Leave enachment
balaji r
(Querist) 21 October 2016
This query is : Resolved
Sir, whether the employee is eligible for encashment of leave in the case of
dismissal.
2.What about the payment of gratuity when
there is no loss or moral turpitude?
3. Whether penalty of dismissal is enough
for denial of payment of gratuity?
4. When there is no mention in the Penalty
order about gratuity in the case of dismissal, what is the status?
Devajyoti Barman
(Expert) 21 October 2016
Yes, he is.
If in DP he is found to have been guilty of making defalcation of fund then terminal benefits are deducted. Else not.
Sri Vijayan.A
(Expert) 21 October 2016
Entitled for Leave encashment.
No gratuity
Penalty advice shall not contain about the termination monetary benefits. The order containing Monetary matters shall follow.
Kumar Doab
(Expert) 21 October 2016
You have posted that:
"What about the payment of gratuity when
there is no loss or moral turpitude?"
If there is no loss then why should gratuity be withheld?
Has any speaking order for forfeiture of gratuity, after opportunity of hearing and natural justice been passed?
Rajendra K Goyal
(Expert) 21 October 2016
terminal benefits are not payable after termination till DP orders / service conditions mention otherwise.
Gratuity is terminal benefit.
Leave encashment should be paid.
Kumar Doab
(Expert) 21 October 2016
Post the extent service conditions.
P. Venu
(Expert) 21 October 2016
The facts posted are incomplete.
Ms.Usha Kapoor
(Expert) 22 October 2016
I've thoroughly examined the relevant rules. In case of a dismissed employee Earned Leave and gratuity would not be paid by the Government as A GENERAL RULE. but IN EXTREME CASES DEPENDING UPON facts and circumstances of each case El may be allowed to get encashed as in the below mentioned case of verdict..IN Shri Radhemohan vs. Delhi Road Transport Corporation, A central Administrative Tribunal Delhi verdict the above things were upheld and also the supreme court decisions were also quoted.Now let us see the operative part of this decision.If you appreciate this answer please click the thank you button on my profile.
The gratuity payable to an employee [may be wholly or partially forfeited] 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 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. In the instant case, there is no dispute about the applicants involvement in a criminal case under Section 302, 321 and 34 of IPC. His offence in the said criminal case is covered under Section 4 (6) (i) and the relevant clause is any other act of violence. There is no conflict between the said provisions of the Act and DTC Regulations.
11. In view of the above statutory provisions, we may refer to the relevant judgments of Honble Apex Court in Management of Tournamulla Estate Versus Workmen [AIR1973SC2344] three member bench of the Hon'ble Apex Court considered the issue of whether the workmen dismissed for misconduct, the gratuity could be forfeited under Section 4(6)(b) of the Gratuity Act 1972? Referring to the decision of in the Delhi Cloth Mills case (supra) (AIR 1970 SC 919)and Remington Rand of India Ltd. v. The Workmen (AIR 1970 SC 1421) the Hon'ble Supreme Court categorised misconduct into three kinds, (1) technical misconduct which leaves no trial of indiscipline; (2) misconduct resulting in damage to the employer's property which might be compensated by forfeiture of gratuity or a part thereof, and (3) serious misconduct such as acts of violence against the management or other employees or disorderly behaviour in or near the place of the employment, which though not directly causing damage is conducive to grave indiscipline. The first should involve no forfeiture, the second may involve forfeiture of an amount equal to the loss directly suffered by the employer in consequence of the misconduct, and the third will entail forfeiture of the gratuity payable to the workman. According to this decision, if a workman is guilty of a serious misconduct of the third category his gratuity can be forfeited in its entirety, and in case of the first type no forfeiture of gratuity is admissible.
12. We also referred to the judgment of Honble Supreme Court in Y. P. Sarabhais case (supra). Though facts in the said case are different from the facts in the instant TA but the law laid by Honble Apex Court that the dismissed employee is not entitled to gratuity. The pertinent part of the judgment is as follows:-
11. We have considered the submissions made by both sides. Irrespective of order of dismissal of the appeal filed by the appellant, we feel that the request fervently made by the counsel for the appellant should be sympathetically considered to meet the ends of justice. The appellant was dismissed from service on 4.9.1998. He is without pay for all these years in view of the order of dismissal. According to the appellant, his wife also died of cancer. It is settled law that a person who is dismissed from service is entitled to get only the provident fund but no gratuity.
13. There is no dispute about the fact that the offence committed by him was not in the course of his employment but it was outside his normal call off duty. But the competent authority has already considered the nature of offence for which the applicant was convicted and decided that the said conviction is sufficient to dismiss him from service. Gratuity is earned by an employee by virtue of his service over a period with his employer and his good conduct is a condition precedent for continuance in service. It is noted that the DTC has adopted the Payment of Gratuity Act 1972 in 1975 and has been implementing. The Provisions of Section 4 (6) (a) does come into operation when there is a termination or dismissal on the grounds set out in that sub section. The statutory provision for forfeiture must be construed strictly. In case the termination / dismissal (in case of the present TA), if the grounds of such termination does come within the ambit of Section 4 (6), the forfeiture of gratuity is admissible irrespective of the fact whether applicant has spent long years of service or not. Just because of his dismissal, his past service is washed away and does not entitle to him the benefit like gratuity admissible to a normally superannuated employee.
