Hon’ble Rajan Roy, J.—Heard Shri Rajeev Singh, learned counsel for the petitioner and learned Standing Counsel for the State.

2. By means of this writ petition a challenge has been made to an order dated 17.12.2014 passed by the Superintendent of Police, Barabanki intimating the petitioner about his impending retirement on 31.12.2014 and also communicating that in view of Government Order dated 28.10.1980, provisional pension of Rs. 14,305/- and admissible allowances payable per month was being sanctioned but the gratuity would be payable only after conclusion of the criminal proceedings pending against him.

3. The challenge is primarily on the ground that there is no provision under which the gratuity of the petitioner could be withheld. Reference has been made in this regard to Regulation 351-A, 351-AA and 919-A of the Civil Service Regulations as also the provisions of the Payment of Gratuity Act, 1972 and the decision in Shyam Narayan Dubey v. State of U.P. and others, 2014 (32) LCD 381. It has been submitted that no financial loss has been caused on account of any action of the petitioner, therefore, gratuity cannot be withheld. Reliance has been placed upon the decision of the Division Bench of this Court in the case of Bengali Babu Misra v. State of U.P. and another, 2003 (50) ALR 538 as also another decision of this Court in the case of Mahesh Bal Bhardwaj v. U.P. Co-operative Federation Ltd. and another, 2007 (10) ADJ 561 (LB)(DB).

4. Learned Standing Counsel on the other hand opposed the claim of the petitioner relying upon a recent Division Bench judgment dated 17.12.2013 rendered in Special Appeal Defective No. 1278 of 2013, State of U.P. and others v. Jai Prakash.

5. Learned counsel for the petitioner also relied upon the judgment of the Division Bench dated 25.4.2014 rendered in Special Appeal Defective No. 416 of 2014, State of U.P. and others v. Faini Singh, to contend that even if gratuity could be withheld, it could not have been done mechanically but only after due application of mind to the facts of the criminal case and the alleged conduct of the petitioner in respect thereof.

6. The petitioner herein has retired from service on 31.12.2014. While in services, he was arrested by the Anti Corruption Organization for accepting illegal gratification of Rs. 1,000/- from an accused, namely, Amar Singh. As per the petitioner’s own averments made in the paragraph No. 5 of the writ petition, a criminal trial i.e. S.T. No. 60 of 2006, Case Crime No. 26 of 2006, under Section 7/13 (2) of Prevention of Corruption Act is pending in the Court of Special Judge, Anti Corruption, Gorakhpur, therefore, obviously the charge-sheet has been filed against the petitioner.

Regulation 351-A reads as under :

“351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused Government, if the pensioner is found in departmental or Judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement.”

Explanation (b) to the second proviso of Regulation 351-A, inter alia, provides as follows:

“(b) judicial proceedings shall be deemed to have been instituted:

(i)in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal Court ; and

(ii)in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a Civil Court.”

Regulation 351-AA reads as under:

“351-AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending o