Dear All;
It is intriguing that the employee is not coming forward to collect gratuity amount. But is the employee treaceable? If yes then send a registered letter in the form of a notice given in the Gratuity Act. If he does not come, employer cannot help. If the employee is not traceable then legally all have to wait for 8 years. If even after 8 years employee is not found, then the amount of gratuity is to be paid to the nominee whom the employee had nominated in Form F. If there is no nomination, then employer has to wait as to who claims gratuity amount and when anyone approaches for the gratuity amount, tell that person to go to court and obtain a letter of probate. Employer need not decide as to who are the legal heirs. Let the Court decide it.
Vibhakar Ramtirthkar.
From India, Pune
79It is intriguing that the employee is not coming forward to collect gratuity amount. But is the employee treaceable? If yes then send a registered letter in the form of a notice given in the Gratuity Act. If he does not come, employer cannot help. If the employee is not traceable then legally all have to wait for 8 years. If even after 8 years employee is not found, then the amount of gratuity is to be paid to the nominee whom the employee had nominated in Form F. If there is no nomination, then employer has to wait as to who claims gratuity amount and when anyone approaches for the gratuity amount, tell that person to go to court and obtain a letter of probate. Employer need not decide as to who are the legal heirs. Let the Court decide it.
Vibhakar Ramtirthkar.
From India, Pune
Dear all, The problem can be resolved by writing to the employee concerned with copy to the Controlling authority under the Payment of Gratuity Act clearly indicating your intention to pay the gratuity amount but the employee appears to be uninterested. (Pl see Section 7(2). Further Sub-section 3 clearly states that where the delay is on the part of the defaulting employee then no liability is attached to the employer. Another option is to deposit the amount with the Labour Welfare Fund authorities. Pl check the state law applicable, as any unpaid amount to an employee could be paid to the Labour Welfare Fund authorities after the prescribed waiting period is over and the employer will be free of any liability thereafter.
From India, Bhopal
From India, Bhopal
Dear Sonam,
I concur with Mr.Kalsi. However, since in view of rejection of the resignation and subsequent penal termination of the services of the employee on a/c of unauthorised absence by inference, you should have arranged payment of his gratuity as calculated by u before expiry of 30 days from the date of dismissal.As suggested by Mr.Kalsi immediately obtain the permission of the C.A as per the proviso to S.7(3A).In addition, deposit the amount of gratuity as per ur calculation with the C.A forthwith as per S.7(4)(a) in order to avoid interest n other penal actions.
From India, Salem
I concur with Mr.Kalsi. However, since in view of rejection of the resignation and subsequent penal termination of the services of the employee on a/c of unauthorised absence by inference, you should have arranged payment of his gratuity as calculated by u before expiry of 30 days from the date of dismissal.As suggested by Mr.Kalsi immediately obtain the permission of the C.A as per the proviso to S.7(3A).In addition, deposit the amount of gratuity as per ur calculation with the C.A forthwith as per S.7(4)(a) in order to avoid interest n other penal actions.
From India, Salem
pkc3000
I have gone through the comments of all the members. It is the statutory obligation of employer to pay gratuity in time to the employee. If the employee concerned did not apply or he is not traceable employer must prepare his/her gratuity in the prescribed form and deposit the same to the Controlling Authority failing which it will attract imposition of fine & penalty.
From India, Koraput
I have gone through the comments of all the members. It is the statutory obligation of employer to pay gratuity in time to the employee. If the employee concerned did not apply or he is not traceable employer must prepare his/her gratuity in the prescribed form and deposit the same to the Controlling Authority failing which it will attract imposition of fine & penalty.
From India, Koraput
Make a note of it in the unpaid wages register
Send him a notice by registered post asking him to come for his full and final settlement
If he does not come, then after 3 years
You have to deposit the money in the labour welfare fund of your state.
You may deduct from the gratuity amount any dues the employee has towards the company, including value of short notice period.
From India, Mumbai
Send him a notice by registered post asking him to come for his full and final settlement
If he does not come, then after 3 years
You have to deposit the money in the labour welfare fund of your state.
You may deduct from the gratuity amount any dues the employee has towards the company, including value of short notice period.
