JUDGMENT :

Jagmohan Bansal, J. (Oral)

By this common order, the above-noted petitions are hereby adjudicated as issues involved and prayer sought in all the petitions are common. For the sake of convenience and with the consent of parties, the facts are borrowed from CWP-85-2022.

2. The petitioner through instant petition under Articles 226/227 of the Constitution of India is seeking setting of order dated 28.09.2018 (Annexure P-1) whereby Controlling Authority under Payment of Gratuity Act, 1972 (for short '1972 Act') and order dated 29.10.2020 (Annexure P-3) whereby Appellate Authority have directed the petitioner to pay gratuity alongwith interest.

3. The petitioner is a Public Sector Undertaking and engaged in the business of manufacture and supply of different agriculture products. Respondent No.3 (for short 'employee') joined petitioner on 21.09.1981. He retired on attaining the age of superannuation on 30.06.2017. During the tenure of his service, he was served multiple charge sheets. In all the charge sheets, there was allegation of misconduct causing loss to the Organization. The petitioner has concluded proceedings with respect to a few charge sheets, however, proceedings with respect to a few charge sheets are still pending. It is apt to notice that petitioner retired on 30.06.2017 and charge sheets were issued during 2015-2017 meaning thereby charge sheets were issued at the fag end of his service tenure.

4. The petitioner on account of pendency of aforesaid charge-sheets withheld gratuity of the employee. No order of dismissal or removal from service was passed and he was made to retire subject to departmental proceedings.

5. The employee in 2017 filed an application before the Controlling Authority seeking release of gratuity along with interest. The said authority vide impugned order dated 28.09.2018 ordered the petitioner to pay a sum of Rs.9,76,988/- along with interest @ 10% p.a. to respondent-employee. The petitioner deposited demand draft with Controlling Authority and preferred appeal before Appellate Authority which vide impugned order dated 29.10.2020 has dismissed the same. Hence, the present petition.

6. Learned counsel for the petitioner submits that indubitably as per Section 4(6) of 1972 Act, gratuity can be forfeited for the act and omission contemplated therein. As per Rule 5.7 of Punjab State Cooperative Supply and Marketing Federation Employees (Common Cadre) Service Rules, 1990 (for short '1990 Rules'), if Rules are silent on any issues or no provision has been made on a specific point, the Punjab Government Rules/Instructions are applicable and as per Rule 2.2 of Punjab Civil Service Rules (Volume-II) (for short 'PCS Rules'), if departmental or judicial proceedings are initiated against an employee during his service or within four years from the date of retirement, the proceedings may continue and gratuity can be withheld. In the case of respondent, the proceedings were initiated prior to his retirement, thus, departmental proceedings initiated before his retirement can continue and he is deemed to be in service for the purpose of those proceedings. The PCS Rules permit to withhold gratuity during the pendency of departmental proceedings, thus, petitioner has rightly withheld gratuity of the respondent. There are allegations of causing loss to the Organization and there are all probabilities of creation of financial liability against the respondent, thus, petitioner has rightly withheld gratuity of the respondent. As per Rule 6.16AA(6), Government has right to effect recovery from gratuity, in the circumstances as recoveries can be effected from an ordinary pension under Rule 2.2(b). As per proviso to Rule 2.2(b), an employee is deemed to be in service if departmental proceedings are pending against him. As departmental proceedings were pending against the respondent while he was in service, those proceedings can be concluded even after his retirement and he can be subjected to punishment of dismiss