Request you to please provide information for F&F settlement benefits eligibility dues for dismissed employee from the company due to misappropriation. Can employee is eligible to claim PF, Gratuity, Payment for PL balance and other arrears.
Employee has worked with the company more than 5years in manager designation.
As I am fresh to HR role, request you to please provide the information.
Regards,
M Sekhar.
From India, Vijayawada
Employee has worked with the company more than 5years in manager designation.
As I am fresh to HR role, request you to please provide the information.
Regards,
M Sekhar.
From India, Vijayawada
After domestic inquiry, the employer can recovery loss suffered by him on account of the dismissed employee in accordance with the provisions of shops and establishment Act and if applicable in accordance with Payment of wages Act out of the wages or arrears payable. His gratuity is liable to forfeiture but EPF has to be paid.
From India, New Delhi
221From India, New Delhi
If guilt of manager is established by proper enquiry,the employer can restrict amounts from gratuity,PL and wages.
Provident fund amount cannot be appropriated towards the misappropriation.
Read sec 4 of Payment of Gratuity Act for better information about what and when can you restrict/forfeit gratuity.
From India, Pune
Provident fund amount cannot be appropriated towards the misappropriation.
Read sec 4 of Payment of Gratuity Act for better information about what and when can you restrict/forfeit gratuity.
From India, Pune
If we dismissed any employee then we have to notice pay salary of 30 days if he worked for more than six month,he is eligible for claiming PF,Grauity & PL balance in F&F Settlement.
From India, Nagpur
From India, Nagpur
Dear Sirs,
Thank you for your reply.
As company has recovered the lose/due amount from the employee, after collected lose to the company, company has issued dismissed order to the company.
Now, employee has claiming to pay his settlements like gratuity, PL balance and other as per his eligibility. Can company has to pay?
Kindly clarify.
Regards,
M Sekhar.
From India, Vijayawada
Thank you for your reply.
As company has recovered the lose/due amount from the employee, after collected lose to the company, company has issued dismissed order to the company.
Now, employee has claiming to pay his settlements like gratuity, PL balance and other as per his eligibility. Can company has to pay?
Kindly clarify.
Regards,
M Sekhar.
From India, Vijayawada
Having recovered losses from the employee, you are required to pay the PL and other arrears because there cannot be double jeopardy for same action. However as far as dues under GRATUITY are concerned, as pointed out by Mr.Nathrao, sec 4 of Payment of Gratuity Act governs about what and when can you restrict/forfeit gratuity. Because of lack of furnishing full information, it is assumed that the employer has passed the dismissal order after conducting the domestic inquiry and in the report the losses have been assessed in pursuant to the finding of misappropriation involving moral turpitude.
The Madras HC observed in the following case that the employer had not made any prosecution in order to put against the petitioner for having committed an offence, as it had chosen to proceed only with the departmental enquiry against the petitioner. Thus forfeiture under section 4(6)(b)(ii) may not be available without prosecution. It may be pointed out that there may be different opinions of HC on it.
Forfeiture under section 4(6)(b)(i) is not now permissible, since the employer in the present case has already recovered the losses. There cannot be double jeopady on a same cause of action.
Madras HC , A. Padmanabhan Vs. Joint Commissioner of Labour, , W.A. Nos. 118 and 144 of 2009, decided on Mar-30-2010
“9. In this context, we may also refer that the object of labour laws, a social welfare legislations, is to afford certain basic entitlements and consequent protection. Such laws cast upon the employer certain obligations for meticulous, impeccable and timely compliance. The law entitles an employee to the benefits which he must receive from the employer unless restricted. The Payment of Gratuity Act is a welfare legislation to provide a scheme for payment of gratuity to all types of employees engaged in the establishments employing ten or more employees. In terms of Sub-section (1) of Section 4, gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, on his superannuation, or on his retirement or resignation, or on his death or disablement due to accident or disease. Nevertheless, Sub-section (6) of Section 4 is somewhat an exemption for the restriction imposed for payment of gratuity in respect of an employee on termination. The legislature with a clear intention has laid down the provision of Sub-clause (a) to Sub-section (6) of Section 4 empowering the employer to forfeit the gratuity of an employee to the extent of the damage or loss so caused in the event the service of such employee is terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer. Likewise, as per Clause (b) of the said provision, the gratuity is payable to an employee may be wholly or partially forfeited, (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part and (ii) 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.
10. As far as the second limb of Sub-clause (ii) of Clause (b) to Sub-section (6), viz., the proved misconduct should be in the course of the employment, there is no dispute. As far as the first limb, viz., whether the act constitutes an offence involving moral turpitude, it may be mentioned that for the falsification of accounts and the consequential financial gain, the respondent had not made any prosecution in order to put against the petitioner for having committed an offence, as the respondent had chosen to proceed only with the departmental enquiry against the petitioner. Even otherwise the proved misconduct should be considered on facts to facts basis to find out as to whether such misconduct would be 'moral turpitude'. In the present case, the allegation is only falsification of accounts and thereby making some financial gain. In view of our above discussion and keeping the facts of this case in mind, we are of the opinion that the respondent cannot apply the provision of Section 4(6)(b)(ii) of the Act to deny the gratuity to the petitioner. To this extent, we do not find any justification to interfere with the order in the writ petition.
