JUDGMENT - Dr. PRATIBHA UPASANI, J.:---Heard. Rule. By consent, Rule is made returnable forthwith and taken up for final hearing. 2. This writ petition is filed by Sairabi Sayyad Abdul Aziz, being aggrieved by the judgment and order, dated 29-6-1999, passed by the IInd Additional District Judge, Ahmednagar, in Civil Revision Application No. 10 of 1993 whereby the revision filed by the petitioner came to be dismissed. The said revision was filed by the petitioner, being aggrieved by the judgment and order, dated 24-6-1993, passed by the IIIrd Joint Civil Judge, Junior Division, Ahmednagar, in Regular Civil Suit No. 880 of 1991 whereby the learned Civil Judge allowed the application of the defendant/the respondent herein, filed under section 10 of the Code of Civil Procedure, 1908. 3. The factual matrix of the matter is as follows : The plaintiff/the petitioner herein had filed Regular Civil Suit No. 579 of 1991 simpliciter for injunction against the defendant/the respondent herein, praying that he be restrained from making any construction on the suit property. The plaintiff also filed another suit being Regular Civil Suit No. 880 of 1991 under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, claiming possession on different grounds against the very same defendant. In Regular Civil Suit No. 579 of 1991 the plaintiff also filed an application for injunction and the said application was granted. Thereafter, the defendant preferred miscellaneous appeal against the said interim order which was pending before the Court. Regular Civil Suit No. 880 of 1991 was ready for hearing and in the said suit issues were framed and it was kept for recording evidence. In the meantime, the defendant filed an application under section 10 of the Code of Civil Procedure and prayed that the proceedings of Regular Civil Suit No. 880 of 1991, be stayed. The plaintiff filed her say to the said application and after hearing both the sides, the application made by the defendant, was allowed and the proceedings of Regular Civil Suit No. 880 of 1991, was stayed. Being aggrieved, the plaintiff approached the revisional Court by filing Civil Revision Application No. 10 of 1993, which also came to be dismissed by the impugned order, dated 29-6-1999, passed by the IInd Additional District Judge, Ahmednagar. Being aggrieved, the petitioner/original plaintiff has now approached this Court by filing the present writ petition. 4. I have heard Mr. Being aggrieved, the plaintiff approached the revisional Court by filing Civil Revision Application No. 10 of 1993, which also came to be dismissed by the impugned order, dated 29-6-1999, passed by the IInd Additional District Judge, Ahmednagar. Being aggrieved, the petitioner/original plaintiff has now approached this Court by filing the present writ petition. 4. I have heard Mr. V.S. Bedre, appearing for the petitioners and Mr. L.B. Pallod, appearing for the respondent. The contention of Mr. Bedre is that though both the suits were filed by the plaintiff against the very same defendant and even though the subject-matter of both the suits was same, namely the disputed premises with respect to which the litigation was going on between the parties, the reliefs sought in both the suits were different and the issues involved were also different. He, therefore, prayed that the impugned order be set aside and both the suits be directed to proceed separately, in accordance with law. 5. I have gone through both the judgments of the lower courts and, in my opinion, both the lower courts have erred in interpreting section 10 of the Code of Civil Procedure. For the sake of convenience, section 10 of the Code of Civil Procedure, is reproduced below : "10. No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court." If one carefully reads section 10, it will be obvious that the key words while interpreting section 10 would be, "..........having jurisdiction to grant the relief claimed...........". Thus it is not sufficient that the parties are same or the subject-matter of the suits is same but the issues involved therein also should be same or substantially same and the relief which has been sought by the plaintiff in both the suits also should be substantially same. Thus it is not sufficient that the parties are same or the subject-matter of the suits is same but the issues involved therein also should be same or substantially same and the relief which has been sought by the plaintiff in both the suits also should be substantially same. In fact section 10 does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the legislature in section 10 that the identity required is a substantial identity. There must be an identity of the subject-matter, the field of controversy between the parties in the two suits must also be the same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same. One test of the applicability of section 10 of the Code of Civil Procedure to a particular case is whether on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. What is essential is that there must be substantial identity between the matters in dispute and parties in the earlier and latter suits. 