JUDGMENT : Ujjal Bhuyan, J. Heard Mr. R.P. Hazarika, learned counsel for the petitioner and Mr. B.D. Das, learned Senior Counsel for the respondents. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 12.12.2011, informing the petitioner that he would not be entitled to receive gratuity. 3. Case of the petitioner is that at the relevant point of time he was serving as Deputy Accounts Officer under the Assam Power Distribution Company Limited (APDCL). A show-cause notice was issued to him on 09.07.2008 under Regulation 10 of the Assam State Electricity Board (General Services) (Regulations) (For Officers), 1960, (hereinafter, referred to as "the Regulations") on the following charges:- (1) Disorderly conduct in connection with his employment and acts subversive of discipline. (2) Acts involving moral turpitude. (3) Breach of ASEB Officers (Conduct) Regulations, 1982. 4. At this stage, it may not be necessary to delve into the entire details of allegations made against the petitioner save and except that, there was a complaint of sexual harassment against the petitioner, following which, the above show cause notice was issued. 5. Though petitioner had submitted his reply, the same was not found to be satisfactory and accordingly an enquiry was ordered. On completion of the enquiry, Enquiry Officer submitted his report before the disciplinary authority on 10.10.2008, holding that all the charges against the petitioner stood proved. Petitioner was given a copy of the enquiry report by the disciplinary authority to which he submitted his response. Finally, the Managing Director, Lower Assam Electricity Distribution Company Limited, which was renamed as APDCL, acting as the disciplinary authority, imposed the penalty of dismissal from service on the petitioner. 6. On being aggrieved, petitioner preferred a departmental appeal before the appellate authority, i.e., the Board of Directors against the order of penalty. Board of Directors in their meeting held on 21.09.2009, on due consideration reduced his penalty from dismissal from service to compulsory retirement with pension benefits. This was communicated to the petitioner vide office order dated 02.03.2009. 7. By a subsequent order dated 08.07.2011, family pension amount of the petitioner was fixed and sanctioned. However, it was mentioned in the said order that retirement gratuity was not admissible to the petitioner. 8. Petitioner submitted representation before the Chairman-cum-Managing Director, APDCL, for payment of gratuity. This was communicated to the petitioner vide office order dated 02.03.2009. 7. By a subsequent order dated 08.07.2011, family pension amount of the petitioner was fixed and sanctioned. However, it was mentioned in the said order that retirement gratuity was not admissible to the petitioner. 8. Petitioner submitted representation before the Chairman-cum-Managing Director, APDCL, for payment of gratuity. By the impugned order dated 12.12.2011, he was informed that gratuity is not permissible as per the provisions of Rule 40 (1) of the Central Civil Services (Pension) Rules, 1972 [hereinafter, referred to as 'CCS (Pension) Rules']. 9. Aggrieved, the present writ petition has been filed. 10. Respondents have filed counter affidavit contesting the claim of the petitioner. 11. Learned counsel for the petitioner submits that a careful reading of Rule 40 of the CCS (Pension) Rules would show that pension includes gratuity. As per appellate order dated 02.03.2009, penalty of dismissal from service was modified to compulsory retirement with pension benefits. Pensionary benefits would necessarily include gratuity. He further submits that in the case of one Sri Dhirendra Nath Bordoloi, who also suffered the penalty of compulsory retirement, retirement gratuity was paid. Therefore, there is no justifiable reason to deny retirement gratuity to the petitioner. 12. On the other hand, Mr. B.D. Das, learned Senior Counsel for the respondents referring to the averments made in the counter affidavit submits that as per the provisions of Rule 40 (1) of the CCS (Pension) Rules, the authority has the discretion to pay pension or gratuity or both. In this case, authority had exercised the discretion and had decided to pay pension without gratuity, which is well within the ambit of Rule 40 (1). Referring to provisions contained in Section 4 (6) (b) (ii) of the Payment of Gratuity Act, 1972, he submits that gratuity payable to an employee may be withheld if the service of such employee is terminated for any act which constitutes an offence involving moral turpitude. Basic allegation against the petitioner was of sexual harassment which stood proved in the departmental proceeding which led to his termination from service. As such termination of petitioner's service is relatable to an offence involving moral turpitude. Therefore, in any view of the matter, no interference is called for and the writ petition should be dismissed. 13. Submissions made by learned counsel for the parties have been considered. 14. As such termination of petitioner's service is relatable to an offence involving moral turpitude. Therefore, in any view of the matter, no interference is called for and the writ petition should be dismissed. 13. Submissions made by learned counsel for the parties have been considered. 14. Since facts are not disputed, those are not referred to in detail hereunder. 15. Short point for consideration is whether an employee of APDCL, who has been imposed the penalty of compulsory retirement would be entitled to gratuity. 