JUDGMENT : D.P. CHOUDHURY, J. 1. Challenge has been made in this case to the recovery from the retiral benefits of the petitioner passed vide Annexure-1. FACTS 2. The factual matrix leading to the case of the petitioner is that the petitioner was posted as Superintendent under the Orissa State Warehousing Corporation during the year 1997 at Jeypore, in the district of Koraput. Before posting of the petitioner Assistant Director of Orissa State Warehousing Corporation (hereinafter called “the Corporation”), Jeypore Zone had authorized Sri M.R.K. Rao, Warehousing Assistant at Podagada Branch to lift directly the entire PDS against release order on behalf of the Corporation. It is stated inter-alia that there was allegation purportedly made against Sri M.R.K. Rao to have misappropriated the stock after lifting of same. The petitioner was also issued memo on the same allegation made by the Corporation by framing three charges namely he did not lift the PD stock from FSD, Umuri to transport the same to Podagada whereas Sri M.R.K. Rao lifted same directly from FSD, Umuri during the period February 1999 and March 1999 and misappropriated the stocks of rice and sugar amounting to Rs.21 lakhs. Secondly the petitioner did not report about direct lifting of P.D. stocks by Sri M.R.K. Rao and thirdly the petitioner had not verified the acknowledged transit passes. The petitioner challenged all the charges and after due enquiry the Enquiry Officer did not find petitioner guilty for the first charge but found him guilty for the other two charges. 3. Be it stated, that basing on enquiry report the disciplinary authority imposed following punishment on the petitioner: "(i) He should be reduced to the next lower time scale of pay; (ii) 50% (Fifty percent) of the loss sustained by the Corporation in Podagada misappropriation case worth Rs.21.00 lakhs shall be recovered from him (Sri Lenka); (iii) He (Sri Lenka) shall not be kept in-charge of any Warehouse for 3 years." 4. Against the order of punishment dated 5.1.2002 the petitioner preferred appeal. The Appellate Authority formed a Sub-Committee to consider the petitioner’s appeal. However, the Sub-Committee purportedly waived out the financial punishment but justified the rest of the punishment. Against the order of punishment dated 5.1.2002 the petitioner preferred appeal. The Appellate Authority formed a Sub-Committee to consider the petitioner’s appeal. However, the Sub-Committee purportedly waived out the financial punishment but justified the rest of the punishment. After considering the report of the Sub-Committee, the Appellate Authority, i.e., the Board passed order, by maintaining the punishment like reduction in rank to the next time scale of pay and non-assignment of duty as Warehousing in-charge for three years but decided to defer the recovery of 50% of the amount of Rs.21 lakhs till settlement of claim by the Insurance Company. 5. It is the further case of the petitioner that the Corporation had challenged the claim amount decided by concerned Insurance Company and being dissatisfied with the claim amount filed Arbitration case in this Court against the concerned Insurance Company. In the meantime there was departmental proceeding against Sri M.R.K. Rao basing on the internal audit and there was order passed to recover Rs.23,51,560.00 from him. It is stated that contrary to the order of the Appellate Authority the Secretary of the Corporation passed impugned order vide Annexure-1 in the following manner: "OFFICE ORDER An amount of Rs.11,71,840/- (Rupees eleven lakh seventy one thousand eight hundred forty only) shall be withheld from the retiral dues of Sri Sarat Chandra Lenka, Ex-Dy. Superintendent (Retd.), OSWC as mentioned below:- (i) Less collection of H/T bills as indicated in the clearance certificate of the Divisions for grant of retirement benefits (Office Circular No. Admn/Misc./473/99-2000/6416 dated 23.09.1999) Rs. 39,219.00 (ii) Balance amount towards shortage of sugar (Ref. H.O. Memo. No. 132(5) dated 09.01.2012 & 1101 (5) 23.2.12). Rs. 82,621.00 (iii) Recovery of 50% loss caused due to negligence at Podagada Sub-depot (Ref. H.O. letter No. Admn/ Proceed./44/99-00/2552 dated 22.03.2004) Rs.10,50,000.00 Total: Rs.11,71,840.00 Sri Lenka is entitled to receive the following retiral dues. (i) Gratuity Rs. 3,50,000.00 (ii) CPF Rs. 7,93,542.00 (iii) Un-utilised leave salary Rs. 3,08,108.00 Total: Rs.14,51,650.00 Hence, the rest amount of Rs.2,79,810/- (Rupees two lakh seventy nine thousand eight hundred ten only) shall be released in his favour (Sri Lenka)." 