Shailesh Kumar Sinha, J.:— The petitioners are aggrieved for being withholding the payment of gratuity on their superannuation in the year 2008 from the service of the Bank till conclusion of the criminal proceedings launched against them in the year 1994 which is pending for trial. Petitioners have prayed for a direction commanding the respondents to make payment of the gratuity which became admissible on superannuation as per the provision of the Payment of Gratuity Act, 1972 (hereinafter referred to as Gratuity Act).

2. The matter in issue as to whether Gratuity can be forfeited/withheld during the Pendency of the criminal proceeding under the Payment of Gratuity Act/UCO Bank (Employees) Pension Regulations of the respondent-Bank. The relevant facts of both the above cases are virtually common. However, relevant facts of the case of Shambhu Sharan Singh are being referred hereinafter for appreciating the matter in issue. Petitioner while working as an Assistant Manager at Chapra Branch of the Bank was proceeded departmentally as per charge-sheet dated 27.6.1994 for certain lapses in discharge of his duty. The departmental proceedings ended with inflicting the punishment of Censure as per order dated 29.7.1997 as contained in Annexure-1. A criminal case was also launched and prosecuted by the Central Bureau of Investigation (CBI) vide R.C Case No. 24(A)/94-PATH in the year 1994 against four officials of the Bank including the petitioner which is still pending for trial (i.e pending for more than 25 years). The petitioner attended the age of superannuation on 30th of June, 2008 and as per communication dated 21.5.2008 (Annexure-2) he was advised to submit the pension papers for settlement of his terminal dues i.e provident funds, gratuity and pension. A certificate of retirement appreciating his service to the bank is also granted on 30th of June, 2008 vide Annexure-3. However, an order granting him provisional pension vide letter dated 5.8.2008 (Annexure-4) was issued under intimation to the petitioner with further communication to the effect that he shall not be paid his gratuity till conclusion of criminal proceedings and subject to the decision of the proceeding/competent authority under Regulation 46(2) of the UCO Bank (Employees) Pension Regulations, 1995 (hereinafter referred to as Pension Regulation).

3. The case of the petitioner is that in the departmental proceeding he was not terminated from the service. The only punishment inflicted on him was of Censure that too ten years before his retirement. Accordingly, the gratuity cannot be withheld/forfeited. The Gratuity under the provisions of Payment of Gratuity Act (hereinafter referred to as the Gratuity Act) cannot be forfeited/withheld unless the concerned employee was terminated on account of serious misconduct in the departmental proceedings/judicial proceedings. Petitioner was admittedly not terminated and retired with appreciation and as such, his gratuity cannot be withheld/for feited. The further case of the petitioner is that Section 13 of the Gratuity Act prohibits attachment of the gratuity under any orders of any Civil, Revenue or Criminal Court and Section 14 manifests that the provisions of the Gratuity Act shall have effect notwithstanding anything inconsistent contained in any enactment other than the Gratuity Act.

4. The case of the respondent-Bank relying upon the provision of Regulation 46(2) of the Pension Regulations is that the gratuity is not payable during the pendency of the criminal case against him as referred to above. The further case is that gratuity payable to the employees of the Bank is more beneficial than the gratuity payable under the Gratuity Act and as such, the provisions of pension regulation is to be given effect and in terms of Regulation 46(2) where provisional pension is being paid during the pendency of departmental or judicial proceeding gratuity is not payable during the pendency of proceeding besides Bank has its own gratuity payment rules with respect to the gratuity known as UCO Bank Employees Gratuity Fund Rules (Annexure-F of the supplementary affidavit).

5. Before appreciating the rival submission of the parties it would be fruitful to quote the relevant provision, firstly the Regulation 46 of the UCO Bank (Employees) Pension Regulations, 1995

6. Regulation 46. Provisional pension.—(1) An employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or departmental proceedings are continued, a provisional pension, equal to the maximum pension which would have been admissible to him, would be allowed subject to adjustment against final retirement benefits sanctioned to him, upon conclusion of the proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld etc. either permanently or for a specified period.

(2) in such cases the gratuity shall not be paid to such an employee until the conclusion of the proceedings against him. The gratuity shall be paid to him on conclusion of the proceedings subject to the decision of the proceedings. Any recoveries to be made from an employee shall be adjusted against the amount of gratuity payable.

7. The above Pension Regulations referred to the above as stated have been made by the Bank under the provisions of Section 19(2)(f) of the Banking Companies Act. The other relevant provisions which have been referred by parties are the provisions of sub-sections 5, 6 of Section 4, and Section 5, 13 and 14 of the Gratuity Act and as such, quoted below for ready reference:—

Section 4(5) Nothing in this connection shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.

Section 4(6) Notwithstanding anything contained in sub-section (1)(a) the gratuity of an employee whose services have been terminated for any act, willful 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 more turpitude, provided that such offence is committed by in the course of his employment.

