Dismissed

R.R. Dubey v. Cg State Power Holding Co.Ltd. and Ors.

Chhattisgarh HC12 Aug 2024WPS/1186/2011

Case brief

AI extract

What is this about?

The Chhattisgarh High Court rejected a retired engineer's claim for full gratuity, holding that pending criminal appeals prevent final payment under Rule 64 of the Chhattisgarh Civil Services (Pension) Rules, 1976, directing the authorities to decide the claim upon the criminal appeal's conclusion.

What did the court decide?

Petition dismissed; respondent authorities directed to decide claim after conclusion of pending criminal appeal.

R.R. Dubey Vs Cg State Power Holding… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

2024:CGHC:30523

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 1186 of 2011

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R.R. Dubey, S/o Late R. Dubey, aged about 65 years, occupation – Retired chief Engineer (CC) C.S.E.B., R/o MIG 45, Katanga Colony, Cant, Jabalpur (M.P.)

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... Petitioner

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versus

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Chhattisgarh State Power Holding Co. Ltd. Through its Chairman Dangania, Raipur (C.G.)

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The Additional Secretary(Deleted vide Order dated 24.01.2012)

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The C.M.D. Chhattisgarh State Power Holding Co. Ltd. Dangania, Raipur (C.G.)

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The Executive Director (Finance) Chhattisgarh State Power Holding Co. Ltd. Dangania, Raipur (C.G.)

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The Executive Director (H.R.) Chhattisgarh State Power Holding Co. Ltd. Dangania, Raipur (C.G.)

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The Manager Accounts (Distribution), Chhattisgarh State Power Holding Co. Ltd. Dangania, Raipur (C.G.)

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... Respondents

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(Cause Title is taken from Case Information System)

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For Petitioner	: Dr. Nirmal Shukla, Senior Advocate along with
	Mr. N. Naha Roy, Advocate
For Respondents	: Mr . Abhishek Sinha, Senior Advocate along with Mr. Ghanshyam Patel, Advocate

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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1 3.08.2024

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By way of this petition, the petitioner has sought the following relief(s):-

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“10.1 For grant of stagnation allowance with interest from

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13th March, 2005.

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10.2 For revision of pay scale with interest from 01.12.2005.

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10.3 For payment of gratuity at per latest provision with interest of 18% P.A.

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10.4 For computation of final pension with revision and its arrears with interest.

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10.5 Bonus up to Dec. 2005 and difference of pay during suspension and arrears due to increments with interest.”

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At the very outset, Dr. Shukla submitted that he is pressing relief 10.3 only with regard to the payment of gratuity as per the latest provision with the interest @ 18% P.A.

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The facts of the present case are that the petitioner, who was holding the post of Chief Engineer under the respondents, retired from services on 31.12.2005 on account of superannuation. Prior to that, an FIR was registered against him on 29.03.2000 for the offence punishable under the provisions of Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 and Sections 193 and 196 of the IPC. Thereafter, the chargesheet was filed in the criminal case on 26.02.2006. A departmental enquiry was initiated against the petitioner on the following allegations:-

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CHARGE NO-I

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Shri R.R.Dubey, Chief Engineer on (C/C) while working as Chief Engineer (S&P) Raipur from 10.04.2003 to 27.09.2004 committed serious irregularities and grave misconduct while processing the case of procurement of power transformers under Tender. Specification. No. 55 as under :-

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"Shri R.R.Dubey had placed II nd phase purchase order No.0203/CE(S&P)/SEP-III/ASEPIV/695 dtd. 22.12.03 (Rs.1357.80 lakhs) on M/s. Accurate Transformers (P) Ltd, Delhi against TS-55 for procurement of 40 Number. 5 MVA & 100 Number. 3.15 MVA power transformers without obtaining approval of competent authority. Knowingly that the said procurement of power transformers requires approval of competent authority and thereby intentionally exercised

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powers not vested on him which reflects his conduct and thereby rendered himself liable for disciplinary action for misconduct under rule 3(i) (ii) (iii) of C.G. service conduct rules 1965.