6. The aforesaid order has been challenged by the petitioner stating that Rs.11,71,840/-being not ordered by the Appellate Authority to be deducted has been illegally directed to be deducted from the retiral benefits including gratuity, C.P.F. and unutilized leave salary of the petitioner. The aforesaid order has been challenged by the petitioner stating that Rs.11,71,840/-being not ordered by the Appellate Authority to be deducted has been illegally directed to be deducted from the retiral benefits including gratuity, C.P.F. and unutilized leave salary of the petitioner. So, the petitioner is compelled to knock the door of the Court. Petitioner challenged the order on the ground that since Sri M.R.K. Rao has been guilty of misappropriation of the sugar and wheat and he has been directly authorised by the Assistant Director to lift the stock before the petitioner joined, the petitioner has no fault or any conduct towards misappropriation made by Sri Rao. Moreover, since Sri Rao being authorized directly has lifted the stocks, the petitioner was not duty bound to inform about lifting of the food stock. Moreover, it is alleged by the petitioner that the transit passes are kept with the transporter and he is not liable for non-production of transit passes. Be that as it may, the petitioner challenged the order vide Annexure-1 in this writ petition to quash the same. 7. Per contra, the opposite parties filed the counter refuting the allegation of the petitioner. Be it stated, the petitioner has neglected in his duty having not verified the transit passes as per procedure of the Corporation before submitting requisition to the Head Office for transportation of the stock from FSD, Umuri to Podagada Depot of the Corporation in the month of February 1999 and March 1999. He has also committed wrong by not informing the Corporation about lifting of stock of FCI from FSD, Umuri by Sri M.R.K. Rao, Warehousing Assistant directly. The petitioner has also purportedly permitted the transporter to keep the acknowledge transit passes with them for indefinite period against the enshrined procedure of the Corporation. So, the petitioner was rightly departmentally proceeded and awarded punishment against which he has preferred appeal and the Board of Directors of the Corporation on consideration of the appeal has been pleased to defer the recovery of 50% amounting to Rs.10,50,000/- in Podagada misappropriation case till the claim lodged with the Insurance Company is settled in ARBP No. 16 of 2002 pending in this Court and confirmed the punishment to reduction in rank to the post of Deputy Superintendent and non-assignment of duty of Warehouse charge for three years. According to the opposite party-Corporation the gratuity of the petitioner has been withheld as long as the damage or loss or destruction of the property belonging to the Corporation are recovered from the retiral benefit including gratuity of the petitioner. 8. The petitioner filed rejoinder to the counter reiterating the averments made in the petition. He only added the fact that the charge in respect of misappropriation being not proved by the Enquiring Officer, the order of withdrawal of gratuity and other retiral benefits of the petitioner is not sustainable in the eye of law and the entire loss amount being ordered to be recovered from Sri M.R.K. Rao, the Warehouse Assistant, further recovery of same from the petitioner is impermissible. It is also revealed from his rejoinder that the Corporation has filed ARBP No. 16 of 2002 disputing the claim of the Insurance Company and as long as such ARBP is not disposed of, the third punishment being not decided by the Board of Directors would remain without compliance causing much hardship to the petitioner. Moreover, he has submitted in his rejoinder that acknowledged transit passes remain with the transporter and the transporter surrenders the acknowledged transit passes on receipt of payment. Since the Head Office had sanctioned T.C. in favour of Sri M.R.K. Rao, the petitioner is no way connected. So the order of the opposite parties withholding the retiral benefits of the petitioner is unsustainable in the eye of law. SUBMISSIONS 9. Learned counsel for the petitioner submitted that the office order vide Annexure-1 is contrary to the order of the Appellate Authority because the Appellate Authority has not passed order to withhold the retiral dues of the petitioner. He further submitted that gratuity is payable under the Payment of Gratuity Act (hereinafter called ‘the Act’) and Section 4(6) of the Act specifically enshrines that gratuity would be withheld if the employee is terminated for the damages or loss or destruction of any property caused to the employer. He also submitted that Section 2(q) of the Payment of Gratuity Act defines retirement which means termination of the service of an employee otherwise than on superannuation. The word ‘superannuation’ under the Act also denotes the attainment of such age by the employee on which he vacates the employment. He also submitted that Section 2(q) of the Payment of Gratuity Act defines retirement which means termination of the service of an employee otherwise than on superannuation. The word ‘superannuation’ under the Act also denotes the attainment of such age by the employee on which he vacates the employment. In the instant case the petitioner being superannuated from service, the restriction as caused under Section 4 (6) of the Act is not applicable. He further submitted that since the Appellate Authority has not passed any order withholding the retiral benefits of the petitioner, any order contrary to the Appellate Authority is illegal and improper. So, he submitted that the Annexure-1 should be set aside and the retiral benefits must be extended to the petitioner. 