JUDGMENT 1. - Heard learned counsel for the parties at length. 2. The grievance of the petitioner as unfolded in this writ petition in short is that he was appointed in the services of the United Commercial Bank, Ajmer on a class IV post w.e.f. 6.6.1948. In the year 1956 he was promoted on the post of clerk and subsequently as Supervisor in 1965 and in the year 1968 he was promoted as Branch Manager of the said Bank by the Respondents. The petitioner served as a Branch Manager in the various Branches of the bank in Rajasthan and at the time of his retirement he was working in the Divisional Office at Ajmer. It has further been contended by the petitioner that for certain acts of omission and commission during his tenure, the Disciplinary Office, Ajmer, issued a charge-sheet in terms of his letter dated 12th of May, 1987. A disciplinary enquiry was initiated against the petitioner and the Disciplinary Authority imposed a major penalty of compulsory retirement on the petitioner vide its impugned order, dated 14.8.1989 (Annexure-I). 3. The controversy which has arisen before this court is as to whether the post-retiral benefits are admissible to the petitioner pursuant to the order of compulsory retirement passed by the respondent-bank on 14.8.1989, while the petitioner continued in services of the bank even thereafter pursuant to the interim order of this court and retired on attaining the age of superannuation w.e.f. 31.5.1991. It has not been disputed by the petitioner that he had challenged the order of his compulsory retirement by filing a Declaratory civil suit in the court of Munsif, Ajmer in March, 1990 and the said court passed an interim order staying the operation of the impugned order of compulsory retirement dated 14.8.1989. The petitioner had subsequently withdrawn the civil suit from the said court in view of the letter dated 7.1.1992 received from the respondent-bank wherein it was mentioned that it is not possible/feasible for the bank to settle the claim of the petitioner for admissibility of promotional benefits fully/partly so long as civil suit filed by the petitioner is pending in the Court. Thereafter in deference to the wishes of the respondent bank the petitioner had withdrawn the said suit from the Court on 25.1.1992 for the reason that the post-retiral benefits which were due to the petitioner i.e. provident fund and gratuity had been withheld by the respondent-bank in view of the pendency of the suit. It is primarily for this reason that the petitioner was constrained to withdraw the civil suit on 25.1.1992 vide Annexure II on the record. Thereafter the petitioner made series of representations to the respondent-bank for settlement of his terminal benefits and the last representation which was made by the petitioner in this regard was of 1.2.1992 vide Annexure 13. Thereafter the petitioner having failed elicit any response, served a notice of demand for justice on the respondent on 5.2.1992 vide Annexure 14 and it is only thereafter that the petitioner has filed this writ petition in this Court on 19.5.1992. 4. The respondents on being noticed by this court have raised preliminary objections to the maintainability of this writ petition on ground inter alia:- (i) That the petition is not maintainable being barred by principles of constructive res judicata with regard to the admissibility of increments and promotion on the principles of Order 2 Rule 2 Civil Procedure Code, (ii) that the petition is not maintainable on account of undue laches, (iii) that some recoveries were due to be affected from the petitioner's account pertaining to post-retiral benefits on account of his having made advances to the loanees of the bank which is violative of the norms and principles of the bank, (iv) that the petitioner is not entitled to any relief from this court in view of the principles laid down under Order 23 Rule 1 Sub-Rule (4) Civil Procedure Code which provides inter alia that where the plaintiff: (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim." 5. As regards the first contention raised by the learned counsel for the respondent-bank, i.e., constructive res judicata, I am of the view that the principles of constructive res judicata as envisaged under Order 2 Rule 2 Civil Procedure Code are neither attracted nor applicable to this case in view of the fact that the civil suit which was filed by the petitioner in the court of Munsif, Ajmer was withdrawn from the said court in view of the circumstances as referred to above and there is no decision of the civil court on the merits of the case. In other words since on the question at issue before the civil court i.e., the order of compulsory retirement which the petitioner had challenged, there was no decision on merits by the civil court and it is not the case of the petitioner that he had invoked the jurisdiction of this court or in any other court wherein he had assailed the impugned order of his compulsory retirement which in other words attained finality, the question of the applicability of the principles of constructive res judicata would not arise in this case. 6. Since the petitioner had continued in service of the respondent-bank till attaining the age of