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CHARGE NO-II

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Shri R.R. Dubey, while working and performing his duty as Chief Engineer (C/C) between 10.04.2003 to 27.09.2004 committed further gross irregularities and misconduct by waiving the security deposit Clause-2 of purchase order No. 02-03/CE(S&P)/SEP3/ASEP-IV/695 dtd. 22.12.2003. As per clause-2 of purchase order, 10% security deposit was required to be deposited by M/s. Accurate Transformers (P) Ltd, Delhi, in the form of Demand Draft/BG to cover up the performance guarantee of the materials supplied against the order for due and faithful performance of the materials. Thereafter, as permitted by Shri R.R.Dubey the then C.E.(S&P), the security deposit was deducted from the bills of M/s. Accurate Transformers (P) Ltd, Delhi amounting to Rs.65.73 lakhs.

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It is learnt that as per letter No. 02-03/SEP-III/ASEP-IV/2329 dtd. 12.05.2004, the security deposit clause-2 has been amended by Shri R.R.Dubey without any prior approval of the competent authority, relevant portion of which is reproduced below:-

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"Accordingly Security Deposit Clause of this office order No. 02-03/SEP- II/ASEP-IV/695 dtd. 22.12.2003 for supply of 5 & 3.15 MVA,33/11 KV Power Transformers stands amended to the following extent:-

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"The permanent security deposit of Rs.5 lacks furnished by you and accepted by is office shall cover the guarantee of the material supplied against this order for due d faithful performance of the material.

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Due to said waival amendment in security deposit Clause-2 the deposit of 10% deducted from the bills of M/s. Accurate Transformers (P) Ltd, Delhi, has been unauthorizedly refunded to the said firm and that too without approval of the competent authority.

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Thus, Shri R.R.Dubey, Chief Engineer on C/C (U/S) acted beyond his powers and against the Board’s and financial interest only to give undue favour to the firm with malafied intentions and as such committed grave misconduct and irregularities in not maintaining absolute integrity and devotion to his duties and thus acted otherwise in exercise of his power conferred on him, which is the breach of the Rule 3(i)(ii)(ii) of C.G. Civil Services (Conduct) Rules, 1965 and thus made himself liable for disciplinary action under the above rules.

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The petitioner retired from services on 31.12.2005. A departmental enquiry

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was conducted and finally, the petitioner was exonerated from the charges

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vide Order dated 10.03.2011 by the disciplinary authority till then retiral dues including gratuity had not been paid to the petitioner. The petitioner was convicted in a criminal case by the competent Court on 27.07.2016 and Criminal Appeal No. 2100 of 2016 is pending consideration before the High Court of M.P. The petitioner filed this petition on 28.02.2011 as till date the amount of gratuity payable to the petitioner has not been paid.

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Learned Senior Counsel appearing for the petitioner submitted that when the petitioner retired on 31.12.2005, no conviction was recorded against him. He further submitted that in the departmental enquiry which was initiated in the month of March, 2005, he was exonerated by the disciplinary authority vide Order dated 10.03.2011. He also submitted that a promise was made by the Executive Director (H.R.), CSPHCL, Raipur dated 08.02.2011 to the effect that the decision on gratuity would be taken after the finalization of the departmental enquiry, which was at the final stage at that time. It is further contended that after the conclusion of the departmental enquiry, the respondent authorities ought to have made payment of gratuity strictly in accordance with the provisions of the CG. Civil Services (Pension) Rules, 1976 (hereinafter referred to as “the Rules, 1976”); particularly, Rule 64. It is also contended that the department has made payment of gratuity to similarly situated employees and he placed Annexure P/1 on record in this regard. In support of his arguments, he placed reliance on the following judgments:-

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i. Judgment passed by the Hon’ble Supreme Court in the matter of Jorsingh Govind Vanjari vs. Divisional Controller, Maharashtra, Jalgaon Division, Jalgaon, (2017) 2 SCC 12;

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ii. Judgment passed by the High Court of Allahabad (at Lucknow) in

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the matter of Bangali Babu Mishra vs. State of Uttar Pradesh, LAWS(ALL) 2002 12 129; and

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iii. Judgment passed by the Coordinate Bench in the matter of Angad Prasad Vishwakarma vs. The State of Chhattisgarh and others, WPS No. 463 of 2017.

