Judgment:
D.P. Singh, J.
1. Heard learned Counsel for the petitioner and the learned standing counsel.
2. This petition is directed against an order dated 16.12.2008 by which the respondents have refused to pay gratuity to the petitioner.
3. The petitioner was initially appointed as an English Stenographer in the civil court at Azamgarh in November, 1977 and subsequently was promoted as English Stenographer Grade-I on regular basis and continued to function as Personal Assistant to the Additional District Judge. An F.I.R. under Section 307, I.P.C. was lodged against the petitioner which was registered as Case Crime No. 1060 of 2003 and since he was detained in custody on a criminal charge for a period exceeding 48 hours, he was placed under suspension vide order dated 26.8.2003. However, no departmental proceedings were initiated against him and he retired from service on 30.6.2004 on attaining the age of superannuation. When his retiral dues including gratuity was not paid he preferred Writ Petition No. 5877 of 2005 and a learned single Judge of this Court vide order dated 4.11.2008 directed the authority to decide the question of payment of gratuity within three months.
4. In pursuance thereof, by the impugned order the authority has refused to release the gratuity on the ground that a criminal trial is pending against him and therefore, in view of a Government order dated 28.7.1989 (hereinafter referred to as a Government order) and U.P. Civil Service Rules (Xth Amendment) 1983 (hereinafter referred to as the 1983 Rules) gratuity could not be released.
5. It is urged on behalf of the petitioner that the respondent No. 2 went beyond the parameters fixed by this Court in its order dated 4.11.2008 and it is further urged that pendency of the criminal trial in a private dispute of two individuals cannot be a ground for withholding gratuity.
6. Learned single Judge while disposing of Writ Petition No. 5877 of 2005 vide order dated 4.11.2008 had fixed the parameters for the authority to consider payment of gratuity in the following words:
As far as question of withholding of gratuity due to pendency of criminal case Is concerned, the petitioner crossed the age of superannuation on 30.6.2004. F.I.R. under Section 307 and other provision was registered against the petitioner in 2003. The petitioner was suspended on 26.8.2003. Till the date on which he crossed the age of superannuation, suspension of petitioner was not revoked nor the inquiry was concluded.
The question of payment of gratuity in this background is to be decided in accordance with Section 4(6) of Payment of Gratuity Act, 1972 which 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 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, provided that such offence is committed by him in the course of his employment.
Accordingly, the authority concerned is directed to decide the question of forfeiting the gratuity partially or wholly in accordance with the aforesaid provision within three months from the date of production of certified copy of this order.
7. A perusal of the impugned order shows that the authority has not at all reverted to the provisions of Payment of Gratuity Act, 1972 but has relied upon the Government order and the Rules. It is admitted to the respondents that the provision of the Government order was incorporated in the Rules which have been quoted in the impugned order as below:
1. The provisional pension shall be authorised for the period commencing from the date of retirement up to including the date on which judicial proceedings of the departmental or Administrative Tribunal, as the case may be, final orders are passed by the competent authority.
2. No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon.
8. 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 it 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 to realize 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. Co-operative Federation Ltd. and Anr. 2007 (10) ADJ 561.
9. Thus, both the arguments of learned Counsel for the petitioner are bound to be accepted.
10. For the reasons above, this petition succeeds and is allowed and the impugned order dated 16.12.2008 is hereby quashed and the respondents are directed to forthwith release the gratuity of the petitioner in accordance to law within a period of six weeks from the date of submission of a certified copy of this order.
In the circumstances of the case, no order as to costs.