10. Learned counsel for the opposite parties submitted that Section 4 (6) of the Act clearly prescribed for withholding the gratuity if the employee is found guilty in causing loss, damage or destruction of property to the employer. Since the petitioner has caused huge loss to the Corporation by not informing about the direct lifting of stock by Sri M.R.K. Rao, Warehouse Assistant and transit passes have been already allowed to be retained by the transporter, there is huge loss to the Corporation and as long as the loss is not compensated by withholding the retiral benefits, the action of the opposite parties cannot be said to be illegal and improper. He further submitted that there is clear direction of the Appellate Authority that 50% of the loss sustained by the Corporation in Podagada sub-depot misappropriation should be realized from the petitioner but for the time being it has been deferred. So, the order passed under Annexure-1 is correct, legal and proper and the writ petitioner has no merit to challenge the same. 11. The main point for consideration:- (i) Whether withholding of retiral benefits of the petitioner is legal and proper? DISCUSSIONS POINT NO. (i) : 12. It is admitted fact that the petitioner was the employee of Orissa State Warehousing Corporation and one Sri M.R.K. Rao was Warehousing Assistant by the time the petitioner joined as Superintendent of Podagada depot. It is not in dispute that Sri M.R.K. Rao was directly authorized to lift the entire P.D. stocks against release order on behalf of the Corporation vide Annexure-3. It is not in dispute that Sri M.R.K. Rao was directly authorized to lift the entire P.D. stocks against release order on behalf of the Corporation vide Annexure-3. It is also not in dispute that for the misappropriation of the P.D. stocks to the amount of Rs.21 lakhs during the period February and March 1999 the petitioner and Sri M.R.K. Rao were proceeded departmentally and from Sri M.R.K. Rao the misappropriated amount was ordered to be recovered in addition to other punishment. It will not be out of place to mention that departmental proceeding against both the petitioner and Sri M.R.K. Rao were conducted separately. 13. Learned counsel for the petitioner submitted that the aforesaid Annexure-1 is contrary to the appellate order communicated vide Annexure-2. On the other hand, the opposite party Nos.1 and 2 have not disputed the Annexure-2 but submitted that for the loss caused to the Corporation the opposite party Nos.1 and 2 have raised claim before the concerned Insurance Company but the New India Assurance Company intimated that claim of Podagada misappropriation should be settled at Rs.1,14,168.00 which was not accepted by the Corporation and the Corporation filed ARBP No. 16 of 2002 in this Court against the said Insurance Company. 14. The petitioner was proceeded Departmentally for the charges as hereunder:- “ARTICLES OF CHARGES Sri Sarat Chandra Lenka, Superintendent during his incumbency as In-charge of OSWC, Jeypore from dated 22.09.97 till date has neglected in his duty for which the following charges are drawn up against him. He did not lift the P.D. stocks from FSD, Umuri to transport the same to the Podagada Sub-depot as per the allotment made by C.S.O., Koraput, instead Sri M.R.K. Rao lifted the P.D. stocks directly from FSD, Umuri during February 99 and March 99 and mis-appropriated the stocks (Rice Qtl. 945.46 Kg. and Sugar Qtl. 174.14 Kg.) amounting to Rs.21.00 lakhs. He did not report about the direct lifting of P.D. stocks by Sri M.R.K. Rao either to the Zonal In-charge, Jeypore or to the Head Office. Had he pointed out about the direct lifting of P.D. stocks by the Sub-depot In-charge, Podagada, the said misappropriation could have been avoided. He did not verify the acknowledged transit passes as per procedure before submitting requisition to Head Office for transportation of stocks from FSD, Umuri to Podagada Sub-depot of OSWC for the month of February 99 and March 99. He did not verify the acknowledged transit passes as per procedure before submitting requisition to Head Office for transportation of stocks from FSD, Umuri to Podagada Sub-depot of OSWC for the month of February 99 and March 99. He submitted the requisition basing on the custom report of Podagada Sub-depot available in the Zonal Office, Jeypore. He could not produce the acknowledged transit passes to the Enquiry Officer, D.G.M. (A&F) during his enquiry from dated 22.06.99 to dated 23.6.99. Thus he has neglected in his duty.” After due enquiry the Enquiring Officer did not find the petitioner guilty for the Charge No. 1 but found guilty for Charge Nos. 2 and 3. Basing on this, the General Manager of the said Corporation awarded the following punishment: “(ii) The charge of non-reporting, either to the Corporate office or to the zonal In-charge, Jeypore about the direct lifting of P.D. stocks by Sri M.R.K. Rao, Ex-Warehouse Asst. to avoid the misappropriation made by Sri M.R.K. Rao, Ex-Warehouse Asst. amounting to Rs.21.00 lakhs, is proved. (iii) Non-Verification of acknowledged transit passes/allotment orders as per the procedure before submitting the requisition to Corporate Office for transportation of stocks from FSD, Umeri to Podagada sub-depot for the month of Feb. 99 is proved.” 