Hon’ble Sunil Hali, J.—Petitioner was working as Sub-Inspector in the Police Department. During tenure of his service career a criminal case was registered against the petitioner in which petitioner has been convicted by the learned Trial Court. On account of filing of the criminal case, he was placed under suspension and had retired from the service after attaining the age of superannuation on 30.4.2005 without initiation of any departmental proceedings. When his retiral dues including Gratuity was not paid, he preferred a Civil Misc Writ Petition No. 25431 of 2006 which was disposed of vide order dated 9.5.2006 with a direction to consider the claim of the petitioner expeditiously. In pursuance to the said direction, respondents have refused to release the gratuity vide order dated 13.8.2006 on the ground that a criminal trial is pending against the petitioner therefore, in view of the G.O. dated 28.10.1980 his gratuity could not be released. It is this order which is subject matter of challenge before this Court.

2. It is contended by learned counsel for the petitioner that the pensionary benefits including Gratuity, pension etc. of the petitioner is not being released without any rhymes or valid reasons as the petitioner had retired after attaining the age of superannuation on 30.4.2005 and till then neither the suspension of the petitioner has been revoked nor any inquiry was conducted against the petitioner.

3. Stand of the respondents is that the petitioner being convict of Sessions Trial N0. 329 of 1990, under Sections 147, 149/304, 323, 210 IPC will not be entitled to any pensionary benefits including Gratuity etc. However, he has been released his inerim pension to the tune of Rs. 7700/-.

4. Heard learned counsel for the parties and perused the material on record.

5. The provision of payment of Gratuity has been provided under Section 4 of the Act,. Section 4 (1) says that Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years-(a) on his superannuation; (b) on his retirement or resignation; or (c) on his death or disablement due to accident or disease; wherein sub Clause (6) spells out the conditions under which gratuity of an employee can be stopped or withheld. Section 4(6) of Payment of Gratuity Act 1972 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.

6. While examining the import of the aforesaid section, it contemplates the following conditions on which Gratuity can be withheld (a) if the order of termination is based upon any act, wilful omission or negligence causing any damage or loss to the property belonging to the employer; (b) if the services of an employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part; (c) if the employee is found guilty of moral turpitude provided that said offence has been committed during tenure of his service career. These are the only conditions which empowers the respondents to withhold the Gratuity of the petitioner. In the present case what has been alleged is that the petitioner is convict as such his gratuity cannot be released in his favour while none of the conditions as aforesaid do exist as the petitioner’s servic