Hon’ble Mrs. Sunita Agarwal, J.—Heard learned counsel for the parties and perused the record.

2. The present writ petition is directed against the order dated 12.11.2013 passed by the respondent No. 2 namely Superintendent of Police, District Jalaun in holding that the petitioner is entitled for only interim pension on account of pendency of criminal case.

3. The submission of learned counsel for the petitioner is that he was selected and appointed as Constable Driver in the Police Department on 18.6.1975. He was honestly performing his duties and retired on 30.9.2013. The post retiral benefits of the petitioner have not been paid in full. No gratuity has been paid and he is getting interim pension only.

4. It appears that on 13.11.1998 the First Information Report was registered against the petitioner and 12 others bearing Case Crime No. 118 of 1998 under Section 342, 217, 218, 120B, 195, 467, 468 and 471 I.P.C., Police Station Majhagawa, District Hamirpur. After retirement, the petitioner represented the authorities to pay him gratuity and full pension. The representation was rejected vide order dated 12.11.2013, hence this writ petition.

5. The submission is that the sole ground of pendency of criminal proceedings/judicial proceedings cannot be a valid ground for withholding gratuity. The Apex Court and this Court has held time and again that gratuity cannot be withheld. Only in cases where the proceedings are pending against the incumbent are going to culminate giving rise to the situation that the Government would suffer loss on account of conduct of the employee, in other words, where there is any allegation of loss to the Government and some recovery is to be made from the incumbent, the gratuity can be withheld.

6. Reliance is placed upon the judgment of this Court in Shiv Sewak Prasad Mishra v. State of U.P. and others, 2015(2) ADJ 393 and in Bhagwat Prasad Yadav v. State of U.P. and others, 2014(1) LBESR 928 (All)(LB).

7. Learned Standing Counsel, on the other hand, placing reliance upon the judgment of this Court in (State of U.P. and others v. Jai Prakash) being Special Appeal Defective No. 1278 of 2013 submits that the gratuity can be withheld in a case where judicial proceedings are pending on the serious charges against employee.

8. The legal position for withholding gratuity during the pendency of the judicial proceedings is considered by two Division Benches of the Court which are as follows :

9. The Division Bench in the case of State of U.P. and 2 others v. Jai Prakash (Supra) had held that the Government has the power to withhold or withdraw the pension and the power to recover any pecuniary loss suffered.

10. Regulation 351-A of the Civil Services Regulation postulates that there has to be a determination in departmental or judicial proceedings.

11. Regulation 351-AA of the Civil Services Regulation deals with the situation where a departmental or judicial proceeding or any enquiry by the Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement, a provisional pension under Regulation 919-A may be sanctioned. Regulation 351-AA stipulates that a provisional pension would be admissible and the modalities for the payment of a provisional pension are prescribed under Regulation 919-A. The provisional pension is to be authorized for the period of commencement from the date of retirement upto and including the date of conclusion of departmental or judicial proceedings or, the enquiry by the Administrative Tribunal, as the case may be.

12. Regulation 919-A (3) contains the expression “prohibition on the payment of death-cum-retirement gratuity to a Government Servants” until the conclusion of the department proceeding, judicial proceeding or, an enquiry by the Administrative Tribunal, as the case may be.

13. Regulation 41 provides that except when the ‘pension’ is used in contradistinction to gratuity, ‘pension would include gratuity’.

14. Consequently, Regulatio