15. When there is no charge proved for the misappropriation of Rs.21 lakhs, the punishment with regard to 50% of the loss sustained by the Corporation on account of the illegalities committed by Sri M.R.K. Rao, leading to misappropriation of stocks worth Rs.21.00 lakhs to be recovered from the petitioner remained incongruous. Against such punishment the petitioner filed the show cause challenging the said order. After considering the show cause the disciplinary authority confirmed the said punishment. Under the provisions of the Orissa State Warehousing Corporation (Staff) Regulations, 1985 the petitioner preferred Appeal before the Appeal Committee and the Appeal Committee after hearing the petitioner took the decision in the following manner: “xxx xxx xxx The Board decided that the first two aforesaid punishments are just and adequate without further 3rd consideration. Under the provisions of the Orissa State Warehousing Corporation (Staff) Regulations, 1985 the petitioner preferred Appeal before the Appeal Committee and the Appeal Committee after hearing the petitioner took the decision in the following manner: “xxx xxx xxx The Board decided that the first two aforesaid punishments are just and adequate without further 3rd consideration. However, with regard to the punishment, the Board decided to defer the recovery till settlement of the claim by the Insurance Company for which the entire loss to the tune of Rs.21.00 lakhs sustained by the Corporation for Podagada misappropriation case has been lodged.” From the aforesaid observation, it is clear that the Board of the Corporation being the Appellate Authority while found the other punishments just and proper but deferred the impugned punishment till settlement of claim by the Insurance Company to the tune of Rs.21.00 lakhs sustained by the Corporation in Podagada misappropriation case. On the other hand, the Board has not taken the decision on the said punishment. Same has also been intimated to the petitioner vide Annexure-2 by the Secretary of the Corporation. When the impugned punishment has not become final and there is ARBP No. 16 of 2002 pending before the Court with regard to the settlement of the claim, the issue of Annexure-1 on facts and circumstances is not proper and legal inasmuch as recovery of 50% as originally ordered by disciplinary authority but being deferred by the Appellate Committee has been also taken into consideration to recover same from gratuity, CPF and unutilized leave salary of the petitioner. Besides that the recovery of Rs.39,219.00 and Rs.82,621.00 with regard to the other items mentioned therein being not the subject matter of the charges and not being also ordered by the disciplinary authority or Appellate Authority to be recovered is also illegal vide Annexure-1. 16. The next question arises whether the retiral benefits like gratuity, CPF and unutilized leave salary of the petitioner should be taken into consideration against the payment of the dues of Rs.11,71,840.00 as per Annexure-1 under law even if the Corporation found that loss or damage has been caused to the property of the Corporation at the instance of the petitioner. In this regard, learned counsel for the opposite party Nos. In this regard, learned counsel for the opposite party Nos. 1 and 2 has clearly contended that under Section 4 (6) (a) and (b) of the Payment of Gratuity Act, 1972, 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 either wholly or partially to the extent of the damages or loss caused to the Corporation. On the other hand, the learned counsel for the petitioner submitted that the petitioner has superannuated being not terminated from service although in the departmental proceeding he has been reverted to the next below rank. 17. The evolution of the legislation with regard to gratuity should be dealt with proper perspective. It is reported in M/s. Crown Aluminium Works v. Their Workmen, AIR 1958 SC 30 where Their Lordships observed the following: “There is, however, one principle which admits of no exceptions. No industry has a right to exist unless it is able to pay its workmen at least a bare minimum wage. It is quite likely that in underdeveloped countries, where unemployment prevails on a very large scale, unorganized labour may be available on starvation wages; but the employment of labour on starvation wages cannot be encouraged or favoured in a modern democratic welfare State. If an employer cannot maintain his enterprise without cutting down the wages of his employees below even a bare subsistence or minimum wage, he would have no right to conduct his enterprise on such terms.” 18. With due regard to the aforesaid decision, it is clear that without workman no industry can exist and the workman must be paid the minimum wages by the employer. 