Hon’ble Suneet Kumar, J.—Heard Shri Adarsh Singh holding brief of Shri I.R.Singh and Shri Shivam Yadav appearing for Power Corporation.

2. The petitioner was working as Junior Engineer with the respondent Power Corporation since 1.4.1975, retired on 30.4.2009 on attaining the age of superannuation. During service, petitioner was prosecuted in Criminal Case under Section 7/13(2) read with Section 13(1)(D) of Prevention of Corruption Act, 1988.

3. Pursuant thereof, no disciplinary proceedings was initiated against the petitioner. In the trial petitioner was acquitted on 14.3.2005.

4. Aggrieved, Government Appeal No. 2602 of 2002 (State of U.P. v. Rajeev Sharma) was filed which was admitted.

5. On superannuation on 30.4.2009 the petitioner approached the respondent authorities for retiral benefits including pension, when no decision was taken, the petitioner approached the Court by filing writ petition No. 55327 of 2011 (Rajiv Sharma v. State of U.P. and others) which was disposed of by order dated 26.9.2011 directing the authorities to decide the petitioner’s representation.

6. By the impugned order dated 22.11.2012 passed, pursuant to the order of the Court, the Chief Engineer (Jal Vidyut), U.P Power corporation Ltd., respondent No. 3 rejected the claim of the petitioner solely for the reason that Criminal Appeal, against acquittal is pending, the retiral dues shall, thus, be paid after decision in the Criminal Appeal No. 2602 of 2002.

7. The submission of the learned counsel for the petitioner is that the petitioner was acquitted in the criminal case, during the pendency of the trial or appeal, the respondent authorities did not initiate any disciplinary proceedings under the rules, the petitioner having since retired, on attaining the age of superannuation, there being no provision under the rules to withhold the petitioner’s post retiral benefits pending criminal appeal, thus, the petitioner is entitled to the post retiral dues.

8. In support of his submission, the learned counsel for the petitioner has relied upon State of Jharkhand and others v. Jitendra Kumar Srivastava and another, 2013(3) ESC 554 (SC) and decision dated 1.8.2014 rendered in Writ Petition No. 19693 of 2012 (Amir Lal v. Chief Election Officer and others).

9. In rebuttal Shri Shivam Yadav, learned counsel for the respondent Power Corporation submits that since judicial proceedings has not culminated, the state appeal is pending hence the retiral benefits cannot be released even though the petitioner has been acquitted in the criminal trial.

10. Rival submissions fall for consideration:

11. Supreme Court in State of Jharkhand and others v. Jitendra Kumar Srivastava and another, 2013(3) ESC 554 (SC), considered as to whether in absence of any provisions in the pension rules, State Government can withhold a part of pension or gratuity during the pendency of the departmental or disciplinary proceedings. Paragraph 11 is as follows :

“11. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending.”

12. Division Bench of this Court in State of U.P. and others v. Jai Prakash, (2014) 1 ADJ 207, relying upon Supreme Court judgment held that pension would include gratuity and the gratuity cannot be withheld merely due to pendency of criminal case unless there is a specific provision under the Rules. The Court was dealing with the provisions of Civil Service Regulations, 1920, which provided for withholding of gratuity Paragraphs 8, 9 and 10 are as follows :

“8. The learned Single Judge, in the present case, has proceed