6. In the present case at hand, the first suit filed by the plaintiff/petitioner i.e., Regular Civil Suit No. 579 of 1991 was simpliciter for injunction and the second suit, i.e., Regular Civil Suit No. 880 of 1991, filed by the plaintiff, was for recovery of possession. Thus section 10 here has got no application and it will be sheer injustice if the second suit, in which a totally different relief has been sought, is stayed just because the first suit, which is earlier in point of time between the same parties relating to the same subject-matter, is pending. 7. Reference can be usefully made to the decision of the Madras High Court, rendered in the case of (R. Srinivasan v. Southern Petrochemical Industries Corporation Limited)1, reported in A.I.R. 1992 Madras 363. 7. Reference can be usefully made to the decision of the Madras High Court, rendered in the case of (R. Srinivasan v. Southern Petrochemical Industries Corporation Limited)1, reported in A.I.R. 1992 Madras 363. In that case, there was an earlier suit filed by the employee who had sought a declaration that the notice of termination of his service was illegal. In the suit subsequently filed by the employer, the employer had sought recovery of the housing loan given to the employee. In that case, it was held that as the issues involved in both the suits could not be said to be substantially the same, and as the final decision reached in the earlier suit regarding the validity of termination of service would not operate as res judicata in the subsequent suit to recover the housing loan, there was no scope for invoking either section 10 or even section 151 of the Code of Civil Procedure and stay the proceedings in the later suit. I am in respectful agreement with the above mentioned decision (supra). In the present case at hand also the Court has to do justice by interpreting section 10 of the Code of Civil Procedure, 1908, correctly. It will be atrocious to stay the proceedings of the suit being Regular Civil Suit No. 880 of 1991, filed by the plaintiff, in which a totally different issue is involved and a totally different relief has been sought. Thus for aforementioned reasons, it has to be said that taking recourse to section 10 of the Code of Civil Procedure, 1908, was improper. Obviously, both the lower courts were in error in staying that suit. This error cannot be perpetrated and those orders have to be set aside. In view of this, following order is passed : ORDER Writ petition is allowed. The impugned orders, dated 24-6-1993, passed by the IIIrd Joint Civil Judge, Junior Division, Ahmednagar, in Regular Civil Suit No. 880 of 1991 and 29-6-1999, passed by the IInd Additional District Judge, Ahmednagar, in Civil Revision Application No. 10 of 1993, are hereby quashed and set aside. Rule is made absolute accordingly. ----- 2002(3) Bom.C.R. 142 (O.O.C.J.) Before : R.M. Lodha Smt. Nishita Mhatre, JJ. Rajinder Kumar Nangia .... Petitioner. Versus Rashtriya Chemicals Fertilizers Ltd. .... Respondents. Writ Petition No. 38 of 1995, decided on 10-10-2001. Rule is made absolute accordingly. ----- 2002(3) Bom.C.R. 142 (O.O.C.J.) Before : R.M. Lodha Smt. Nishita Mhatre, JJ. Rajinder Kumar Nangia .... Petitioner. Versus Rashtriya Chemicals Fertilizers Ltd. .... Respondents. Writ Petition No. 38 of 1995, decided on 10-10-2001. (A) Payment of Gratuity Act, 1972, Sec. 4(1) (6)---Gratuity---Withheld on superannuation in view of criminal case by CBI filed in 1993---No disciplinary proceeding for misconduct at the time of superannuation---Whether case covered by section 4(6) to allow respondents to withhold gratuity---Held, petitioner's services terminated on superannuation simpliciter and not for any grounds mentioned under section 4(6). No departmental proceedings of misconduct initiated against petitioner till date. It was not open to respondent to refuse to release gratuity to petitioner. (Para 4) (B) Payment of Gratuity Act, 1972, Sec. 4(1)---Rashtriya Chemicals Fertilizers Employees (Conduct, Discipline Appeal) Rules, 1993, Rr. 38 45---Gratuity---Withheld on superannuation---Pending criminal case lodged by CBI---No departmental enquiry at time of superannuation nor till date---Whether employers can now take departmental action in view of time provided by Rule 45 of R.C.F. Employees Rules---Held, no departmental action can be initiated against the petitioner if departmental proceedings had not been instituted while in service. Proceedings under Rule 38 for imposition of major penalties can be initiated only by or sanction of Board of Directors. Under Rule 45, cause of action should