SURENDRA VIKRAM SINGH RATHORE, J. - (1.) BY means of this petition, the petitioner has prayed for issuing a writ of certi orari by quashing the order dated 11.9.2008 and 27.7.2005 passed by Superintendent of Police ( M) Intelligence Head Quarter,Lucknow. Vide order dated 27.7.2005, the the second higher pay scale was not sanctioned to the petitioner on the ground of pendency of a criminal case being case crime No. 415 of 1996 under sections 420,467, 471,120 B, 504 and 506 IPC relating to police station Maha Nagar. During the pendency of the aforesaid case in the court, the petitioner retired on31.12.2007.
(2.) THE grievance of the petitioner is that on 11.9.2008 only an interim pension was sanctioned in his favour. Because of the pendency of the aforementioned criminal case all other retiremental dues,including gratuity were with held. During the course of arguments, the grievance of the petitioner was only to the extent that the gratuity and the other retiremental benefits could not have been withheld because of the pendency of a criminal case which had no relation with the department. It is submitted on behalf of the petitioner that the aforementioned criminal case is a matter between the two parties, no loss of any nature was occasioned to the department because of the said alleged offence. Learned counsel for petitioner has placed reliance on several case laws and has argued that the stoppage of gratuity and other retiremental dues cannot be withheld simply because a criminal case is pending. Such an order as submitted by learned counsel for the petitioner, is, absolutely illegal and arbitrary. Learned counsel for opposite parties has submitted that vide G.O. No.3 - 1679/Das -80 -909 -79 dated 28.10.1980 it was provided that during the pendency of criminal proceedings only interim pension shall be released and the other retiremental benefits including gratuity shall not be paid and therefore, the opposite parties have acted in accordance with the aforesaid G.O. and their act cannot be said to be illegal. The submission of the learned counsel for petitioner is that the aforementioned G.O. has been misread by the authorities concerned. The aforesaid G.O. relates only to the departmental judicial proceeding, or vigilance proceeding or service tribunal proceeding and it does not cover the criminal proceedings, which are not connected with the department. It is further argued on behalf of the petitioner that mere pendency of criminal proceeding,cannot be a ground to withheld the retiremental dues because if in the trial, the case is proved against the petitioner then he shall be punished in accordance with law. He cannot be punished by withholding his retiremental dues. Learned counsel for opposite party laid emphasis upon the G.O. Dated 28.10.1980 in which in para 2 provisions have been made regarding payment of interim pension. A bare perusal of the aforesaid para of the aforementioned G.O. reveals that it relates to such government servant against whom some departmental judicial or administrative inquiry is pending on the date of retirement. But it nowhere provides that if criminal proceedings are pending even then the said G.O. would be applicable. Suffice, it would be to mention that such a provision could not have been made for the simple reason that unless departmental proceedings have been initiated or some judicial or administrative proceedings have been initiated for the purpose of determining the guilt of the government servant during the course of his service, mere pendency of a criminal proceedings cannot be a ground for taking any action against the petitioner with respect to payment of his post retiral dues.
(3.) LEARNED counsel for petitioner has placed reliance on a Division Bench pronouncement of this Court in the case of Bangali Babu Misra vs. State of U.P. and others reported in 2003 (3) AWC 1760 (LB).In the said case the petitioner was caught in a trap case and subsequently he was suspended and in that case the court directed that the entire post retiral dues of the petitioner including pension, gratuity, leave en -cashment, group insurance be paid to the petitioner. Section 4 (6) of the Payment of Gratuity Act, 1972 reads as under, 6. Notwithstanding anything contained in sub section (1), - (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employee [may be wholly or partially forfeited] - (1) if the services of such employee have been terminated for his riotous or disorderly conduct of any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude provide that such offence is committed by him in the course of his employment. ;