16. Since respondents have relied upon the provisions of Rule 40 of the CCS (Pension) Rules, relevant provisions of the said Rules may be briefly referred to. 17. Rule 3 (o) defines pension which includes gratuity except when the term 'pension' is used in contradistinction to gratuity, but does not include dearness relief. As per Rule 3 (r), retirement benefits include pension or service gratuity and retirement gratuity, where admissible. Since Rule 40 of CCS (Pension) Rules is the basis for denying gratuity to the petitioner, the same is quoted hereunder in its entirety:- "40. Compulsory retirement pension (1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement. (2) Whenever in the case of a Government servant the President passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these rules, the Union Public Service Commission shall be consulted before such order is passed. EXPLANATION-In this sub-rule, the expression 'pension' includes gratuity. (3) A pension granted or awarded under Sub-Rule (1) or as the case may be under Sub-Rule (2), shall not be less than the amount of [Rupees three hundred and seventy-five] per mensem" 18. A careful perusal of Sub-Rule-(1) discloses that a Government servant, who is compulsorily retired from service by way of punishment may be granted by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement. Therefore, Sub-Rule (1) of Rule 40 mandates that it is the authority, who is competent to impose the penalty of compulsory retirement on a Government servant, may grant pension or gratuity or both. Two things are discernible from the above. Firstly, the decision to grant pension or gratuity or both has to be taken by the authority competent to impose such penalty and secondly, discretion is vested on the said authority either to grant pension or gratuity or both. 19. In the instant case, the penalty of compulsory retirement was imposed by the Board of Directors acting as the appellate authority. The initial penalty of dismissal from service imposed by the disciplinary authority was reduced to that of compulsory retirement with pension benefits by the appellate authority. The impugned order dated 12.12.2011 does not disclose that the Board of Directors or for that matter, the Chairman-cum-Managing Director, who is the disciplinary authority, had taken a decision not to grant pension with gratuity to the petitioner. The impugned order only discloses that it was an interpretation of the decision of the Board. On the other hand, the appellate order dated 02.03.2009 clearly mentions the reduced penalty as "compulsorily retirement with pension benefits". The expression used connotes plurality, it is pension benefits, not pension benefit, which means more than one pensionary benefit. Coming to the second aspect of the matter, Rule 40 (1) confers a discretion on the competent authority while imposing penalty of compulsory retirement, either to grant pension or gratuity or both. It is trite that when discretion is vested on an authority either while imposing penalty or while granting service benefits, the same has to be exercised in a fair, reasonable and judicious manner. There has to be an application of mind as to why 1 (one) out of 3 (three) possible benefits has been extended to the petitioner. In the context of petitioner's grievance, such application of mind by the competent authority was all the more necessary. As could be seen from the above, pension as well as retirement benefits ordinarily would include gratuity. To exclude gratuity from pension would require justification, which must be discernible from the reasons recorded, which in turn must be on the basis of due application of mind. 20. As could be seen from the above, pension as well as retirement benefits ordinarily would include gratuity. To exclude gratuity from pension would require justification, which must be discernible from the reasons recorded, which in turn must be on the basis of due application of mind. 20. Even under Section 4 (6) of the Payment of Gratuity Act, 1972, gratuity payable to an employee may be wholly or partially forfeited if the service of such employee is terminated for an act constituting an offence involving moral turpitude. Whether gratuity should be wholly forfeited or partially forfeited or not forfeited at all would require due consideration by the competent authority. 21. Right to receive gratuity is a valuable right of an employee. It is one of the minimal service conditions made available to an employee. It would require good, sufficient and compelling reasons to deny gratuity to an employee. Since such denial would result in adverse civil consequences on the employee. Principles of natural justice and fairness would have to be adhered to while taking such a decision. Therefore, in the course of taking such decision, the affected employee is required to be given an opportunity of hearing and his case has to be considered in a proper perspective, notwithstanding imposition of such penalty resulting in termination of service. 22. That being the position and having regard to the observations made above, order dated 12.12.2011 cannot be sustained and is accordingly set aside and quashed. Matter is remanded back to the appellate authority, i.e., Board of Directors, APDCL, who shall take a fresh decision regarding entitlement of the petitioner to retirement gratuity. 23. Before taking a final decision, Board of Directors shall give a reasonable opportunity of hearing to the petitioner to present his case. The above decision shall be taken within a period of 2 (two) months from the date of receipt of a certified copy of this order. 24. Writ petition is accordingly allowed to the extent indicated above. 25. No costs.