11. As far as the writ appeal filed by the petitioner himself regarding the denial of interest, we may point out that the discrepancies relating to the receipt of empty cylinders which led to the falsification of accounts came to light during March 1990. Within a period of four months, a charge sheet was issued on 17.7.1990; an enquiry was completed and a second show cause notice was issued on 22.8.1991 and final order of dismissal was passed on 10.9.1991. On the very same day, a show cause notice for forfeiture of gratuity was issued to the petitioner. The petitioner submitted his explanation on 13.9.1991 and on 9.10.1991, an order was passed forfeiting the gratuity.”
Even if the employer now intends to pursue to forfeit the gratuity, partially or fully, then as held by the Kerala HC, once the employee is terminated from service, a right accrues to the employer to either exercise the right of forfeiture either wholly or partially. In the case of persons terminated from service, a right to forfeit gratuity shall be passed within a reasonable time. Therefore you are required to issue of a notice to withhold the gratuity which cannot be dispensed with. You are required to exercise the option for forfeiture of the gratuity within a reasonable time.
As is evident from para 11 of the above A. Padmanabhan case, show cause notice for forfeiture of gratuity was issued on same date when dismissal order was passed.
Kerala High Court
Hdfc Bank Ltd vs The Regional Labour ...
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935
WP(C).No. 16283 of 2011 (I)
“14. In the present case the contention is that the services of the employee were terminated for an act which constitutes an offence involving moral turpitude. A Division Bench of this Court in K.C.Mathew v. Plantation W.P.(C) Nos. 16283 of 2-011-I & 16286 of 2011 - I Corporation of Kerala Ltd. (2000) III LLJ 637) held that the gratuity being a statutory right cannot be forfeited unless the services of the employee has been terminated for the reasons stated under S.4(6) of the Act. It is not in dispute that if no loss has been caused to the employer, there cannot be any forfeiture under S.4(6)(a). Even in respect of forfeiture under S.4(6)(b), there is a discretion with the employer to forfeit the gratuity either wholly or partially. It depends upon the facts and circumstances of each case. Therefore once the employee is terminated from service, a right accrues to the employer to either exercise the right of forfeiture either wholly or partially. It again depends upon whether the employee is involved in commission of an offence involving moral turpitude. Normally an employee is entitled for gratuity on the date of his retirement or superannuation as the case may be or at least within a reasonable period. In the case of persons terminated from service, a right to forfeit gratuity shall be passed within a reasonable time. Therefore issuance of a notice to withhold the gratuity is a requirement which cannot be dispensed with. In Gujarat State Fertilisers and Chemicals Ltd. v. Surendra T Amin (2005) 1 LLJ 400) the Gujarat High Court has held that the contention regarding forfeiture cannot be raised for the first time before the authority on account of the fact that exception is carved out in S.4 to protect the damage caused to the employer. Further this issue is covered by a judgment of the learned Single Judge of this Court in Dhanalaxmi Bank Ltd. case (supra). In the light of the aforesaid view taken by this Court, I am of the view that the respondent authorities were justified in directing payment of gratuity as the petitioner Bank did not exercise the option for forfeiture of the gratuity within a reasonable time.”
Thanks
Sushil
From India, New Delhi
The Madras HC observed in the following case that the employer had not made any prosecution in order to put against the petitioner for having committed an offence, as it had chosen to proceed only with the departmental enquiry against the petitioner. Thus forfeiture under section 4(6)(b)(ii) may not be available without prosecution. It may be pointed out that there may be different opinions of HC on it.
Forfeiture under section 4(6)(b)(i) is not now permissible, since the employer in the present case has already recovered the losses. There cannot be double jeopady on a same cause of action.
Madras HC , A. Padmanabhan Vs. Joint Commissioner of Labour, , W.A. Nos. 118 and 144 of 2009, decided on Mar-30-2010
“9. In this context, we may also refer that the object of labour laws, a social welfare legislations, is to afford certain basic entitlements and consequent protection. Such laws cast upon the employer certain obligations for meticulous, impeccable and timely compliance. The law entitles an employee to the benefits which he must receive from the employer unless restricted. The Payment of Gratuity Act is a welfare legislation to provide a scheme for payment of gratuity to all types of employees engaged in the establishments employing ten or more employees. In terms of Sub-section (1) of Section 4, gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, on his superannuation, or on his retirement or resignation, or on his death or disablement due to accident or disease. Nevertheless, Sub-section (6) of Section 4 is somewhat an exemption for the restriction imposed for payment of gratuity in respect of an employee on termination. The legislature with a clear intention has laid down the provision of Sub-clause (a) to Sub-section (6) of Section 4 empowering the employer to forfeit the gratuity of an employee to the extent of the damage or loss so caused in the event the service of such employee is terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer. Likewise, as per Clause (b) of the said provision, the gratuity is payable to an employee may be wholly or partially forfeited, (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part and (ii) 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.