superannuation, i.e., on 31.5.1991 notwithstanding the order of compulsory retirement, pursuant to the interim orders of the civil court, i.e., the date when he is deemed to have relinquished his office, the obvious inference which emerges is that his post-retiral benefits e.g. provident fund, gratuity etc. cannot be withheld by the respondent-bank and the petitioner is entitled to the payment of the same. 7. Prima facie I am of the view that the right to payment of gratuity and provident fund etc. are the statutory rights of the petitioner protected under the Payment of Gratuity Act, 1972 (Sections 12 and 13) and the right to payment of provident fund is protected under section 10 of the Employees Provident Fund and Misc. Provisions Act, 1952 hereinafter referred to as the Act of 1972 and the Act of 1952 respectively.Sections 12 and 13 of the Act of 1972 mandates as under ;- "12. Provisions Act, 1952 hereinafter referred to as the Act of 1972 and the Act of 1952 respectively.Sections 12 and 13 of the Act of 1972 mandates as under ;- "12. Protection of action taken in good faith : No Suit or other legal proceeding shall lie against the controlling authority or any other person in respect of anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.13. PROTECTION OF GRATUITY :No gratuity payable under this Act shall be liable to attachment in execution of any decree or of any civil, revenue or criminal court."Section 10 of the Act, 1952 reads as under:- "PROTECTION AGAINST ATTACHMENT (1) The amount standing to the credit of any member in the Fund (or of any exempted employee in a Provident Fund) shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any court in respect of any debt or liability incurred by the member (or the exempted employee) and neither the official assignee appointed under the Presidency-towns Insolvency Act 1909, nor any receiver appointed under the Insolvency Act, 1920, shall be entitled to, or have any claim on, any such amount." 8. Under the aforesaid provisions the legislature in its wisdom has rightly thought of protecting the said rights of the employee because the very livelihood of retired Government employee is dependent upon post-retiral benefits such as pension, provident fund and gratuity etc. without which it is impossible for him to survive and which should be duly settled by the concerned Authority immediately upon his retirement. These safeguards in my view are very essential for livelihood of an employee who retires from service on attaining superannuation and form an integral part of right to life and liberty under Article 21 of the Constitution of India, and as such have rightly been protected and safeguarded by the legislature and I find no reason to take contrary view of the matter. I am fortified in my observations from the judgments of the Apex Court in the matter of Union of India v. Jyoti Chit Fund and Finance and others, AIR 1976 SC 1163 , as well as in the matter of D.V. Kapoor v. Union of India and others, AIR 1990 SC 1823. 9. I am fortified in my observations from the judgments of the Apex Court in the matter of Union of India v. Jyoti Chit Fund and Finance and others, AIR 1976 SC 1163 , as well as in the matter of D.V. Kapoor v. Union of India and others, AIR 1990 SC 1823. 9. In the matter of Union of India v. Jyoti Chit Fund and Finance and others (supra) the question at issue before the Apex Court in Special Leave Petition was regarding the admissibility of the post-retiral benefits to an employee who had retired on attaining the age of superannuation such as provident fund, gratuity and pension. It was held by the Apex Court that the said rights are statutory rights of an employee and are safeguard by the legislations as referred to above, and they are also exempted from attachment by virtue of the provisions of Section 60(I)(k) Civil Procedure Code, 1908 which reads as under:- "(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925 (9 of 1925), for the time being applies in so for as they are declared by the said Act not to be liable to attachment." In this context, the observations of the Apex Court in the matter of Union of India v. Jyoti Chit Fund and Finance and others are very significant which reads as under:- "So long as the amounts of provident fund, pensions and others compulsory deposits, till they are actually paid to be the Government servant who is entitled to it on retirement or otherwise, the nature of the dues is not altered. The Government is a trustee for those sums and has an interest in maintaining the objection in court to attachment." In the matter of D.V. Kapoor v. Union of India others (supra) disciplinary proceedings were initiated against an employee which culminated in passing of the order of voluntary retirement which the petitioner sought during the pendency of the departmental proceedings. The respondents contested the petitioner's claim with regard to the payment of post-retiral benefit in view of the indictment of the petitioner following the departmental inquiry under the Conduct Rules (Civil Services Pension), Rules, 1972. The respondents contested the petitioner's claim with regard to the payment of post-retiral benefit in view of the indictment of the petitioner