pf withdrawal after termination
swaroop
(Querist) 04 March 2015
This query is : Resolved
Sir I am terminated. I want to challenge my the illegal termination. Even then can I draw pf. Will it effect the case in future. Also can I take gratuity amount with conditions
Guest
(Expert) 04 March 2015
You can withdraw.
Kumar Doab
(Expert) 04 March 2015
This is an interesting thread.
It has been believed that withdrawal of PF and Gratuity can affect the case.
The experts are requested to provide citations also.........and moderate this thread.
Guest
(Expert) 04 March 2015
Dear Kumar,
The organisation considers the employee's relations to have been severed on his termination. So, neither the organisation nor the employee need to wait for withdrawing his terminal benefits pending any action on the part of the employee or decision by the court of law. His terminal benefits are to be granted, as restrictive provisions about interest after certain time becomes the net loss to the employee for want of submission of claim on his part.
However, later, if he is reinstated on the basis of court judgment, he is required to refund the gratuity drawn by him, as the same is permissible at the end of the service on his termination/ retirement/ superannuation. But, he is not required to refund the PF once withdrawn.
Kumar Doab
(Expert) 04 March 2015
Shri P.S.Dhingra,
Sir,
I concur with elaboration provided by you.
This is precise reason the employee shall account.
The querist/author also wants to consider to withdraw and seems to have decided to contest the termination order.The counsel of the establishment is likely to contest that withdrawal amounts to acceptance of termination order and thereafter there is no scope to agitate.
In such matters the citation shall help.
Therefore kindly suggest some decisions.
P. Venu
(Expert) 05 March 2015
There cannot be any decision accepting such empty contentions from the employer.
Anirudh
(Expert) 05 March 2015
It is a fact that gratuity is payable at the end of the service. Therefore it will be untenable to challenge the 'termination' on the one hand and at the same time trying to take advantage of the same 'termination' for the purposes of claiming gratuity!
PF stands on a completely different footing. One can take 'advance' or 'final withdrawal' of a portion (not entire amount lying in credit) even during one's service.
In any case, it will be advisable that the querist not to seek gratuity pending finalization of his challenge of the termination.
Guest
(Expert) 05 March 2015
As per section 4 of the Payment of Gratuity Act, except in the case of indiscipline, etc., gratuity shall be payable to an employee on the termination of his employment. So, once terminated, irrespective of whether he is reinstated later by any reason, on termination he becomes entitled to get gratuity.
Even if gratuity is paid, employee's right to contest against injustice cannot be denied or overruled, as Government of India or any state has not yet framed any such rule that can make the employee lose his right to challenge any wrong done to him merely on the ground that he has already been paid gratuity. If the counsel of the establishment is likely to contest on the basis of the gratuity having been paid, that does not mean that the counsel of the petitioner should remain inert to accept his plea and should not counter that effectively and to ask the opposite counsel to prove his contention on the basis of the relevant section of the Act or the provisions of rules on the subject.
That is my interpretation of law and rules on gratutiy. Rest depends on the individual interpretations of other experts.
However, it depends solely upon the sweet will of the employee, whether to draw or not the gratuity amount, if he has any fear or doubt of losing his case on that ground.
R.K Nanda
(Expert) 05 March 2015
no more to add.
Anirudh
(Expert) 05 March 2015
Dear Mr. Dhingra,
Pl. appreciate.
Nobody says that the employee is not entitled for gratuity upon termination.
The simple and straight question is - the employee does not treat the termination as valid. That's why he is before the judicial forum challenging the same.
If that be the case, where is the question of the employee asking for 'gratuity'? If he asks, is he not unwittingly accepting the order of termination? He cannot blow hot and cold at the same breath - on the one hand challenging the termination and at the same time trying to take advantage of the termination to claim the gratuity.
If the organization itself pays the gratuity as it has terminated the employee that is altogether another matter.
Rajendra K Goyal
(Expert) 05 March 2015
The employee can withdraw PF and gratuity under his service conditions.
Guest
(Expert) 05 March 2015
Anirudh ji,
Assumptions can be very many. I have given my interpretation based on the law and the rules on gratuity. I have also stated that it depends solely upon the sweet will of the employee, whether to draw or not the gratuity amount, if he has any fear or doubt of losing his case on that ground. Moreover, if he wants to challenge the order on one hand and claim gratuity on the other, he should engage a smart lawyer to defend his position on both issues simultaneously at a time, as law does not prohibit payment of gratuity on his termination. Reinstatement is the future thing that depends upon how the case takes turn depending upon the talents of the lawyer of either side.
Kumar Doab
(Expert) 05 March 2015
I concur with the elaboration in latest post, too, of Shri P.S.Dhnigra.
