Hon’ble Suneet Kumar, J.—Heard learned counsel for the petitioner and Sri V.C. Dixit appearing for the respondents.

The writ petition was filed by Kishan Pal Pathak employee of the Uttar Pradesh Road Transport Corporation challenging the order dated 5.3.2009 passed by the Assistant Regional Manager, Hathras, making deductions from the gratuity. During the pendency of the writ petition Kishan Lal Pathak died and his legal heirs have been brought on record. For the sake of convenience, the deceased is being referred to as the “petitioner”.

2. The petitioner had joined the corporation on 1.7.1970 and on 1.4.1983 was made permanent and retired on attaining the age of superannuation on 30.6.2008. Prior to his retirement, a first information report was lodged against several persons including the petitioner on 5.10.2007 and a parallel disciplinary proceeding was initiated, a charge-sheet was issued on 15.1.2008, the petitioner submitted his reply on 12.6.2008 and during the pendency of the criminal proceedings as well as disciplinary proceedings, the petitioner superannuated on 30.6.2008 and after superannuation, the order dated 6.2.2009 was passed to culminate the disciplinary proceedings and to recover Rs. 37,274/- from the gratuity for causing loss to the property of the corporation.

3. Submission of learned counsel for the petitioner is that the service conditions of the petitioner is governed under U.P. Road Transport Corporation (Employees other than Officers) Service Regulations, 1981 and as per the regulation, there is no provision for continuing the proceedings beyond retirement and further there is no provision to withhold the gratuity merely on the pendency of departmental/criminal proceedings, lastly, it is submitted that under sub-clause (6) of Section 4 of the Payment of Gratuity Act, 1972, no recovery can be made against the petitioner, as his services was not terminated by the corporation for causing loss nor was the petitioner convicted. In support of his submission learned counsel for the petitioner relied upon the case of State of Jharkhand and others v. Jitendra Kumar Srivastava and another, 2013(3) ESC 554 (SC), Jaswant Singh Gill v. Bharat Coking Coal Limited, 2006 Law Suit (SC) 994, Suresh Kumar Gadi v. State of U.P. and others, 2012(1) ADJ 729 (DB).

4. In rebuttal Sri V.C. Dixit submits that the order imposing recovery is appealable under Regulation 69 of the Regulations and the petitioner though had superannuated, the corporation cannot terminate his services but was entitled to make recovery from the gratuity.

5. Rival submission fall for consideration.

The Supreme Court in the case of Jaswant Singh Gill v. Bharat Coking Coal Limited, 2006 Law Suit (SC) 994, while dealing with the case of a delinquent employee, who was issued charge-sheet for shortage of stock of coal and during the pendency of the departmental proceedings was allowed to retire and was denied payment of gratuity amount under the Payment of Gratuity Act, 1972 for the purpose of making recovery in the event recovery is directed in the disciplinary proceedings. The question before the Apex Court was as to whether the service rules shall prevail over the Act and Rule 27 provided for making recovery from the pay or gratuity for pecuniary loss caused to the company.

6. The Supreme Court held that the rules framed by the Coal India Limited are not statutory rules. The provisions of the Act, therefore, must prevail over the rules. Paragraphs 9 and 10 are as follows :

“9. A statutory right accrued, thus, cannot be impaired by reason of a rule which does not have the force of a statute. It will bear repetition to state that the Rules framed by Respondent No. 1 or its holding company are not statutory in nature. The Rules in any event do not provide for withholding of retrial benefits or gratuity.

10. The Act provides for a closely neat scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the