19. In the case of Bakshish Singh v. M/s. Darshan Engineering Works and Others, AIR 1994 SC 251 where Their Lordships observed the following: “The present Act is of the genre of Minimum Wages Act, the Payment of Bonus Act, the Provident Funds Act, Employees State Insurance Act, and other like statutes. These statutes lay down the minimum relevant benefits which must be made available to the employees. We have solemnly resolved to constitute this country, among others, into a socialist republic and to secure to all its citizens, which, of course, include workmen, social and economic justice. These statutes lay down the minimum relevant benefits which must be made available to the employees. We have solemnly resolved to constitute this country, among others, into a socialist republic and to secure to all its citizens, which, of course, include workmen, social and economic justice. Article 38 requires the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which, among other things, social and economic justice shall inform all the institutions of the national life. Article 39 states that the State shall, in particular, direct its policy towards securing, among others, that the citizens have the right to an adequate means to livelihood and that the health and strength of workers are not abused. Article 41 of the Constitution directs the State to make effective provision, among others, for securing public assistance in old age and in other cases of undeserved want. Article 42 enjoins the State to make provision for securing just and humane conditions of work while Article 43 requires the State to endeavour to secure by (sic) conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Article 47 requires that the State shall regard the raising of the level of nutrition and standard of living of its people and the improvement of public health as one of its primary duties. Further, there is a restriction placed on the exercise of the Fundamental Right under Article 19(1)(g) by clause (6) of the said article. That clause states that nothing in sub-clause (g) of clause (1) shall affect the operation of any existing law or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by that sub-clause. It cannot be disputed that the present Act is a welfare measure introduced in the interest of the general public to secure social and economic justice to workmen to assist them in their old age and to ensure them a decent standard of life on their retirement. It cannot be disputed that the present Act is a welfare measure introduced in the interest of the general public to secure social and economic justice to workmen to assist them in their old age and to ensure them a decent standard of life on their retirement. On both grounds, therefore, viz., that the provisions for payment of gratuity contained in Section 4(1)(b) of the Act are one of the minimal service conditions which must be made available to the employees notwithstanding the financial capacity of the employer to bear its burden and that the said provisions are a reasonable restriction on the right of the employer to carry on his business within the meaning of Article 19(6) of the Constitution, the said provisions are both sustainable and valid. Hence the decision of the High Court has to be set aside.” 20. With due respect to the aforesaid decision, it appears that Article 38 and 39 of the Constitution direct the State to strive hard to promote the welfare of the people for protecting and securing the social order so that the preamble of the Constitution on social and economic justice would be well maintained. Similarly Article 41, 42 and 47 must be taken to care so as to render necessary assistance by the State to its citizens for their survival. Even if a person has got the fundamental right to have his own profession for maintaining livelihood but there should be reasonable restriction on the right of the employer to carry on business. That restriction gave rise to Payment of Gratuity Act so as to look after welfare of the people by the State. On the other hand, every employee for his longer period of work in an establishment has right to get gratuity payable by the employer. Gratuity is not a gift but is an entitlement of every employee and employer has to pay the gratuity without withholding the same. On the other hand, every employee for his longer period of work in an establishment has right to get gratuity payable by the employer. Gratuity is not a gift but is an entitlement of every employee and employer has to pay the gratuity without withholding the same. No doubt there is restriction under the Payment of Gratuity Act as to payment of the gratuity under Sub-Section (6) of Section 4 which is quoted in the following manner: “(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. (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.” At the same time it must be understood that Clause (a) of Sub-Section 6 of Section 4 of the Act speaks of termination of service of an employee for any act, willful omission or negligence causing any damage and such amount which is to be forfeited must be to the extent of the damage or loss so caused. In the instant case, before discussing Sub-Section (6), it is imperative to study Sub-Section (1) of Section 4 of the Act which speaks as 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. (b) On his retirement or resignation. 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. (b) On his retirement or resignation. (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.)” 