant, therefore, quoted as under:

5. Shri Vasavada has further relied upon decision of this Court in case of Anapol Vs. J.S.E.B. and Others, (2003) 1 BC 240, wherein this Court (Coram: D.H. Waghela, J) has held that the amount due to ex-employee cannot be adjusted against amount of rent due to employer for unauthorised detention of premises by the employee.

6. In view of these two views expressed by different Benches of this Court, I am of the view that this matter deserves to be referred to Larger Bench, so as to bring to an end to the uncertainty prevalent with regard to position of law in such a situation.

7. Hence, office is directed to place this matter before the Honourable. The Chief Justice for passing appropriate order in light of the aforesaid observations.

6. In view of above observation made by this Court, matter has been placed before Honourable the Chief Justice for passing appropriate order in light of observation made by this Court as referred above. Therefore, learned Advocate Mr. Sanjanwala submitted that this matter may be also referred to bench of Honourable the Chief Justice to place before Division Bench of this Court because of uncertainty and having two different view of Learned single Judge in respect to question of withholding gratuity by employer. Except that no other submission is made by learned Advocate Mr. Sanjanwala before this Court.

7. I have perused order passed by Controlling authority and by Appellate authority. In light of contention raised by learned Advocate Mr. Sanjanwala, question is whether Petitioner Mills Company entitled to withhold amount of gratuity, which has been found to be due in favour or Respondent under provision of Payment of Gratuity Act because CBI had initiated criminal prosecution and criminal case is registered against