10. As far as the second limb of Sub-clause (ii) of Clause (b) to Sub-section (6), viz., the proved misconduct should be in the course of the employment, there is no dispute. As far as the first limb, viz., whether the act constitutes an offence involving moral turpitude, it may be mentioned that for the falsification of accounts and the consequential financial gain, the respondent had not made any prosecution in order to put against the petitioner for having committed an offence, as the respondent had chosen to proceed only with the departmental enquiry against the petitioner. Even otherwise the proved misconduct should be considered on facts to facts basis to find out as to whether such misconduct would be 'moral turpitude'. In the present case, the allegation is only falsification of accounts and thereby making some financial gain. In view of our above discussion and keeping the facts of this case in mind, we are of the opinion that the respondent cannot apply the provision of Section 4(6)(b)(ii) of the Act to deny the gratuity to the petitioner. To this extent, we do not find any justification to interfere with the order in the writ petition.
11. As far as the writ appeal filed by the petitioner himself regarding the denial of interest, we may point out that the discrepancies relating to the receipt of empty cylinders which led to the falsification of accounts came to light during March 1990. Within a period of four months, a charge sheet was issued on 17.7.1990; an enquiry was completed and a second show cause notice was issued on 22.8.1991 and final order of dismissal was passed on 10.9.1991. On the very same day, a show cause notice for forfeiture of gratuity was issued to the petitioner. The petitioner submitted his explanation on 13.9.1991 and on 9.10.1991, an order was passed forfeiting the gratuity.”
Even if the employer now intends to pursue to forfeit the gratuity, partially or fully, then as held by the Kerala HC, once the employee is terminated from service, a right accrues to the employer to either exercise the right of forfeiture either wholly or partially. In the case of persons terminated from service, a right to forfeit gratuity shall be passed within a reasonable time. Therefore you are required to issue of a notice to withhold the gratuity which cannot be dispensed with. You are required to exercise the option for forfeiture of the gratuity within a reasonable time.
As is evident from para 11 of the above A. Padmanabhan case, show cause notice for forfeiture of gratuity was issued on same date when dismissal order was passed.
Kerala High Court
Hdfc Bank Ltd vs The Regional Labour ...
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935
WP(C).No. 16283 of 2011 (I)
“14. In the present case the contention is that the services of the employee were terminated for an act which constitutes an offence involving moral turpitude. A Division Bench of this Court in K.C.Mathew v. Plantation W.P.(C) Nos. 16283 of 2-011-I & 16286 of 2011 - I Corporation of Kerala Ltd. (2000) III LLJ 637) held that the gratuity being a statutory right cannot be forfeited unless the services of the employee has been terminated for the reasons stated under S.4(6) of the Act. It is not in dispute that if no loss has been caused to the employer, there cannot be any forfeiture under S.4(6)(a). Even in respect of forfeiture under S.4(6)(b), there is a discretion with the employer to forfeit the gratuity either wholly or partially. It depends upon the facts and circumstances of each case. Therefore once the employee is terminated from service, a right accrues to the employer to either exercise the right of forfeiture either wholly or partially. It again depends upon whether the employee is involved in commission of an offence involving moral turpitude. Normally an employee is entitled for gratuity on the date of his retirement or superannuation as the case may be or at least within a reasonable period. In the case of persons terminated from service, a right to forfeit gratuity shall be passed within a reasonable time. Therefore issuance of a notice to withhold the gratuity is a requirement which cannot be dispensed with. In Gujarat State Fertilisers and Chemicals Ltd. v. Surendra T Amin (2005) 1 LLJ 400) the Gujarat High Court has held that the contention regarding forfeiture cannot be raised for the first time before the authority on account of the fact that exception is carved out in S.4 to protect the damage caused to the employer. Further this issue is covered by a judgment of the learned Single Judge of this Court in Dhanalaxmi Bank Ltd. case (supra). In the light of the aforesaid view taken by this Court, I am of the view that the respondent authorities were justified in directing payment of gratuity as the petitioner Bank did not exercise the option for forfeiture of the gratuity within a reasonable time.”
Thanks
Sushil
From India, New Delhi
Dear Sekhar ,
you must have genuine inqurry document and Charge sheet of the employees who has been terminated from your end. be ensure that have you follow all the legal step which is manadatory for employer.
Employee can claim all the benefit which u have to pay if u dont have any genuine document to produce at compliant file to legal court.
From India, Mumbai
you must have genuine inqurry document and Charge sheet of the employees who has been terminated from your end. be ensure that have you follow all the legal step which is manadatory for employer.
Employee can claim all the benefit which u have to pay if u dont have any genuine document to produce at compliant file to legal court.
From India, Mumbai
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