take place within 4 years of institution of proceedings. Here, for more than seven years of superannuation no departmental action was initiated. Such action has become time barred in view of Rule 45(ii). (Para 5) Cases referred : 1. Jarnail Singh v. Secretary, Ministry of Home Affairs, 1993 L.L.J. 962. Advocates appeared : A.V. Bukhari, for petitioner. J.B. Lentin i/b. M.S. Bodhanwala, for respondents. Per R.M. LODHA, J.:---The decision taken by the respondents to withhold the gratuity payable to the petitioner on his superannuation in view of criminal case pending against the petitioner has led the petitioner to approach this Court for quashing the said decision of the respondent and for direction to them to pay the gratuity amount due to the petitioner along with interest. 2. The petitioner joined the service of erstwhile Fertilizers Corporation of India Limited in the year 1958 as Lower Division Clerk and on formation of Rashtriya Chemicals Fertilizers Limited (hereinafter referred to as “RCF Ltd”.), petitioner's services were transferred to the newly formed company. 2. The petitioner joined the service of erstwhile Fertilizers Corporation of India Limited in the year 1958 as Lower Division Clerk and on formation of Rashtriya Chemicals Fertilizers Limited (hereinafter referred to as “RCF Ltd”.), petitioner's services were transferred to the newly formed company. The petitioner was promoted from time to time and was ultimately superannuated on 28th February, 1994. The petitioner thus has put in a continuous service of more than thirty five years. Upon superannuation, the petitioner did receive his legal dues but the gratuity amount due and payable to the petitioner was not paid and accordingly petitioner wrote to the concerned officer for making payment of gratuity. In response thereto, by letter dated 10th May, 1994, the petitioner was informed that his gratuity could not be released in view of Case No. RC 53(A)/93-Bom by CBI. As already indicated above, it is this decision communicated by RCF Ltd. to the petitioner, the present writ petition has been filed. 3. It is clear from the letter dated 1st December, 1993 sent by Personnel Manager of RCF Ltd. to the petitioner that petitioner on completing the age of 58 years on 22nd February, 1994 shall be superannuated with effect from afternoon of 28th February, 1994. At the time of superannuation, admittedly no disciplinary proceedings for any misconduct of any sort whatsoever was initiated against the petitioner. It is not disputed before us that petitioner's services were not terminated due to any act, wilful omission or negligence causing any damage or loss to or destruction of property belonging to the employer nor petitioner's services were terminated for his riotous or disorderly conduct or any other act of violence on his part nor petitioner's services were terminated for any act constituting an offence involving moral turpitude. The services of the petitioner came to an end simpliciter on his attaining age of 58 years. There is also no dispute before us that the Payment of Gratuity Act, 1972 is applicable to the petitioner who was governed by RCF Employees (Conduct, Discipline Appeal) Rules, 1993 as Rule 41 of the said Rules provided that payment of gratuity to the employees shall be regulated as per the provisions of Payment of Gratuity Act as amended from time to time and Rules of RCF Employee's Gratuity Trust. Section 4 of the Payment of Gratuity Act, 1972 provides for payment of gratuity to an employee. Section 4 of the Payment of Gratuity Act, 1972 provides for payment of gratuity to an employee. Sub-sections (1) and (6) of section 4 are relevant for our purpose which we reproduce hereunder : “4. 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 : Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority. Explanation---For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement. (2) ... ... ... (3) ... ... ... (4) ... ... ... (5) .. ... ... (6) Notwithstanding anything contained in sub-section (1),- (a) the gratuity of an employee, where 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.” 4. It would be seen that sub-section (1) of section 4 of the Payment of Gratuity Act, 1972 provides that gratuity shall be payable to an employee on termination of his employment after he has rendered continuous service for not less than five years. The termination of the employment may be on superannuation or on retirement or resignation or death or disablement due to accident or disease of the employee. Thus, an employee becomes entitled to payment of gratuity under the statute. Sub-section (6) is an exception to sub-section (1) and makes a provision of forfeiture of the gratuity wholly or partially in the circumstances mentioned therein. According to sub-section (6), gratuity of an employee may be forfeited to the extent of damage or loss caused