ORDER :

Dinesh Mehta, J.

1. By way of the present writ petition, petitioner has challenged communication dated 12.05.2021, issued by the Secretary-Rajasthan Rajya Vidyut Karmachari Trust, respondent No. 2, who has cancelled gratuity Pass Order No. 655 dated 30.06.2020, issued qua the petitioner, inter alia observing that since the criminal case against the petitioner under Prevention of Corruption Act has not been finally decided, gratuity amount of the petitioner can not be paid.

2. The petitioner, an Assistant Engineer in the respondent-Jodhpur Vidyut Vitran Nigam Limited superannuated on 31.03.2018.

3. While the petitioner was in service, he was apprehended by the Anti Corruption Bureau and consequentially a criminal case under the provisions of Prevention of Corruption Act came to be registered against him.

4. Though the petitioner was placed under suspension but no disciplinary enquiry was initiated against him and the petitioner got superannuated.

5. After his retirement, all retiral dues were paid to the petitioner and after his persuasion a Pass Order in relation to his gratuity came to be issued on 30.06.2020. The Account Officer, however, put a note that the amount of gratuity be paid first, if any penalty is imposed on account of criminal offence, the sanctioning officer will be personally responsible for the recovery.

6. Such being the position, payment in furtherance of the Pass Order No. 655 dated 30.06.2020, was not made and ultimately Secretary of the Rajasthan Rajya Vidyut Karmachari Trust (CPF Trust) cancelled the same.

7. Mr. Purohit, learned counsel for the petitioner, invited Court's attention towards the Pass Order dated 30.06.2020 (Annex. 4) and submitted that the respondents have finally prepared the Pass Order, however, the Accounts Officer or some other officer of the Respondent-Nigam had put an arbitrary condition that the Paying Authority should undertake that in case any recovery is to be made, he would guarantee recovery from the petitioner.

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8. Learned counsel argued that how can the Paying/Controlling Authority undertake that in case any recovery is to be made from the petitioner, he would make the same good. Learned counsel argued that not only the condition/note referred above, even the order dated 12.05.2021, whereby Pass Order has been cancelled, is illegal and contrary to law.

9. Inviting Court's attention towards Rule 3(3) of Rajasthan State Electricity Board Payment of Gratuity Rules, 1972, he argued that the gratuity can be withheld only under conditions enumerated in point (a) and (b) of Sub Rule (3) of Rule 3 of Rules of 1972. He emphasised that in the present case, when the petitioner has been allowed to retire without enquiry being initiated against him, it can not be said that any amount would be recoverable from petitioner for the loss he has caused to the respondent- Nigam.

10. Mr. Hanuman Singh Gour, learned counsel for the respondent- Nigam argued that the respondents are fully justified in withholding the gratuity, inasmuch as, the case under Prevention of Corruption Act, is pending against the petitioner.

11. Heard.

12. Having perused the material on record and considering that during the service tenure, the respondents have not initiated any disciplinary proceedings against the petitioner in relation to the case of Prevention of Corruption Act, in which the petitioner was trapped.

13. This Court is of the firm view that the respondents can not justifiably withhold the gratuity.

14. Rule 3(3) of the Rules of 1972 has been enacted in order to ensure that recovery can be made from an employee, if any loss has been caused to Nigam by the employee. However, in the instant case, no adjudication in this regard has been made. The loss has not been assessed nor was there any case of causing loss to the Nigam's property. Hence, the respondents