Anil Kumar, J. –

Heard Sri Ramesh Singh, learned counsel for petitioner, Sri Pankaj Patel, learned Additional Chief Standing counsel and perused the record.

2. By means of the present writ petition, the petitioner has challenged the impugned order dated 21.12.2012 passed by Superintendent of police, Unnao/O.P.No. 4 by which the post retrial dues/gratuity payable to the petitioner after his retirement on 31.12.2012 has been withheld on the ground that a criminal case is pending against him.

3. Undispute facts of the present case are that the petitioner initially selected appointed on the post of Constable in the Civil Police, State of U.P. retired from service on 31.12.2012 from the post of Sub-Inspector (Special Class), after attaining the age of superannuation.

4. On 21.12.2012, Superintendent of Police, Unnao passed the impugned order on the ground that the post retrial dues/gratuity cannot be paid to the petitioner till the disposal of criminal case No.36 of 2008 pending against him.

5. Learned counsel for petitioner has challenged the said order on the ground that petitioner while working and discharging his duties as Sub-Inspector (Special Class), made certain investigations in the capacity of Investigating Officer and on the basis of the evidence collected during the investigation against one Sri Vijay Mishra lodged an FIR against him.

6. Subsequently, Sri Vijay Kumar Mishra moved an application under Section 156(3) Cr.P.C. and on investigation a final report was submitted by the Investigation Officer on the basis of evidence collected during investigation. But, Sri Vijay Kumar Mishra, filed a protest petition, the Judicial Magistrate, Fatehpur, by order dated 18.12.2008 rejected the final report and summoned the petitioner along with others under Sections 323/504/506/342/392/427 I.P.C. Accordingly, the petitioner and other officers surrendered before the competent criminal court, released on bail.

7. Thereafter, the petitioner along with the other officers gave an application/objection dated 15.03.2011 claiming protection under Section 197 Cr.P.C. that they cannot be prosecuted unless proper sanction has not been obtained from the competent authority, rejected by order dated 28.04.2011 by Judicial Magistrate, Fatehpur, challenged by filing criminal revision No. 106/2011, rejected by order dated 02.06.2011 by Sessions Judge, Fatehpur. The said order has been challenged by filing Application under Section 482 (application under Section 482 No. 1092 of 2011, Rajendra Kuamr Tiwari Vs. State of U.P. and others) before this Court at Allahabad , on 14.10.2011, an order passed, relevant portion of the same reads as under: -

"In view of the above till the next date of listing no coercive action shall be taken against the applicants in Criminal Case No.3289 of 2009, State Vs Amar Bahadur Singh and others, under Section 323,504,506,342,395,427 IPC Police Station Husainganj, District Fatehpur."

8. In view of the said factual background, Sri Ramesh Singh, learned counsel for petitioner submitted that the impugned order dated 21.12.2012 (annexure No. 1) passed by O.P.No. 4 withholding the post retrial dues/gratuity payable to the petitioner is an action wholly illegal and arbitrary in nature and contrary to the provisions as provided under Sub-Clause 6(6) of the Payment of Gratuity Act. Because no disciplinary proceeding or departmental proceeding has ever been initiated against the petitioner till the date of his retirement, so on the basis of criminal case pending against him, the O.P.No. 4/Superintendent of Police, Unnao has got no authority to withhold the post retrial dues/gratuity payable to the petitioner in view of the law as laid down by this Court in the case of Bangali Baboo Mishra Vs. State of U.P. and others, 2003 (3) AWC 1760 , Brahma Lal Vs. Union of India, 2004 (22) LCD 486 , Amod Prasad Rai Vs. State of U.P. and another, 2009 (27) LCD 1005 ., Som Prakash Rekhi Vs. Union of India and others, 1981 (1) SCC 449 a