Entitlement of gratuity
Pradeep
(Querist) 07 February 2014
This query is : Resolved
Respected seniors
I am having some query about entitlement of gratuity of an employee serving in a PSU. An employee during his service tenure was dismissed by the disciplinary authority in connection with submission of fake HSC cert. and also got advantages while on service. Later on while verification was done the concerned board authority replied that the cert submitted by the employee before employer is not genuine and on the basis of that report he was dismissed from service prior to his superannuation during the year 2008. Thereafter he did not claim his gratuity for a period of 4 yrs . Now the ex-employee expired in the year 2014. The deceeased nominee now approached before the management to pay the gratuity of her husband. My question is that whether employer will pay the gratuity to the nominee as it is a clear case of forfeiture of gratuity. Kindly give valuable suggestion on the matter
Devajyoti Barman
(Expert) 07 February 2014
What is the service rule?
Every organisation has separate guideline for fireiture of gratuity.
If cheating is a a ground for forefeiture then he may be deprived of this.
Refer to the service rules.
Pradeep
(Querist) 07 February 2014
Sir, Service rule/standing order is very clear if any employee give false declaration about one's name, father's name, age, qualification which is a grave misconduct under certified standing order and is liable for punishment like dismissal.
Devajyoti Barman
(Expert) 07 February 2014
Then his gratuity is liable to be forefieted.
Dr J C Vashista
(Expert) 08 February 2014
No gratuity will be paid by the employer.
Rajendra K Goyal
(Expert) 08 February 2014
Gratuity is not payable till specifically mentioned to pay in the termination order.
Guest
(Expert) 08 February 2014
First of all, please state whether your query is for and on behalf of the nominee for gratuity or the management of the PSU?
Secondly, when you know that it is a clear case of forfeiture of gratuity, can you ste the purpose to be served by the suggestions of the experts?
T. Kalaiselvan, Advocate
(Expert) 08 February 2014
Mr. Dingra's questions on the subject query are genuine, let the author answer them first.
Rajendra K Goyal
(Expert) 08 February 2014
Agree, the question raised by the expert PS Dhingra ji need to be replied by the author.
Isaac Gabriel
(Expert) 08 February 2014
From the given facts,the employee has been dismissed from service for moral turpitude.So not eligible to get gratuity.
Kumar Doab
(Expert) 08 February 2014
>>> You have posted that:
“Thereafter he did not claim his gratuity for a period of 4 yrs .”
“My question is that whether employer will pay the gratuity to the nominee as it is a clear case of forfeiture of gratuity.”
>>> Does dismissal per se warrant forfeiture of gratuity? Can forfeiture of Gratuity be deemed automatic with orders of dismissal?
No.
Only in the case of termination of employment by way of dismissal on account misconduct (s) specified Sec. 4 (6) (a) (b): (i) or (ii)
The forfeiture is either partial or total.
In your case you have forfeited the gratuity: Totally.
>>> An employer has to take an independent decision after the termination of service of an employee ::: whether the gratuity payable should at all be forfeited in Sec. 4 (6) (a) (b): (i) or
(ii)……………………..and to what extent?
The decision necessarily depends upon the facts and circumstances of the case e.g. length of service, past record, extent & magnitude of offence etc..
Therefore decision should be taken after following the process of natural justice.
Employer should give proper show cause notice to the employee concerned and should consider reply and rebuttal if any.
Did you issue show cause notice and did your elaborate what documents you have in hand?
>>> While the company has passed the order of dismissal, did the company issue speaking order of forfeiture of Gratuity?
Payment of Gratuity Act 1972 is a self-contained act containing full provisions covering all essential feature of a scheme for payment of gratuity. It creates the right and lays down the principles for qualification of gratuity.
The Act contains elaborate provisions for forfeiture of gratuity too.
“Forfeiture order is a quasi-judicial order. It is well settled law that an order forfeiting the due pension and gratuity is a quasi judicial and it has got to be passed after due compliance of the principles of natural justice because it deprives the employee of his fundamental right of the property and it must be reasonable and speaking order.”
>>> Standing Orders/Model Standing Orders usually prescribe what acts and omission would constitute misconduct.
What would constitute moral turpitude would depend on the circumstances of a particular case.
>>> Has the employer responded to the legal heir?
>>> In an exactly similar case court of law did not concur with decision of Total Forfeiture of Gratuity and provided compensation.
Dr J C Vashista
(Expert) 09 February 2014
Very well explained by Mr. Kumar Doab, I appreciate.
Pradeep
(Querist) 09 February 2014
Thanks Mr Doab for excellent reply.
Kumar Doab
(Expert) 12 February 2014
Dr. J.C. Vashista,
Sir,
Many Thanks.
KumarDoab
Kumar Doab
(Expert) 12 February 2014
@ Pradeep,
Pls respond to the points raised by Shri P.S.Dhingra for complete resolution, and quote Gratuity rules of the PSU.