The employer is under statutory obligation to tender the payment of Gratuity in case of separation (by termination) in the instant case............and tender interest for the delayed period;Sec7.........even if NO application is made by the employee (that has been terminated in the instant case).....
Reference of Section:9 may be drawn............(and word 'WHOEVER' in it)...........and the provisions of penalty and punishment with jail time.........to whoever that contravenes the provisions of the Act and avoids to pay Gratuity.........This whoever can be either employer or HR personnel designated top process the claim...................It is obvious that employer shall push the HR forward and won't offer his neck......
There have been publications that if PF/Gratuity was withdrawn adverse view was taken...............It is also known that counsels in their respective states look at decisions made by the High Courts in their states.....
In such threads it is reiterated that sufficient citation of judgments be made and decisions be discussed.
Experts are requested to mention the decisions......it shall help the querist and one and all.
I am of the opinion that the querist has already consulted and is looking for opinions substantiated with decisions.....
In this thread wholehearted citations may please be made and discussed.
The matter is worth it.
The citations and moderation by experts is certainly required.
Sudhir Kumar, Advocate
(Expert) 07 March 2015
the views expressed by Mr DHingra are well reasoned and final.
Let the employee consider the termination as not valid. Notwithstanding this it is a termination whereby gratuity becomes payable.
The rules do not require the employee to welcome the termination and only then the gratuity shall be payable.
P. Venu
(Expert) 07 March 2015
I agree. Employment ceases with the removal or dismissal of the employee, not on the final payment of the consequential entitlements.
Moreover, judicial remedy is a fundamental right and judicial review is an integral part of Rule of Law. If the proposition that an employee loses his right for judicial remedy against illegal or irregular employment if he opts to receive terminal benefits, a clever employer can resort to entice the employee to accept those benefits and foreclose any judicial challenge to the abuse of power. As such, any proposition to this effect would be a short prescription destructive and dismissive of Rule of Law.
Anirudh
(Expert) 07 March 2015
There is a vast difference between the obligation of the employer to PAY the gratuity to the terminated employee and the employee who is challenging the order of termination seeking payment of gratuity. An employee cannot seek payment of gratuity when he does not accept the order of termination and has raised a challenge to the same before appropriate forum.
T. Kalaiselvan, Advocate
(Expert) 08 March 2015
I fully agree with the views and opinions of expert Mr. Dhingra on the subject matter and in my opinion they are found to be more suitable. It again depends on how one interprets the issue in his favor to bend the laws. However the entire discussions by all the experts were really very useful and informative.
Kumar Doab
(Expert) 10 March 2015
The querist want to write conditional acceptance………………..and has visibly consulted.
The querist should not write or accept anything until it has passed the trained legal eyes of his able lawyer and cleared by trained legal mind of his able counsel.
The thread is interesting and demands whole hearted citations and discussion for benefit of one and all………………………….
The lawyers shall look at the judgments delivered by courts of law………
Mr. P.Venu has used the precise words in his post that "a clever employer can resort to entice the employee to accept those benefits and foreclose any judicial challenge "
Mr. Dhingra has uprightly pointed out that "law does not prohibit payment of gratuity on his termination. Reinstatement is the future thing that depends upon'.....
Mr. Anirudh has taken the discussion further with his last post.
There seems to be no rule that employee has to accept and approve the termination order……….and courts of law have also upheld it since many years………….
I am quoting a very old judgment of Madhya Pradesh High Court and a recent judgment of Supreme Court of India……………
The employer had disbursed PF,Gratuity, and obtained signature of employee on FnF and claimed that passing of this receipt constituted an act of waiver on the part of Mukund giving up his right of questioning the legality of the order terminating1 his services……………whereas the court declined to buy the contentions of the employer…………
Limitation Act is not applicable………………………when deciding Industrial Dispute raised by a Workman…../ NO Time Limit for Raising Industrial Dispute
Madhya Pradesh High Court
Hira Mills Ltd. (By Manager) vs Mukund Sonubhaiya Pandit And Ors. on 1 May, 1968
http://indiankanoon.org/doc/1965872/?type=print
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8434 OF 2014
(Arising out of SLP(C) NO. 22487 of 2012)
RAGHUBIR SINGH ………APPELLANT
Vs
General Manager Haryana Roadways Hisar
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41871
There is lot of scope for further discussion and illustration in this thread………………..
Since there are varied judgments the Lawyer won't like to err since the decision is at the pleasure of the court............
Moderation, commentary,narration,illustration by experts and citations of judgments of High Courts,Apex court is requested...............and it shall benefit everyone in all corners of the nation.....
Kumar Doab
(Expert) 13 March 2015
@ Swaroop/Querist,
You can also post the judgments that are bothering you.
