V.K. Shukla, J. - (1.) In the present case petitioner had been performing and discharging duties as Head Constable and has attained the age of superannuation on 31.07.2012. Petitioner while in service he alongwith other police personnel was deputed to take accused Marghob from Central Jail Nain to the Court of Chief Judicial Magistrate Saharanpur. Petitioner submits that he alongwith his associates on 14.09.1999 had taken accused Marghob from Central Jail Naini in their custody and carried him to the Court of Chief Judicial Magistrate, Saharanpur. The said accused appeared before the court of Chief Judicial Magistrate Saharanpur. Petitioner further submits that however while returning from the Court of Chief Judicial Magistrate Saharanpur to Central Jail Naini Allahabad by Swatantra Sangram Senani Express the said accused Marghob escaped from the custody of the petitioner at about 11.30 pm jumping from the running train and died and accordingly a First Information Report has been lodged by him under Sections 223/224/225 A/ 304A IPC with the GRP Aligarh against the petitioner himself and his companion 200 AP Sita Ram on 04.04.2008. Thereafter Investigating Officer, pursuant to the First Information Report submitted the charge sheet on 22.05.2008. Pursuant to the charge sheet in Criminal Case No. 4030 of 2008 (State Vs,. Mishri Lal and others) trial is going on in the court of Additional Chief Judicial Magistrate (Railway) Aligarh. In the meantime petitioner has attained the age of superannuation on 31.07.2012. Thereafter Senior Superintendent of Police Allahabad passed order dated 14/17.08.2012 by means of which gratuity amount of the petitioner has been withheld on the ground that Case Crime No. 38 of 2008 under Sections Sections 223/224/225 A/ 304A IPC is pending trial in the Court of Additional Chief Judicial Magistrate. At this juncture petitioner is before this Court.
(2.) Ms. Bramhanarayan Singh Rathore, learned counsel for the petitioner submits that gratuity of the petitioner cannot be withheld by any means for the simple reasons that even judicial proceedings which are pending therein no issue of any loss having being caused to the government due to inaction or action of the petitioner is involved in view of this gratuity amount of the petitioner cannot be withheld as such writ petition in question deserves to be allowed.
(3.) Countering the said submission, learned Standing counsel on the other hand contended that in consonance with the Government Order dated 28.10.1980 as well as Government Order dated 18.07.1980 as till date petitioner has not at all been exonerated of the criminal charge gratuity has been rightly withheld and accordingly writ petition deserves to be dismissed.;