Section 5(1) Power to Exempt.— The appropriate Government may, by notification, and subject to such conditions as may be specified in the notification, exempt any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, the employees in such establishment, factory, mine, oilfield, plantation, port, railway or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this act.

(2) The appropriate Government may, by notification and subject to such conditions as may be specified in the notification exempt any employee or class of employees employed in any establishment, factory, mine, oilfield, plantation, port, railway, company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, such employee or class of employees are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.

(3) A notification issued under sub section (1) or sub-section (2) may be issued retrospectively a date not earlier than the date of commencement of this Act, but no such notification shall be issued so as to prejudicially affect the interest of any person.

Section 13. Protection of Gratuity.—No gratuity payable under this Act (and no gratuity payable to an employee in any establishment, factory, mine, oil-field, plantation, port, railway, company or shop exempted under Section 5 shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court.

Section 14. Act to override other enactments, etc.—The provisions of the Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than Act or in any instrument or contact having effect by virtue of any enactment other than this Act.

8. Mr. Abhimanyu Sharma, learned counsel appearing for the petitioners, submits that admittedly the petitioner was not terminated from the services of the Bank rather retired on attaining the age of superannuation with appreciation vide Annexures-2 and 3 and as such, in absence of any provision except under Section 4(6) of the Gratuity Act, the gratuity can neither be forfeited nor withheld. He further submits that admittedly no exemption is granted by the Central Government under Section 5 exempting the applicability of the provisions of the Gratuity Act in favour of the Bank. Learned counsel for the petitioner relying upon the aforesaid provisions of Sections 13 and 14 submits that no gratuity under the Act can be attached even by Civil, Revenue or Criminal Court in execution of any decree or orders passed by the above Courts and as such, withholding of any gratuity by the Bank contrary to the above provisions is not permissible in law and any provision in the pension regulation inconsistent with the provisions of the Gratuity Act in terms of the provisions of Section 14 can have no effect in law. It is also submitted that the provision of the Gratuity Act are more beneficial to the employees which would apparent on perusal of the Annexure-C to the supplementary counter affidavit filed on behalf of the Bank where in the given case the amount of gratuity payable under the Grautity Act was higher than the amount of gratuity payable under the Regulations of the Bank. It is accordingly prayed that respondent-Bank deserves to be directed to release the gratuity with interest as per law.

9. Mrs. Nilu Agarwal learned counsel appearing for the Bank submits that the Bank Regulations for payment of the gratuity are applicable since it being special in nature vis-a-vis the Gratuity Act which is general in nature. However, learned counsel is not in a position to state that the Bank was exempted from the applicability of the Gratuity Act in terms of Section 5 of the Act. The learned counsel also refers to the provision of UCO Bank (Employees) Gratuity Fund Rules vide Annexure-F to the counter affidavit in order to show that the aforesaid Gratuity Fund Rules of the Bank provide a more beneficial scheme vis-a-vis under the Payment of Gratuity Act 1972.

10. Upon considering the rival submissions and on perusal of their respective pleadings/affidavit, the primary question fell for consideration is as to whether the gratuity can be forfeited/withheld during the pendency of the departmental proceedings/judicial proceedings. The facts which are not in dispute are that in the departmental proceedings the petitioner was visited with the punishment of Censure vide Annexure-4 and thereafter he continued in service for another ten years till the date of his superannuation i.e 30th of June, 2008. The criminal prosecution launched against him in the year 1994 is still pending even after lapse of more than 25 years a ground for withholding the gratuity. On considering the provisions of sub section (6) of Section 4 of the Gratuity Act it would appear that the pre-condition for forfeiting the gratuity is the termination of the services of the concerned employee for the serious misconduct or termination on the ground of his riotous or disorderly conduct or any other act of violence on his part for any act which constitutes an offence involving moral turpitude committed in course of his employment. The petitioner was admittedly not terminated. As such, any of the requirement for forfeiting/withholding the gratuity in the aforesaid provision are not attracted in the case of the petitioner. There is an another aspect of the matter that under Section 13 of the Gratuity Act attachment of gratuity in any manner either forfeiting/withholding is not permissible even in execution of any decree or orders of Civil, Revenue or Criminal Court and provision of Gratuity Act prevails and has overriding effect on any provisions contained in any enactment other than Gratuity Act which are inconsistent in terms of Section 14. In this connection references may be made to a decisions of Apex Court in the case of Somprakash Rekhi v. Union of India reported in (1981) 1 SCC 449, it was held to the effect that the pension, gratuity and provident fund all the three are different and independent to each other. The provision contrary to Gratuity Act must fail as invalid in view of Section 14 of the Act. The other decision of the case of Municipal Corporation of Delhi v. Dharam Prakash Sharma as reported in (1998) 7 SCC 221 held to the effect that Payment of Gratuity Act prevails vis-a-vis CCS (Pension) Rules, 1972 adopted by Municipal Corporation.