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On the other hand, Mr. Abhishek Sinha, the learned Senior Advocate appearing for the respondents would oppose the submissions made by Dr. Shukla. Mr. Sinha submitted that the FIR was registered against the petitioner prior to the initiation of departmental enquiry for the commission of an offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 193 and 196 of the IPC. He further submitted that when the petitioner retired, though the departmental enquiry was pending, at the same time, a criminal case was also pending. It is further contended that the petitioner was exonerated in the departmental proceeding, but he was convicted by the Criminal Court for the commission of an offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 193 and 196 of the IPC vide judgment dated 27.07.2016. He referred to Rule 64(1)(c) of the Rules, 1976 which forbids payment of gratuity in case of pendency of either department enquiry or criminal case and the gratuity would be payable to the Government Servant or employee upon conclusion of departmental or judicial proceedings. He further referred to Rule 3(n) of the Rules, 1976 which provides for “Pension”. It includes gratuity except when it is used in contradistinction to gratuity.

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He further argued that earlier the petitioner had claimed the retiral dues by filing WPS No. 1627 of 2017 and the same was dismissed and the order

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passed in WPS No. 1627 of 2017 dated 06.02.2024 was affirmed in WA No. 133 of 2024. He also argued that the judgments cited by the learned Senior Counsel are distinguishable as the facts of the present case are entirely different from the facts of the cases cited. He stated that there cannot be any promise in breach of law, as there is no estoppel against the law. He submitted that the petition deserves to be dismissed.

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I have heard learned counsel appearing for the parties and perused the documents placed on the record with utmost circumspection.

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The only issue involved in the present case is whether the amount of gratuity can be withheld during the pendency of the departmental or judicial proceeding.

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10. Rule 64 of the Rules, 1976 reads as under:-

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“64 Provisional pension where departmental or judicial proceeding may be pending.

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(1) (a) In respect of Government servants refer to in subrule (4) of Rule 9 the Head of Office shall authorise the payment of provisional pension not exceeding the maximum pension and 50% of gratuity taking into consideration the gravity of charges levelled against such Government servant, which would have been admissible on the basis of qualifying service up to the date ,of retirement of the Government servant or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension.

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(b) The provisional pension shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office during the period commencing from the date of retirement to the date on which upon conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.

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(c) Provisional gratuity shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office after adjusting dues mentioned in sub-rule [(2)] [Substituted by Notification No. FB-6-1-77-N-II-IV,

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dated 1-2-1977 (w.e.f. 1-8-1976).] of Rule 60, under intimation to Audi Office. Payment of provisional pension/gratuity made under sub-rule (1) shall be adjusted against final retirement benefit sanctioned to such Government servant upon conclusion of such proceedings, but no recovery shall be made where the pension/gratuity finally sanctioned is less than the provisional pension/gratuity or the pension/gratuity is reduced or withheld either permanently or for a specified period.”

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11. From a bare reading of the aforesaid provision, it is clear that the department can withhold the gratuity of an employee if a departmental proceeding or judicial proceeding is pending till its conclusion. However, it has the discretion to release gratuity up to 50% in the event a departmental enquiry is pending against a Government servant who has attained the age of superannuation and retired. That means, on account of the pendency of an enquiry, at the most 50% of the gratuity amount may be released and the remaining 50% could be withheld until the conclusion of the enquiry.

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12. In the present case, the petitioner, who was holding the post of the Engineer under the respondents, retired from services on 31.12.2005, but prior to that date, an FIR was registered for the commission of an offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 193 and 196 of the IPC on 29.03.2000. The criminal case remained pending and the charge-sheet was filed on 26.02.2006, simultaneously a departmental proceeding was also going on which culminated in the exoneration of the petitioner on 10.03.2011. A letter was also issued by the department to the effect that the decision with regard to payment of gratuity would be taken after the conclusion of the departmental enquiry, but when the payment was not made, the petitioner filed this petition. In the criminal case, the petitioner was convicted on 27.07.2016 and the Criminal Appeal No. 2100 of 2016 is

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pending before the High Court of M.P.

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13. It is not in dispute that a criminal case is still pending against the petitioner before the competent Court and the petitioner was convicted by the Criminal Court vide judgment dated 27.07.2016. Though, the petitioner was exonerated in the departmental enquiry, a bare reading of the provisions of Rule 64(1)(c) of the Rules, 1976, would make it amply clear that during the pendency of the departmental proceeding or judicial proceeding, the issue with regard to payment of gratuity cannot be finalized.

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14. In the matter of Jorsingh Govind Vanjari (supra), the Hon’ble Supreme Court while dealing with the issue of denial of gratuity on the ground of dismissal for moral turpitude held that to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry. There must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude, paras 14 and 15 read as under :-

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14. It appears that the High Court itself has granted compensation since the Court felt that the termination was unjustified and since reinstatement was not possible on account of superannuation. In case, the High Court was of the view that termination was justified, it could not have ordered for payment of any compensation.