following the departmental inquiry under the Conduct Rules (Civil Services Pension), Rules, 1972. The petitioner had earlier invoked the jurisdiction of Delhi High Court under Article 226 of the Constitution of India wherein he had contested the claim of respondent Union of India that the aforesaid post-retiral benefits had been illegally withheld by the respondents. Against the decision of Delhi High Court the petitioner preferred a Special Leave Petition before the Apex Court and the Apex Court allowed the appeal by observing that the said post-retiral benefits are protected under the statutory legislation and they cannot be withheld by the employer. However, the Apex Court further held that the disciplinary proceedings initiated under the conduct rules, must be deemed to be proceedings under the Pension Rules and shall be continued and concluded by the Authorities by which the proceedings have been commenced in the manner as if the Government servant had continued in service. 10. During the course of hearing Shri G.K. Garg, learned counsel for the respondents has vehemently contended at the bar that the respondent bank is not precluded from effecting recovery of dues which are admissible to the bank pursuant to the order (Annexure-1). I am further informed by the learned counsel for the parties that pursuant to the interim order dated 7.10.1993 the respondent-bank has already made a payment of Rs. 1,39,739.80 to the petitioner towards partial satisfaction of his claim for payment of post- retiral benefits such as provident fund and gratuity etc. This fact has also not been disputed by the learned counsel for the petitioner. He has however, stated that he is entitled to the payment of balance amount of Rs. 1,75,765.54 which fact has also not been disputed by the learned counsel for the respondent-bank. He has, however, stated that the petitioner is liable to pay a sum of Rs. 19,570.00 as against the staff loan and if the said amount is allowed to be deducted from the dues admissible to the petitioner, then the balance amount which remains to be paid to the petitioner works out to Rs. 1,56,197.54 which includes the employer's contribution as well as the employee's contribution towards provident fund. 11. 19,570.00 as against the staff loan and if the said amount is allowed to be deducted from the dues admissible to the petitioner, then the balance amount which remains to be paid to the petitioner works out to Rs. 1,56,197.54 which includes the employer's contribution as well as the employee's contribution towards provident fund. 11. Keeping in view the facts and circumstances of this case, I deem it appropriate to direct the respondent-bank to immediately release the aforesaid amount in favour of the petitioner, i.e., Rs. 1,56,197.54 with interest @ 18% per annum from due date till its full realization. The respondents are further directed to release the aforesaid amount to the petitioner within a period of 90 days from the date of submission of certified copy of this order to the respondents. The petitioner shall also be entitled to payment of amount if found due to him on account of increments, seniority, promotion by fixing his salary in revised pay scale in accordance with the rules as well as the differential amount along with the interest @ 18% per annum as referred to above from due date till payment to the petitioner. 12. With regard to the contention of Shri G.K. Garg, learned counsel for the respondents regarding the bank's right to effect recoveries of the outstanding amount due from the petitioner as detailed in Annx. 1, dated 16.4.1991 and as stated in para 2(1) of the reply to the writ petition, I am of the view that if such amounts are admissible to the respondent-bank, it does not preclude the bank from effecting recovery of realisation of the same from the petitioner by availing such legal remedies as may be admissible to the bank in accordance with law. Since the said amount involves disputed questions of fact and besides being a public revenue the Bank deserves to be protected and in order to realise the same from the petitioner, I am of the view that it requires adjudication by an appropriate forum, i.e., Tribunal/Civil Court of competent jurisdiction and if the bank institutes such proceedings within a period of 90 days from the receipt of certified copy of this order, it shall be open to the parties to advance their contentions before the appropriate forum and the said forum shall adjudicate and decide the claim of the parties after giving due opportunity of hearing and the parties shall be free to raise their objections available to them under the law before the said forum. 13. With regard to the payment of provident fund and gratuity itself as admissible to the petitioner, I am fortified in my observations from the contentions made by the respondent-bank in para 2.2 of their reply to the writ petition wherein the bank itself has conceded the payment of post-retiral benefits to the petitioner. No other point was raised or pressed by the learned counsel for the parties during the course of hearing.With the above observations this writ petition is allowed and disposed of with no order as to costs.Petition allowed. *******