JUDGMENT : 1. Heard learned counsel for the petitioner and the learned Standing Counsel for the State respondents. 2. The petitioner challenges an order of 30 March 2019 pursuant to which a sum of Rs. 15,48,890/- representing the gratuity payable in respect of the services rendered by her late husband had been retained and withheld. The following essential facts may be noticed for the purposes of disposal of the instant writ petition. 3. The husband of the petitioner admittedly died while serving under the respondents on 22 September 2018. Subsequent to his untimely death, the respondents issued a show cause notice of 03 December 2018 calling upon the petitioner here to show cause why the aforesaid amount held under the head of gratuity be not recovered. According to the respondents, during the last posting of her husband at a particular warehouse, important records were found to be missing. The respondents asserted that those vital records were not handed over by her husband and therefore, action was liable to be taken against him. They additionally alleged that a stock of 407 bags of rice could not be accounted for. It was essentially asserted that the actions of the employee resulted in the State suffering a loss of Rs. 5,41,946.80/-. The petitioner submitted a reply to the aforesaid notice and asserted that the loss as alleged could not be attributed to any act of misconduct of her husband and that in any case the adjustment of loss of Rs. 5,41,946.80/- from the gratuity which was payable was wholly illegal. 4. By a detailed order passed on this petition on 27 May 2021 a learned Judge, as an interim measure provided that out of the entire amount payable towards gratuity a sum of at least Rs. 10,06,943.20 may be released. This direction appears to have been issued to safeguard and balance the interests of respective parties and enabling the respondents to retain gratuity only to the extent of the loss allegedly suffered by them. In compliance with the aforesaid interim direction issued by the Court, a sum of Rs.10,02,893/- was thereafter released in favour of the petitioner on 16 June 2021. That only leaves the Court to deal with the issue of retention of the amount equivalent to the alleged loss caused to the respondents. 5. In compliance with the aforesaid interim direction issued by the Court, a sum of Rs.10,02,893/- was thereafter released in favour of the petitioner on 16 June 2021. That only leaves the Court to deal with the issue of retention of the amount equivalent to the alleged loss caused to the respondents. 5. Assailing the aforesaid action, learned counsel for the petitioner has firstly placed reliance upon the provisions made in Section 4(6) of the Payment of Gratuity Act 1972 and contends that the gratuity as payable could not have been forfeited by the respondents since the services of the husband of the petitioner had neither been terminated for an act which may have amounted to a misconduct nor for an offence involving moral turpitude. It was further submitted that admittedly the services of the petitioner's husband had also not been brought to an end for any act or omission or any alleged damage or loss caused to the respondents. The aforesaid submissions were essentially advanced since the respondents did not initiate any proceedings or pass any orders of punishment during the lifetime of her husband. Regard may be had to the fact that upon a bare reading of Section 4(6) of the 1972 Act, it is evident that in the absence of an order of termination having been made against a government servant, no part of gratuity could have been retained or forfeited by the respondents. 6. However, for the purposes of adjudging the correctness of the submission as noted above, it would be relevant to note that so far as retention of gratuity is concerned, it would have to be evaluated not just on the strength of the provisions made in the 1972 Act but also with reference to the various provisions as made in Civil Service Regulations as applicable in the State of U.P. This would manifest from the discussion that follows. 7. Regulation 351-A empowers the respondents to withdraw or withhold pension, or any part of it, permanently or for a specified period as also the right to order recovery from pension the whole or any part of a pecuniary loss caused to the Government if the pensioner has been found in departmental or judicial proceedings to have been guilty of grave misconduct or having caused loss to the Government. The provisions of Regulation 351-A read thus:- "[351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement; Provided that— (a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment— (i) shall not be instituted save with the sanction of the Governor, (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during reemployment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Public Service Commission, U.P. shall be consulted before final orders are passed. [Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings, (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult the Public Service Commission]. Explanation—For the purposes of this article— (a) Departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a Civil court." 8. It also becomes relevant to note here that the expression "pension" has been defined in Article 14 of those Regulations as follows: - "41. Pension--Except when the term "Pension" is used in contradistinction to Gratuity, "Pension" includes Gratuity." 9. Article 14 thus clarifies that the word "pension" is to be understood as a compendious term which would ordinarily include both pension and gratuity and is to be interpreted as excluding gratuity only where that word is used “in contradistinction to” pension. Significantly, Regulations 351-A does not make that distinction between pension and gratuity. 10. The Court then proceeds to consider whether the impugned action of the respondent can be sustained on the strength of Regulations 351-A. While it is true that the aforesaid provision does authorise the respondents to withdraw or withhold pension in the case of a gross misconduct having been committed by a government servant or where a pecuniary loss is caused to the Government, the crucial aspect which needs to be borne in mind is of that provision placing a precondition of that government servant having been “…found in departmental or judicial proceedings to have been guilty of….” that misconduct or the act of having caused pecuniary loss. The proviso to Regulation 351-A further postulates that if such departmental proceedings were not drawn or initiated while the government servant was in service and before he attains the age of superannuation, they shall be initiated only with the sanction of the Governor. Thus, that Regulation covers the twin situation of where a government servant has while in service been found guilty of grave misconduct or having caused loss as well as where in proceedings drawn or continued after his superannuation with the sanction of the Governor, a finding of guilt has