From India, Mumbai
Dear All,
1.) Under Payment of Gratuity Act, Employer can not keep/hold the payable gratuity under any circumtances.
2.) If there is any dispute the Employer must deposit the payable gratuity with the Controlling Authority.
3.) The present case is also a dispute under Payment of Gratuity Act
4.) The Employer can not deposit the payable gratuity in the Labor Welfare Fund without exploring the option available under Paymant of Gratuity Act which includes involving the Controlling Authority in the whole process of gratuity payment to anyone.
5.) If the Controlling Authority returns the deposited payable gratuity to the Employer then only the option of depositing the gratuity in the LWF arises else not.
5.) No amount can be deducted from the calculated gratuity in the present case as the Payment of Gratuity Act clearly provides that the gratuity payable to an employee may be wholly or partially forfeited only under following conditions - 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.
Gratuity is a protected benefit and can not be attached even in the execution of any decree or order of the civil or criminal court.
regards,
Kamal
From India, Pune
1.) Under Payment of Gratuity Act, Employer can not keep/hold the payable gratuity under any circumtances.
2.) If there is any dispute the Employer must deposit the payable gratuity with the Controlling Authority.
3.) The present case is also a dispute under Payment of Gratuity Act
4.) The Employer can not deposit the payable gratuity in the Labor Welfare Fund without exploring the option available under Paymant of Gratuity Act which includes involving the Controlling Authority in the whole process of gratuity payment to anyone.
5.) If the Controlling Authority returns the deposited payable gratuity to the Employer then only the option of depositing the gratuity in the LWF arises else not.
5.) No amount can be deducted from the calculated gratuity in the present case as the Payment of Gratuity Act clearly provides that the gratuity payable to an employee may be wholly or partially forfeited only under following conditions - 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.
Gratuity is a protected benefit and can not be attached even in the execution of any decree or order of the civil or criminal court.
regards,
Kamal
From India, Pune
Gratuity is not a protected benefit like PF
The concept of partial forfeiture is where the company is allowed to refuse to pay gratuity.
That is where the employee has done something seriously wrong, amounting to things like fraud.
But once the amount is payable, the company can deduct amounts owed by the employee to the company.
In case of PF, it is different. The entire amount has to come to the employee directly in his hand, you can not recover anything from that amount.
About depositing with controlling authority, you may be right. I had not considered that option. However,,there is no dispute here. The employe has not filed the application for gratuity and has not come for his full and final settlement. The employer is not disputing the amount payable.
From India, Mumbai
The concept of partial forfeiture is where the company is allowed to refuse to pay gratuity.
That is where the employee has done something seriously wrong, amounting to things like fraud.
But once the amount is payable, the company can deduct amounts owed by the employee to the company.
In case of PF, it is different. The entire amount has to come to the employee directly in his hand, you can not recover anything from that amount.
About depositing with controlling authority, you may be right. I had not considered that option. However,,there is no dispute here. The employe has not filed the application for gratuity and has not come for his full and final settlement. The employer is not disputing the amount payable.
From India, Mumbai
Dear Saswatabanerjee,
Deductions from the gratuity amount as per calculation formula given in the Payment of Gratuity Act is only possible under the strict conditions given in the Act.
Employer can not deducton any amount from the calculated gratuity under any condition other than as mentioned in the said Act.
Protected benefit does not mean that the amount payable should be with the third party and not with the employer.(as you have given example of PF benefits)
Gratuity is a protected benefit because it has been given protection under sec 13 of the Act which says "Gratuity of an employee can not be attached for under any decree by court or any kind of payment" and the same has been upheald by several High courts and Hon. Supreme Court on India.
There are several cases and judgement in which the court gave a very clear view that "Withhold or Adjustment of Gratuity is not permissiable under any circumstance other then those mentioned in section 4(6) of the Act otherwise, the amount towards gratuity shall stand protected under Sec.13 of the Act" and this the legal position of the matter as on now.
I would request you to go through the cases Yada Lakmi Vs A.P State Co. bank LLR 2008 (108) , K.C Methew V/s Plantation Corporation Kerla LLR 2001(123) ker , Panchmahal District Co-Operative Bank limited – Petitioner Vs Harjivandas Purshottamdas Prajapati – Respondent, Gujrat High court.