21. From the aforesaid provisions, it is clear that gratuity would be payable to an employee if he has rendered continuous service of five years on his superannuation, or on his retirement or resignation, or on his death or disablement due to accident or disease. But Sub-Section (1) enjoining with Sub-Section (6) of Section 4 make it clear that in case of termination of service for any gross misconduct or unbecoming conduct or any other misconduct under the relevant Conduct Rules other than the death or disablement, full gratuity is not payable. Thus, the preconditions of applicability of Sub-Section (6) of Section 4 is a termination from service on the basis of the departmental enquiry or conviction in a criminal case. This aspect has also well dealt by the decision reported in Chairman-cum-Managing Director, Mahanadi Coalfield Ltd. v. Rabindranath Choubey, 2013 (13) SCALE 319 where Their Lordships observed at para-24: “24. Thus for invoking Clause (a) or (b) of sub-section 6 of Section 4 necessary pre-condition is the termination of service on the basis of departmental enquiry or conviction in a criminal case. This provision would not get triggered if there is no termination of services.” 22. With due regard to the aforesaid proposition of law as propounded by the Hon’ble Apex Court it is admitted fact that the present petitioner has retired on superannuation. 23. This provision would not get triggered if there is no termination of services.” 22. With due regard to the aforesaid proposition of law as propounded by the Hon’ble Apex Court it is admitted fact that the present petitioner has retired on superannuation. 23. Regulation 11 of the Orissa State Warehousing Corporation (Staff) Regulations, 1985 (hereinafter called ‘Regulation’) enshrines about the superannuation under which every employee shall retire on attaining the age of fifty-eight years. In the instant case there is no order of any dismissal or compulsory retirement or removal from service as penalty but he has been reverted to the next below rank and the fact remains that he has retired on attaining superannuation as per above Clause 11 of the Regulation. Moreover, the aforesaid Regulation does not speak about the provisions as to withholding of gratuity. When there is no termination of service, the question of withholding the gratuity for the recovery of the loss caused to the Corporation is also illegal. 24. Clause 18 of the aforesaid Regulation of the Corporation enshrines that in the event of disciplinary proceeding the major penalty can be awarded for recovery from pay, the whole or part of any pecuniary loss caused to the Corporation. But in the instant case, there is no any order of the Appellate Authority to recover the 50% of the loss caused to the Corporation from the petitioner whereas Annexure-17 clearly shows that such amount is to be recovered from Shri M.R.K. Rao. The question as to recovery of such amount of 50% of such loss from the petitioner is also neither in accordance with the Regulation of the Corporation nor according to the provisions of law as it would amount to punishment without any trial. It is needless to say that the charge on this account also has not been proved by the Enquiring Officer, of course the Appellate Authority would decide on this aspect while taking final view on this matter. Moreover, when the Corporation has raised Insurance claim for the loss/damage of goods, same loss/ damage should not be construed as misappropriation under law recoverable from the petitioner. Moreover, when the Corporation has raised Insurance claim for the loss/damage of goods, same loss/ damage should not be construed as misappropriation under law recoverable from the petitioner. Be that as it may, withholding of gratuity and other retiral benefits for the loss caused to the Corporation being premature and also the precondition of withholding of gratuity being de hors to the provision of law, the order vide Annexure-1 in this regard is illegal, improper and cannot be sustained in law. 25. It is reiterated that the order of recovery vide Annexure-1 about less collection of H/T bills and balance amount towards shortage of sugar vide Item Nos. 1 and 2 being not departmentally enquired cannot be said to be valid order of recovery from the petitioner. 26. From the foregoing discussions, Annexure-1 is found to be illegal, invalid and improper. Point No. (i) is answered accordingly. CONCLUSION 27. Since the petitioner has not been terminated from service but has been superannuated, Section 4 (6)(a)(b) of the Act is not applicable against him for the recovery of the loss from his gratuity. On the whole, withholding of his entitlement to the gratuity, CPF and unutilized leave salary as detailed in Annexure-1 being de hors to the provisions of law is liable to be quashed. At the same time, the order of recovery of Rs.11,71,840/- being also contrary to the provisions of the Act and the Regulation of the Corporation as discussed hereinabove are also liable to be quashed. On the whole, the Office Order vide Annexure-1 being illegal, invalid is hereby quashed and opposite party Nos. 1 and 2 are directed to pay all the retiral benefits to the petitioner within a period of two months failing which the opposite party Nos. 1 and 2 shall pay such amount with 6% simple interest per annum from the date of superannuation till the date of payment. In the result, the writ petition is allowed.