MHD AYAJ KHAN (MANAGER STORES) 28 October 2013
Sir,
my father's company didn't pay gratuity amount after retirement due to some loan balance on a credit co-operative society.
its co-operative society and father's company done agreement that is recovery the loan amount by workers.
my question is father's company eligible to hold and deduct gratuity amount.
Request to advise.
Regards,
Ayaz Khan
9604562227
Kumar Doab (FIN) 28 October 2013
Who is the employer: private sector, Govt, PSU.
The service rules, agreement should be looked into.
In the meantime you may go thru the following judgement that can help you to decide the future course of action to be taken by you
Kumar Doab (FIN) 31 October 2013
Given below are the judgments delivered by Supreme Court of India and other courts taking light from it that implies retrial benefits can not be attached and even after the retrial benefits reach the hands of retiree these do not loose their character.
>> Code of Civil Procedure, 1908
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60. Property liable to attachment and sale in execution of decree.- (1) |
Provided that the following particulars shall not be liable to such attachment or sale, namely:—
(g) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer, or payable out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pension;
{{ https://www.lawzonline.com/
>> Supreme Court of India
Radhey Shyam Gupta vs Punjab National Bank & Anr. on 4 November, 2008
https://indiankanoon.org/doc/
“………..amounts paid towards gratuity and pension could not be attached in view of the provisions of proviso (g) of Section 60(1) of the Code of Civil Procedure”
15…………….“the appellant's Fixed Deposits which represented his retiral benefits could not be attached or sold to satisfy the decree obtained by the Decree Holder Bank. She urged that even after the retiral benefits obtained by the appellant had been converted into Fixed Deposits it did not lose its essential character of comprising the retiral benefits of the appellant, and could not, therefore, be attached in view of proviso (g) to Section 60 (1) of the Code.’
“finds support in the decision of this Court in Calcutta Dock Labour Board and another v Smt. Sandhya Mitra and Others [(1985) 2 SCC 1], wherein it was reaffirmed that gratuity payable to dock workers under a scheme in absence of a 14
Notification under Section 5 of the Payment of Gratuity Act, 1972, would not be liable to attachment for satisfaction of a Court's decree.”
17……………… where while dealing with the provisions of Sections 3 and 4 of the Provident Funds Act, 1925, prohibiting attachment of sums held by the Government, as well as proviso (g) to Section 60(1) of the Code, this Court held that till such time as amounts payable by way of provident fund, compulsory deposits and pensionary benefits did 15
not reach the hands of the employee they retained their character as such and could not, therefore, be attached.
25……………….” We also agree ……….. that even after the retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be 22
covered by proviso (g) to Section 60(1) of the Code.”
>> The above is also reiterated in :
Andhra High Court
A.K.Dass vs Counsel For Petitioner : Sri M. ...
C.R.P.No.1657 of 2012
https://www.indiankanoon.org/
>> The above SC decision is also reiterated in:
Central Administrative Tribunal - Ernakulam
Indian Kanoon - https://indiankanoon.org/doc/
Central Administrative Tribunal - Ernakulam
C.Gopalan, S/O Keeran vs Union Of India Represented By ... on 21 March, 2012
ERNAKULAM BENCH
O.A No. 1017/2011
https://indiankanoon.org/doc/
16. The only point left to be considered is that the agreement executed between KSFE and the applicant provides for recovery of the dues by KSFE from the DCRG. The question is whether the same could be stultified by the applicant taking shelter under the protection available under the Pension Rules and whether the Tribunal could be a party for breach of such contract. Answer to this question is not far to seek. As discussed above, the CCS(Pension) Rules do not provide for adjustment from the DCRG of dues other than Government dues. As such, any term in the agreement or contract agreeing for such adjustment is contrary to the provisions of the Rules.
The judgements attached in this thread indicate Gratuity is property and fundamental right.
You may also go thru another thread which you may find relevant and useful.
https://www.lawyersclubindia.com/forum/P-f-gratuity-90740.asp#.UnJ1lyeo1oo
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