Devendra Kumar Arora, J. - (1.) BY means of present writ petition, the Petitioner has challenged the impugned order dated 30.7.2010, passed by opposite party No. 4, as contained in Annexure No. 1 to the writ petition by which Petitioner instead of pension, is being paid only provisional pension and his gratuity and his other retiral dues have been withheld on the ground that while he was posted as Constable at Bahraich, a criminal case was registered against him and the matter is being investigated by the CBCID at Gorakhpur.
(2.) LEARNED Counsel for the Petitioner while placing reliance upon a decision of this Court, reported in, (2009) 4 UPLBEC 3045, Radhey Shyam Shukla v. State of U.P. and Ors., submitted that on account of pendency of criminal investigation, Petitioner's retiral dues including gratuity cannot be withhold. Para 8 of the said judgment reads as under: Normally, as urged by the learned Standing Counsel, "Judicial Proceedings" would also include a criminal trial. However, the meaning ascribed to a word has to be given keeping in mind the intention of the legislature and the object which is sought to achieve while using it. A reading of the aforesaid provision shows that "judicial proceeding" has been used for the purpose of any administrative action or which may have given rise to a "judicial proceeding" relating to the conduct of the Government servant. One of the main object of withholding gratuity is to compensate the Government the loss caused by the Government servant in his functioning as such. In the present case, the criminal case relates to two individuals and the trial cannot in any manner fix responsibility of any loss to the Government. In fact, there is no case set up in the counter affidavit that the decision in the pending criminal trial between two individuals would in any way enable the Government realise any alleged loss. In fact, no loss has even been attributed to the Petitioner. A Division Bench of this Court in the case of Bangali Babu Misra v. State of U.P. and Ors. : 2003(3) AWC 1760, has considered the effect of the Government Order which has been incorporated in the Rules and has held that mere pendency of criminal proceedings would not authorise withholding of post retiral benefits including gratuity. The aforesaid decision has been followed subsequently in the case of Mahesh Bal Bhardwaj v. U.P. Cooperative Federation Ltd. and Ors., 2007 (1) ADJ 561.
(3.) LEARNED Standing Counsel submitted that chargesheet has been filed against the Petitioner on 24.5.2002 and there is no illegality in withholding the retiral dues of the Petitioner.;