Mahesh Chandra Tripathi, J. - (1.) HEARD learned Counsel for the petitioner and learned Standing Counsel for the State. By means of present writ petition, the petitioner has prayed for quashing the impugned order dated 6.2.2002 (Annexure No. 2 to the writ petition), by which gratuity of the petitioner was not paid and only interim pension was issued.
(2.) LEARNED Counsel for the petitioner states that petitioner was working as constable in civil police. During the tenure of service career a criminal case No. 107/90 under sections 147, 302, 201, I.P.C., Police Station, Bairiya, District Ballia, was registered and the said case is reported to be pending against the petitioner and meanwhile petitioner was retired on 29.2.2000 and as per the record, there was no departmental proceeding against the petitioner. When the petitioner has not been paid gratuity and other retiral dues had filed Civil Misc. Writ Petition No. 39938 of 2001. The said writ petition was disposed of by this Court vide order dated 3.12.2001 directing the answering respondent to decide the claim of the petitioner strictly in accordance to the law. In pursuance to the said direction the respondent had refused to release the gratuity vide order dated 6.2.2002 (Annexure No. 2 to the writ petition), on the ground that criminal trial is pending against the petitioner, therefore, in view of the Government Order dated 28.10.1980, the gratuity of the petitioner cannot be released. The said order dated 6.2.2002 was the subject -matter to challenge before this Court. Learned Counsel for the petitioner states that petitioner is liable to receive the complete pensionery benefits including full gratuity, pension etc. and the answering respondent in the garb of Government Order dated 28.10.1980, cannot stop payment of gratuity and full pension of the petitioner, specially in the background where the petitioner had not faced any department inquiry. Where as stand taken by the respondent that petitioner was subjected to criminal proceeding, which is reported to be pending. Therefore, in view of the Government Order dated 28.10.1980, petitioner is not entitled for payment of gratuity as well as full retiral dues. The relevant portion of the Government Order dated 28.10.1980 is quoted below: Heard learned Counsel for the parties and perused the record. The provision of Payment of Gratuity has been provided under section 4 of the Payment of Gratuity Act, 1972. Section 4(1) says that Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years -(a) on his superannuation; (b) on his retirement or resignation; or (c) on his death or disablement due to accident or disease; wherein sub -clause (6) spells out the conditions under which gratuity of an employee can be stopped or withheld. Section 4(6) of Payment of Gratuity Act, 1972 is quoted below: "(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. (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act 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, provided that such offence is committed by him in the course of his employment."
(3.) WHILE examining the import of the aforesaid section, it contemplates the following conditions on which Gratuity can be withheld (a) if the order of termination is based upon any act, wilful omission or negligence causing any damage or loss to the property belonging to the employer; (b) if the services of an employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part; (c) if the employee is found guilty of moral turpitude provided that said offence has been committed during tenure of his service career. These are the only conditions which empowers the respondents to withhold the Gratuity of the petitioner.;