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15. In order to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry. There must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude.

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15. In the present case, the petitioner has been exonerated in the

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departmental enquiry, but at the same time, the criminal case is pending and the Court of first instance has convicted the petitioner, whereas according to the applicable rules, the payment of gratuity cannot be made till the final disposal of the criminal case.

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16. In the matter of Bangali Babu Mishra (supra) the High Court of Allahabad allowed the petition filed by the petitioner therein on the ground that there was no provision under any of the service Rules or the Government orders or any other law to withhold the gratuity or pensionary benefits. Para 9 of the judgment reads thus:-

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The petitioner was subjected to a trap case for an alleged amount of Rs. 100 in the year 1990. The State could not even submit charge-sheet prior to the filing of the writ petition and it was only when this petition was filed in this Court, it has been informed by the learned standing counsel that charge-sheet has been submitted in the Court on 6th November, 2002. We are not commenting on the criminal proceedings which may take its own course but would like to observe that the State should be prompt in concluding the criminal proceedings, if initiated against the Government servant and the matter should not be allowed to linger as it some times gives undue advantage to the charged Government servant and sometimes, it adversely affects the Government servant and his family. The right of speedy trial, being a fundamental right as declared by the Apex Court could not be defeated or marred in any manner. Since there is no provision under any of the Service Rules or the Government orders or any other law and at least no such provision has been cited before us by the learned standing counsel, even if the petitioner is subjected to any punishment in the criminal proceedings that would be of no consequence so far his service tenure or service benefits are concerned. In view of the above, we are of the view that the action of opposite parties in not releasing the entire post-retiral benefits or dues to the petitioner on the ground of pendency of criminal proceedings in a trap case, cannot be said to be reasonable or legal.

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17. Rule 64(1)(c) of the Rules, 1976 specifically provides that if the judicial proceeding or departmental proceeding is pending, the payment of gratuity

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cannot be made; therefore, the case cited by the learned Senior Counsel appearing for the petitioner is of no help.

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18. In the matter of Angad Prasad Vishwakarma (supra), the Coordinate Bench held that payment of retiral dues on the date of retirement is a rule, non-payment on the due date is an exception under unforeseen circumstances. Para 7 of the aforesaid judgment reads as under:-

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7. Payment of retiral dues on the date of retirement is a rule, non-payment on due date is an exception under unforeseen circumstances. Under the Chhattisgarh Civil Services (Pension) Rules, 1976, a complete mechanism has provided by the competent legislature to process the case of retirement of a particular Government servant much prior to the date of his retirement and to extend the benefit on the date of retirement. The Supreme Court has reiterated the same principle in umpteen number of cases holding that “... it is expected that all the payments of retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payment could not be made on the date of retirement”. (See for support Vijay L. Mehrotra v. State of U.P. and others .) Not only this, the decision of the Supreme Court in Vijay L. Mehrotra (supra) has been followed by this Court in number of cases including Shyam Dev v. State of Chhattisgarh and others reported in ILR 2017 Chhattisgarh 1779.

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19. It is not a case where gratuity has not been paid to the petitioner on account of unforeseen circumstances as a criminal case is still pending; therefore, the authorities have not made payment of gratuity to the petitioner, and there is a reason for non-payment of gratuity to the petitioner.

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20. Rule 3 (n) of the Rules, 1976 defines “Pension” which reads as under:-

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“Pension” includes gratuity except when it is used in contradistinction to

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gratuity.

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21. The definition of “Pension” includes gratuity. The claim of the petitioner with regard to payment of pension and other benefits has already been

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declined by the Coordinate Bench in WPS No. 1627 of 2017 and has been affirmed in WA No. 133 of 2024 by the Division Bench.

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22. Taking into consideration the above-stated facts and material placed on the record, in the considered opinion of this Court, no case is made out for any direction or order with regard to the payment of gratuity to the petitioner. Thus, the instant petition fails and is hereby dismissed . No order as to cost(s).

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23. However, the respondent authorities are directed to decide the claim of the petitioner after the conclusion of the criminal appeal pending before the High Court of M.P.

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Sd/- (Rakesh Mohan Pandey) Judge

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$iddhant

R.R. Dubey v. Cg State Power Holding Co.Ltd. and Ors.

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R.R. Dubey v. Cg State Power Holding Co.Ltd. and Ors.

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