to the employer if service of that employee has been terminated for any act, wilful omission or negligence on that ground. The gratuity payable to an employee may also be forfeited wholly or partially if the service of such employee has been terminated for his riotous or disorderly conduct or any other act for violence on his part or service of such employee has been terminated for any act constituting an offence involving moral turpitude. Though a criminal case was registered against the petitioner by CBI in the year 1993, the fact is petitioner's services have been terminated simpliciter on his superannuation and not for any of the grounds mentioned under sub-section (6) of section 4 of the Payment of Gratuity Act, 1972. As a matter of fact, admittedly till petitioner's superannuation and even till date no departmental proceedings of misconduct have been initiated against the petitioner. In this backdrop of facts, it was not open to the respondents to refuse to release the gratuity amount to the petitioner. 5. The learned Counsel or respondents heavily relied on the judgment of the Apex Court in (Jarnail Singh v. Secretary, Ministry of Home Affairs others)1, 1993 L.L.J. 962 in support of his contention that gratuity can be withheld by the employer-respondents if any judicial proceedings are pending against the petitioner relating to his misconduct or negligence during the period of his service. We are afraid the judgment of the Apex Court in Jarnail Singh (supra) has no application in the facts and circumstances of the case before us. We are afraid the judgment of the Apex Court in Jarnail Singh (supra) has no application in the facts and circumstances of the case before us. The Apex Court in the case of Jarnail Singh (supra) was concerned with the provisions of Central Civil Services (Pension) Rules, 1972 and in the light of the specific Rules 3, 9, 69(1)(c), 71 and 73 held that there was nothing wrong in the order of the President in withholding the gratuity of the employee. In the present case, none of the Rules under consideration before the Apex Court or the similar Rules are applicable but the petitioner is governed by the provisions of the Payment of Gratuity Act, 1972 and as per section 4(1) petitioner has a statutory right to receive gratuity from his employer save and except in the circumstances provided under sub-section (6) of section 4. We have already indicated that none of the circumstances provided in sub-section (6) is applicable in the present case and, therefore, we do not find any justifiable cause on the part of the respondents in withholding the gratuity. Mere pendency of a criminal case lodged by CBI shall not disentitle the petitioner from receiving gratuity nor shall entitle the respondents to not to release the gratuity to the petitioner as petitioner's services came to an end on his attaining superannuation simpliciter. We may note here that Rule 45 of the RCF Employees (Conduct, Discipline Appeal) Rules, 1993 does provide for departmental action against retired employees. Clause (iii) of Rule 45 provides that in case of an officer who had already retired on superannuation before instituting any departmental proceedings and who has received all retiral benefits, as far as possible only criminal prosecution can be recommended against him. Even under Clause (ii) of Rule 45, it appears that now no departmental action can be initiated against the present petitioner as it provides that if departmental proceedings had not been instituted while the officer was in service, proceedings under Rule 38 for imposition of major penalties can be initiated only by or sanction of the Board of Directors and in respect of a cause of action which arose or in respect of an offence which took place not earlier than four years before the institution of the proceedings. The petitioner was superannuated in the year 1994; the criminal case was registered against him in the year 1993 before his superannuation but till date i.e. more than seven years of his superannuation, no departmental action has been initiated and, therefore, such action has become beyond time provided in Clause (ii) of Rule 45 of the RCF Employees (Conduct, Discipline Appeal) Rules, 1993. 6. For all these reasons, we are satisfied that the decision taken by respondents to not to release payment of gratuity to the petitioner cannot be sustained. 7. In the result, we allow the writ petition and quash the communication dated 10th May, 1994. We are informed that petitioner has already been paid the due amount of gratuity under the order of this Court and that petitioner has furnished Bank Guarantee for restitution in the event of dismissal of the petition. As the due amount of gratuity has been paid to the petitioner to which he was entitled, we discharge the Bank Guarantee furnished by the petitioner. No costs. Petition allowed. -----