14. We note that the Regulation was framed much before the Gratuity Act came into force and the vires of the said provision of the Regulation is not under challenge. However, we do not find any conflict between the two. In respect of the present case dismissal of the applicant though was not the result of any misconduct committed in discharge of his duties but due to his conviction in a criminal case, it must be noted that his involvement in the act of violence which resulted in his conviction, he was dismissed from service on that count. This act for which he was convicted constitutes an offence involving moral turpitude. In our considered opinion the penalty of dismissal from service on the count of his conviction is sufficient ground to deny him the gratuity. We do not find any conflict between the Gratuity Act and the relevant provisions of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 and the Delhi Road Transport Authority (Employees Provident Fund) Regulations, 1953.
15. In view of the above, we are of the considered opinion that the applicant is not entitled to the gratuity.
16. We may refer to the next issue pertaining to the applicants claim of leave encashment. We find from the averment that the applicant has accrued leave to his account over 37 years of service. As per rules, the periodic leave encashment was permitted to him when he was in service. At the time of his dismissal he avers that he has accumulated about 30 days of leave, which he has not availed as per the normal rule. The leave accrues to the employee during his service, which he is entitled to avail. In the alternative, he can realize the same through leave encashment as may be admissible to him as per the Rules. Dismissal due to his conviction in a case though not directly or indirectly related to his employment deprived him to encash the balance leave standing to his credit.
17. The applicants counsel argued that CCS (Pension) Rules and CCS (Leave) Rules permit the payment of leave encashment amount to the dismissed employees. These provisions will cover the applicants case. The counsel for the DTC submitted that those Rules would not be applicable to the applicant as specific provision in the DRTA (Conditions of appointment & service) Regulations 1952 provided the leave encashment aspects.
18. There has been reference to the Regulation 14(13) to state that the leave standing in the name of the employee lapses if the employee is dismissed from the service. The stand of the respondents is that applicant has been dismissed from service and as per the said Regulation the applicant is not entitled to the leave encashment. We may take below extract of the said Regulations:-
(13) All leave at the credit of an employee shall lapse on the date of retirement or termination of service but earned leave applied for in writing during service and refused in writing by the Authority competent to grant leave in the interest of the Organisation may be granted subject to a maximum 6 months on retirement or termination of service except in the case of dismissal or removal from service.
19. The counsel for the applicant referring to two judgments of Honble High Court of Delhi would contend that despite the provisions in the Regulations the law laid by the Honble High Court of Delhi would prevail. The learned counsel for the applicant placed his reliance on the decisions in LAC R Bhaskaran versus Union of India and Others (CWP No. 3545 of 2002 decided on 11.9.2002) and Ex. Lt Col. S. S. Panglia versus Union of India ( WP [ C ]No. 6955 of 2008 decided on 23.9.2008). The Honble High Court followed its decision in Bhaskarans case (supra) in Panglias case(supra). We may, therefore, briefly state the facts of Bhaskarans case (supra) . The petitioner who requested to be discharged from the post of Sergent was court martialed and dismissed from service for unauthorized and over stay vide order dated 2.4.2000 and he approached the High Court in the aforesaid Writ inter alia praying for pension, gratuity and leave encashment. While holding the claim of pension and gratuity inadmissible to the petitioner, the Honble High Court decided in favour of the petitioner in so far as the leave encashment is concerned. We may take the extract of the pertinent para of the judgment in Bhaskarans case (supra) which reads thus:
21. The Central Government hving adopted a scheme for grant of leave encashment, if leave is not availed of by an employee, in our opinion, the same would be paid to a personnel, dispute the fact that he was dismissed from Government service. Once a provision is made for payment of certain amount by way of leave encashment, it becomes akin to a right of property in terms of Article 300A of the Constitution of India. Such a right can neither be taken away nor curtailed by reason of a mere circular. We, therefore, are of the opinion that the petitioner herein will be entitled to leave encashment.
Question No.2 is answered accordingly.
22. This writ petition is, thus, disposed of directing the respondents to pay leave encashment benefit to the petitioner at an early date and preferably within a period of twelve weeks from the date of communication of this order. No order as to costs. The above judgments are qua the petitioners. Honble High Court took cognizance of the enabling provisions for payment of leave encashment and a circular cannot take away the right. In the instant case facts are different. The Regulation 1952 provides for both payment of leave encashment and denial on certain conditions. Regulations 14 (13) extracted above excludes the removed/dismissed employees for the entitlement of leave encashment. Hence, we are of the considered view that both judgments are not applicable for the present TA.
20. We are of the considered view that the applicant being not eligible for the leave encashment, the respondents are not duty bound to pay him the same.
21. In view of the statutory provisions of the Payment of Gratuity Act, 1972, the Regulation 15 (2) (vii) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 and the Delhi Road Transport Authority (Employees Provident Fund) Regulations, 1953 and the settled legal position, we come to the considered conclusion that the applicant has no right to gratuity and there are no grounds admissible under the Regulations to allow the applicants right to claim leave salary.
22. Taking into account the totality of the facts and circumstances of the case and extant Regulations on the subject of gratuity and leave encashment, we are of the considered opinion that the applicant has not made a case in support of his claims. In the result, the TA being devoid of merits is dismissed. There shall, however, be no order as to costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member(J) Member (A)
/pj/
Guest
(Expert) 22 October 2016
Although your query is of academic nature, but still replies to your questions are as under:
1) No
2) Not admissible
3) Yes
4) Penalty order does not contain any extraneous issue other than the decision on the charge. Gratuity is regulated under the Payment of Gratuity Act. Order under CDA Rules automatically affect the other entitlements as per the provision of various statutory provisions.
Rajendra K Goyal
(Expert) 22 October 2016
Can be benefited from the advice from senior expert P.S. Dhingra ji.
