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Judgment
A.K. Rajan, J.—Petitioner has filed the above writ petition seeking for the issuance of a writ of certiorarified mandamus calling for the
records relating to Memo No.VI/Con.273/2000/S, dated 04.11.2000 (Exhibit-A) issued by the respondent and to quash the same and
consequently, direct the respondent to disburse the retirement benefits.
The brief facts required for disposal of this writ petition are as follows:
The petitioner was employed in the services of the Chennai Post Trust as Junior Engineer with effect from 19.04.1963. During his 37 years of
service, he was promoted to various higher posts and ultimately, he was holding the post of Additional Chief Mechanical Engineer. While so, on
22.08.2000, the petitioner''s daughter-in-law lodged a criminal compliant of dowry harassment against her husband and also the petitioner herein.
Pursuant to the complaint, the petitioner was arrested by the police on 30.08.2000 and therefore was suspended from service. Thereafter, the
suspension was revoked on 4.11.2000. Subsequently, a show cause notice was issued and departmental proceedings were initiated against the
petitioner.
In the meanwhile, the petitioner has retired from service on completion of 60 years of service on 30.12.2000. Thereafter, the petitioner has not
been paid any gratuity and other pension benefits. He is being paid with only provisional pension. Therefore, the order of withholding gratuity and
other pension benefits is now challenged before this Court.
The respondent has filed a counter stating that since the charges framed against the petitioner are the same and identical both in departmental
and criminal court proceedings, it was decided that the departmental action may be kept in abeyance till the criminal case is disposed off.
Therefore, the respondent by letter dated 1.2.2001 informed the petitioner about the quantum of amount eligible to him as gratuity, which will be
settled only after completion of departmental and judicial proceedings. Pending departmental and judicial proceedings, the respondent is paying
provisional pension of Rs.5,746/- from December, 2000 onwards. This order is in conformity with Rule 56 and 56(a), under which, the
respondent has authority to continue the disciplinary proceedings even after retirement. In view of the pendency of criminal proceedings, the
petitioner has no legal right to ask for the disbursement of terminal benefits.
Mr. P.K. Gopalraj, learned counsel appearing for the petitioner submits that as per The Payment of Gratuity Act, Section 14 overrules all other
Rules, which are contrary to this Act. Therefore, no Rule or Act, which is contrary to the provisions of the Payment of Gratuity Act 1972 can
prohibit payment of gratuity under this Act. Further, he referred to Section 4(6) and has submitted that under this Section, the gratuity can be
wholly or partially forfeited only in cases where an employee''s act has caused a loss to the department. Therefore, u/s 4(6) of the Act, the gratuity
cannot be withheld. Therefore, the impugned order withholding the gratuity is illegal and is liable to be set aside.
The learned counsel appearing for the respondent contends that as per regulation 56-A(1), where a department and judicial proceedings are
initiated in respect of an employee, who has retired on attaining the age of superannuation or otherwise, he shall be paid during the period
commencing from the date of his retirement to the date on which, upon conclusion of such proceedings, final orders are passed, a provisional
pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of his
retirement, or if he was under suspension, on the date of his retirement upto the date immediately preceding the date on which he was placed under
suspension; but no Death-cum- Retirement Gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders
thereon. Therefore, in accordance with Regulation 56-A, gratuity is withheld and they are awaiting for the orders of the Criminal Court. The
learned counsel also submits that the department is prepared to give all the pension benefits including the gratuity, provided this Court passes an
order to that effect.
It is not in dispute that the petitioner has got 37 years of unblemished service on record and only because of the criminal complaint is pending
against him, the respondent is withholding the pensionary benefits. Section 4(1) of The Payment of Gratuity Act reads as follows:
Payment of gratuity:- (1) 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, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
(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.
On a reading of Sub Section (b) of Section 4 it is clear that gratuity of an employee can be withheld either partially or wholly in case of wilful
omissions or negligence causing any damage or loss or destruction of property belonging to the employer, or the employee has been terminated for
his riotous or disorderly conduct or any other act of violence on his part or if the employee had 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. Apart from this, for no other
reason, the gratuity can be withheld.
Admittedly, the criminal complaint, which is pending and the charges framed against the petitioner departmentally are identical and the criminal
charges had arisen only out of domestic quarrel, it is nothing to do with the department. Therefore, the gratuity of the petitioner cannot be withheld
even if the criminal case, which is pending against him, finally ends against him. Therefore, the gratuity is payable to the petitioner notwithstanding
the fact of pendency of the criminal proceeding and departmental enquiry. The Regulation 56-A "".... but no Death-cum-Retirement Gratuity shall
be paid to him until the conclusion of such proceedings and the issue of final orders thereon"" would mean only if such criminal proceedings or
departmental proceedings are in relation to a misconduct involving moral turpitude, in the course of employment and when the misconduct is not in
the course of employment, regulation 56-A has no application. Therefore, the provisions of Regulation 56-A does not apply to the facts of the
present case. Therefore, the impugned order withholding the gratuity payable to the petitioner is not legally sustainable and hence, the order is
quashed. The writ petition is allowed as prayed for. No costs. Consequently, connected W.P.M.P. is closed.