Hon’ble D.P. Singh, J.—Heard learned counsel for the petitioner and the learned Standing Counsel.

2. This petition is directed against an order dated 16.12.2008 by which the respondents have refused to pay gratuity to the petitioner.

3. The petitioner was initially appointed as an English Stenographer in the Civil Court at Azamgarh in November, 1977 and subsequently was promoted as English Stenographer Grade-I on regular basis and continued to function as Personal Assistant to the Additional District Judge. An F.I.R. under Section 307, I.P.C. was lodged against the petitioner which was registered as Case Crime No. 1060 of 2003 and since he was detained in custody on a criminal charge for a period exceeding 48 hours, he was placed under suspension vide order dated 26.8.2003. However, no departmental proceedings were initiated against him and he retired from service on 30.6.2004 on attaining the age of superannuation. When his retiral dues including gratuity was not paid he preferred Writ Petition No. 5877 of 2005 and a learned Single Judge of this Court vide order dated 4.11. 2008 directed the Authority to decide the question of payment of gratuity within three months.

4. In pursuance thereof, by the impugned order the Authority has refused to release the gratuity on the ground that a criminal trial is pending against him and therefore, in view of a Government order dated 28.7.1989 (hereinafter referred to as a Government order) and U.P. Civil Service Rules (Xth Amendment) 1983 (hereinafter referred to as the 1983 Rules) gratuity could not be released.

5. It is urged on behalf of the petitioner that the respondent No. 2 went beyond the parameters fixed by this Court in its order dated 4.11.2008 and it is further urged that pendency of the criminal trial in a private dispute of two individuals cannot be a ground for withholding gratuity.

6. Learned Single Judge while disposing of Writ Petition No. 5877 of 2005 vide order dated 4.11.2008 had fixed the parameters for the Authority to consider payment of gratuity in the following words :

“As far as question of withholding of gratuity due to pendency of criminal case is concerned, the petitioner crossed the age of superannuation on 30.6.2004. F.I.R. under Section 307 and other provision was registered against the petitioner in 2003. The petitioner was suspended on 26.8.2003. Till the date on which he crossed the age of superannuation, suspension of petitioner was not revoked nor the inquiry was concluded.

The question of payment of gratuity in this background is to be decided in accordance with Section 4(6) of Payment of Gratuity Act, 1972 which is quoted below :

(6) Notwithstanding anything contained in sub-section (1),.................

(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;

(b) the gratuity payable to an employee may be wholly or partially forfeited.

(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act violence on his part, or

(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.

Accordingly, the authority concerned is directed to decide the question of forfeiting the gratuity partially or wholly in accordance with the aforesaid provision within three months from the date of production of certified copy of this order.”

7. A perusal of the impugned order shows that the Authority has not at all reverted to the Provisions of Payment of Gratuity Act, 1972 but has relied upon the Government order and the Rules. It is admitted to the respondents that the provision of the Government order was incorporated in the Rules which have been quoted in the imp