come to be recorded. However, action under the aforesaid Regulation is precipitated and prompted by a finding of guilt which may come to be recorded in departmental proceedings whether initiated before the retirement of the government servant or thereafter in accordance with the safeguards and preconditions set forth in that provision itself. Apart from Regulation 351-A, the Court also take note of the provisions made in Regulation 351-AA and 919-A. Regulation 351-AA prescribes that in the case of a government servant retiring at a time when departmental or judicial proceedings are pending, he would be entitled to only a provisional pension. Apart from Regulation 351-A, the Court also take note of the provisions made in Regulation 351-AA and 919-A. Regulation 351-AA prescribes that in the case of a government servant retiring at a time when departmental or judicial proceedings are pending, he would be entitled to only a provisional pension. Regulation 919-A envisages the payment of a provisional pension equal to the maximum pension which would otherwise have been admissible, in cases where an employee retires while departmental or judicial proceedings are pending. Significantly sub-clause (3) of Regulation 919-A mandates that no death-cum-retirement gratuity shall be paid till the conclusion of departmental or judicial proceedings. 11. The issue which however confronts this Court in the factual background of this case, and which was noticed in the introductory part of this decision, is whether the impugned action can be sustained under the aforenoted Regulations in the absence of any proceedings having been drawn and findings of guilt having come to be recorded against the erstwhile employee in accordance with the procedure laid in place and noticed above. To that the Court finds in the negative and against the respondents for the following reasons. 12. Admittedly, no proceedings as envisaged under Regulation 351 A were ever initiated against the husband of the petitioner who admittedly died while in service. No departmental proceedings were either drawn or were pending at the time of his demise. Sub-clause (3) of Regulation 919-A would also not save the impugned action since the power to retain gratuity is dependent upon the pendency of departmental or judicial proceedings as defined under the Regulations. 13. A Full Bench of the Court in Shivagopal And Others v. State of U.P. And Others [ 2019 (5) ADJ 441 (FB)] while dealing with the scope and ambit of the aforenoted provisions made in the Civil Service Regulations held thus:- “.. 24. Article 366 of the Constitution of India contains the definitions for the purposes of the Constitution and in Clause 17 is defined 'pension' to include 'gratuity' as well. This definition of 'pension' in the Constitution also indicates that conceptually the term 'pension' includes 'gratuity'. In Article 41, of Civil Service Regulations the term 'pension' is defined to include 'gratuity' except when the term pension is used in contradiction to gratuity, in consonance with the basic concept. .. 28. This definition of 'pension' in the Constitution also indicates that conceptually the term 'pension' includes 'gratuity'. In Article 41, of Civil Service Regulations the term 'pension' is defined to include 'gratuity' except when the term pension is used in contradiction to gratuity, in consonance with the basic concept. .. 28. From the definition of 'pension', it is clear that ordinarily the word 'pension' wherever used in the Civil Service Regulations includes 'gratuity' except when the term 'pension' is used in contradistinction to 'gratuity'. We accordingly hold that the term 'pension' would include 'gratuity' particularly in Article 351, 351-A of the Civil Service Regulations. … 48. On joint reading of Article 351 and 351-A of the Civil Service Regulations clearly indicates that the State Government/Governor reserves to itself the power and right to withhold or withdraw pension or part thereof, whether permanently or for specified period or to order recovery from pension of the whole or part of any pecuniary loss caused to the government in the following eventualities: i. pensioner be convicted of serious crime; ii. pensioner be guilty of grave misconduct; iii. pensioner having caused pecuniary loss to the government by misconduct or negligence, during service including service rendered on reemployment after retirement; iv. The power under Article 351 and 351-A can be invoked by the Governor/State Government upon conclusion of disciplinary/judicial proceedings and not at the inception of the proceedings. In other words, the condition precedent for exercise of power under these Articles is on conclusion of the proceedings and order being passed thereon by the competent authority. … 57. Article 351-AA and 919-A get invoked in the event of pending departmental/judicial proceedings or an enquiry by Administrative Tribunal against the government servant. As against Article 351 and 351-A is invoked upon the outcome of the disciplinary/judicial proceedings. It follows that where the government servant retires on attaining the age of superannuation or otherwise and against whom any departmental/judicial proceedings or any enquiry by the Administrative Tribunal is pending on the date of retirement or to be instituted after retirement, the following consequences flow: (i) government servant is entitled to provisional pension equal to maximum pension; (ii) no gratuity is payable pending departmental/judicial proceedings or the enquiry; (iii) full pension (commutation of pension) and gratuity is payable upon conclusion of the pending departmental/judicial proceedings/enquiry and final order being passed thereon by the competent authority. ... ” 14. ... ” 14. As explained in Shivagopal, action under Regulations 351A, 351-AA and 919-A is set off by drawl of proceedings for trying allegations of misconduct or pecuniary loss against a government servant prior to his attaining the age of superannuation or proceedings while initiated earlier, continuing post the retirement of the employee. The action of the respondents assailed here could have been upheld only if it could have been established as falling within the ambit of the aforenoted provisions. However as is evident from the facts of the present case, no disciplinary proceedings were ever initiated by the respondents against the husband of the petitioner prior to his untimely death while serving under the respondents. No departmental proceedings which may have been formally drawn were continued after his death. The attention of the Court has not been drawn to any other provision which may empower the respondents to recover or forfeit the loss allegedly caused. 15. In view of the aforesaid conclusions, the instant writ petition is allowed. The impugned order of 30 March 2019 is quashed. The remainder amount of gratuity which has been retained by the respondents shall consequently be released to the petitioner expeditiously and preferably within a period of three months from today.