11. The paragraph 2 of Municipal Corporation of Delhi case is quoted below:—

“The short question that arises for consideration is whether the employee of the MCD would be entitled to payment of gratuity under the Payment of Gratuity Act when the MCD itself has adopted the provisions of the CCS (Pension) Rules, 1972 (hereinafter referred to as “the Pension Rules”) whereunder there is a provision both for payment of pension as well as of gratuity. The contention of the learned counsel appearing for the appellant in this court is that the payment of pension and gratuity under the Pension Rules is a package by itself and once that package is made applicable to the employees of the MCD the provisions of payment of gratuity under the Payment of Gratuity Act cannot be held applicable. We have examined carefully the provisions of the Pension Rules as well as the provisions of the Payment of Gratuity Act. The Payment of Gratuity Act being a special provision for payment of gratuity, unless there is any provision therein which excludes its applicability to an employee who is otherwise governed by the provisions of the Pension Rules, it is not possible for us to hold that the respondent is not entitled to the gratuity under the definition of “employee” in Section 2(e) which excludes the employees of the Central Government and State Governments receiving pension and gratuity under the Pension Rules but an employee of the MCD. The MCD employees, therefore, would be entitled to the payment of gratuity under the Payment of Gratuity Act. The mere fact that the gratuity is provided for under the Pension Rules will not disentitled him to get the payment of gratuity under the Payment of Gratuity Act. In view of the overriding provisions contained in Section 14 of Payment of Gratuity Act, the provision of Gratuity under the Pension Rules will have no effect. Possibly for this reason Section 5 of the Payment of Gratuity Act has conferred authority on the appropriate Government to exempt any establishment from the operation of the provisions of the Act, if in its opinion the employees of such establishment are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act. Admittedly MCD have not taken any steps to invoke the power of the Central Government under Section 5 of the Payment of Gratuity Act. In the aforesaid premises, we are of the considered opinion that the employees of the MCD would be entitled to the payment of gratuity under the Payment of Gratuity Act notwithstanding the fact that the provisions of the Pension Rules have been made applicable to them for the purpose of determining the pension. Needless to mention that the employees cannot claim gratuity available under the Pension Rules.”

12. From the above decisions of the Apex Court it is manifest that the provision of the Gratuity Act for the purpose of payment of gratuity has to be given effect in case of any conflict with any of the provisions contained in any other Enactment, Regulation or an Act which are inconsistent with the provisions of Gratuity Act. As such, any provision with regard to the payment of gratuity in the Pension Regulations of the Bank which are inconsistent with the provision of the Act can have no effect in law and therefore, the decision of the bank withholding the payment of gratuity of the petitioner in absence of any of grounds as mentioned in sub-section 6 of Section 4 of the Gratuity Act is not sustainable in law. Moreover, the Rules of the Bank for payment of gratuity as brought by the respondent-Bank on the record vide Annexure-F to its supplementary counter affidavit virtually states only those grounds for forfeiting of the gratuity which are mentioned in Section 4(6) of the Gratuity Act. The Rule 10(a)(b) of the aforesaid UCO Bank (Employees) Gratuity Fund Rules (Annexure-F) are quoted below:—

“(a) The gratuity of an employee to all employee shall be widely forfeited if the services have been terminated on account of any misconduct resulting in financial loss or damage to the bank, shall be forfeited to the extent of the damage or loss so caused.

(b) The gratuity payable to an employee shall be wholly forfeited if the services of such employee have been terminated for any act which constitution (sic) of offence involving moral turpitude provided, that such offence is committed by him in the course of his employment.”

13. Therefore, in the opinion of this court, it is the Payment of Gratuity Act vis-a-vis Regulation 46(2) of the Pension Regulation shall have effect with respect to the withholding/forfeiting the gratuity the precondition for forfeiting/withholding the gratuity under the Gratuity Act, the employees must have been terminated on the ground mentioned therein and since petitioner is admittedly not terminated from service of the Bank the gratuity cannot be forfeited/withheld. Moreover the ground for withholding the gratuity is pendency of a criminal case which is pending for trial for more than 25 years cannot be justified in law and that too while construing the beneficial legislation in respect to the payment of gratuity of the retired employee. In view of the discussions and the reasoning in the foregoing paragraphs, the orders contained in letter no. PDD/9666/2008–09/14219 dated 5.8.2008 vide Annexure-4 and the order as per letter no. PER/ER/GF/2004/914 dated 3.8.2004 vide Annexure:3 in C.W.J.C No. 3795 of 2010 are quashed to the extent of withholding the gratuity. The respondents are hereby directed to release the gratuity payable to the writ petitioners of both the above cases expeditiously, preferably within a period of two months on receipt/production of the certified copy of this order.

14. Accordingly both the above writ applications stand allowed to the extent indicated above. No costs.