By the Court.—The petitioner having been denied the payment of gratuity after he reached the age of superannuation on 31.7.2006, has approached this Court under Article 226 of the Constitution, praying for the release and payment of the same alongwith earned leave encashment, security deposit with an interest at the rate of 18% per annum.

2. The petitioner was appointed on 7.1.70 in the U.P. Co-operative Federation Ltd. After putting in 36 years of unblemished service, he retired on attaining the age of superannuation.

3. As per the PCF Service Regulations and provisions of Payment of Gratuity Act, 1972, post retiral dues should have been paid immediately after retirement. It is the admitted case of both the sides that post retiral dues were withheld because of the pendency of criminal case pending before the Chief Judicial Magistrate, Meerut, in which charge-sheet has been issued, in which name of the petitioner has been shown as accused.

4. It is also the case of the petitioner that incident relates to the year 1978, namely, there were some audit objections for the year 1977-78 and on the basis of the same an F.I.R. was lodged. According to the petitioner, two main persons who were found guilty for any such lapse, were Manohar Lal and Som Dutt Tyagi, whose names find mention in the audit objections and against whom also charge-sheet has been issued. The petitioners name does not find place in the audit objections, as he was not looking after the job of cloth business, for which the auditors had pointed out the anomalies. There were certain other persons, who were associated with the said work and their names also find place in the audit objections.

5. It is not relevant to enter into the question as to whether the petitioner was in any way connected with the objections which were raised by the audit party or that whether he can be held guilty for any criminal offence, for which a case is pending before the criminal Court, as the fact of the matter is that in view of the respondents own case, the gratuity has not been released or paid to the petitioner, because of pendency of the aforesaid criminal case number 67A/83.

6. The learned Counsel for the petitioner Sri Manish Kumar has submitted that pendency of criminal proceedings/trial in itself, cannot be a ground for withholding the gratuity and that gratuity in the instant case, is governed by the provisions of Payment of Gratuity Act, 1972, which specifically deal with the situation, in which the gratuity can be stopped and since the petitioners case does not fall under any of the aforesaid conditions, therefore, gratuity could not have been stopped.

7. Sri Dhirendra Singh, holding brief of Sri Raghvendra Singh, in response, submitted that since charge-sheet has been issued in criminal case against the petitioner, therefore, though in the departmental proceedings initiated by the Federation, the petitioner has been punished by awarding an adverse entry but the punishment order also says that, on the outcome of the criminal proceedings and as per its result, he would be further punished.

8. However, respondents could not show that there is any provision under service rules or in the Government orders applicable to the Federation, for withholding gratuity during pendency of criminal case and moreso, in violation of provisions of Payment of Gratuity Act, 1972.

9. A Division Bench of this Court in which one of us (Pradeep Kant, J.) was a member, had an occasion to consider the similar question in Writ Petition No. 1189 (SB) of 2002, Bangali Babu Misra v. State of U.P. and others, decided on 5.12.02, where because of pendency of criminal case with respect to a trap case, post retiral dues including gratuity were withheld. In that case, the learned Standing Counsel placed reliance upon a Government order dated 28.7.89 and in particular para 3(3) of the said Government order, saying that it permits the withholding of retiral dues during pendency of the criminal proceedings.