In Ram Ranjan Mukhjeri V/s Minining and Allied Machinery Corporation Ltd 2001 LLR 297(Cal HC).the court held that "even if a workmen give undertaking for making deductions, the gratuity of an employee can not be withheld".
Your contention that "there is no dispute here. The employe has not filed the application for gratuity and has not come for his full and final settlement. The employer is not disputing the amount payable." I would say there is a DISPUTE from the legal point of view as intervention of the Controlling Authority is required to settle the issue.
Lets not mis-interpretate and twist the provisions of law. Interpretation are done by the competent court of law not by us.
regards,
Kamal
From India, Pune
Deductions from the gratuity amount as per calculation formula given in the Payment of Gratuity Act is only possible under the strict conditions given in the Act.
Employer can not deducton any amount from the calculated gratuity under any condition other than as mentioned in the said Act.
Protected benefit does not mean that the amount payable should be with the third party and not with the employer.(as you have given example of PF benefits)
Gratuity is a protected benefit because it has been given protection under sec 13 of the Act which says "Gratuity of an employee can not be attached for under any decree by court or any kind of payment" and the same has been upheald by several High courts and Hon. Supreme Court on India.
There are several cases and judgement in which the court gave a very clear view that "Withhold or Adjustment of Gratuity is not permissiable under any circumstance other then those mentioned in section 4(6) of the Act otherwise, the amount towards gratuity shall stand protected under Sec.13 of the Act" and this the legal position of the matter as on now.
I would request you to go through the cases Yada Lakmi Vs A.P State Co. bank LLR 2008 (108) , K.C Methew V/s Plantation Corporation Kerla LLR 2001(123) ker , Panchmahal District Co-Operative Bank limited – Petitioner Vs Harjivandas Purshottamdas Prajapati – Respondent, Gujrat High court.
In Ram Ranjan Mukhjeri V/s Minining and Allied Machinery Corporation Ltd 2001 LLR 297(Cal HC).the court held that "even if a workmen give undertaking for making deductions, the gratuity of an employee can not be withheld".
Your contention that "there is no dispute here. The employe has not filed the application for gratuity and has not come for his full and final settlement. The employer is not disputing the amount payable." I would say there is a DISPUTE from the legal point of view as intervention of the Controlling Authority is required to settle the issue.
Lets not mis-interpretate and twist the provisions of law. Interpretation are done by the competent court of law not by us.
regards,
Kamal
From India, Pune
I stand corrected on the concept of protected payment.
I have not checked the relevant court decisions but I assume you must be well acquire red with that.
On the last part,
The act requires the employee apply for gratuity, for which there is a relevant form (Form I). The employee has not filed the form.,the employer is not disputing the amount or that it is payable. The provision of the act as far as I recall says once you get form I, you have to send notice of payment showing how much is payable and the computation and the date by which it will be paid (within 30 days). So, if the employee has not applied and has not come to do his full and final settlement, does the employer still need to deposit this with the authority ?
From India, Mumbai
I have not checked the relevant court decisions but I assume you must be well acquire red with that.
On the last part,
The act requires the employee apply for gratuity, for which there is a relevant form (Form I). The employee has not filed the form.,the employer is not disputing the amount or that it is payable. The provision of the act as far as I recall says once you get form I, you have to send notice of payment showing how much is payable and the computation and the date by which it will be paid (within 30 days). So, if the employee has not applied and has not come to do his full and final settlement, does the employer still need to deposit this with the authority ?
From India, Mumbai
It is obligatory on the part of the Employer to pay gratuity within 30 days of leaving of the employee. Not receiving Form I can not be an excuse for delay in the grauity payment. If the employee is not traceable the Employer should deposit the amount (calculated as per formula given the Payment of Gratuity Act) with the Controlling Authority failing which the Employer has to pay interest.
Delay in payment of Gratuity paymnet under any circumtances except as directed by the Controlling Authority amounts to the contravening the provisions of the Act.
regards,
Kamal
From India, Pune
Delay in payment of Gratuity paymnet under any circumtances except as directed by the Controlling Authority amounts to the contravening the provisions of the Act.
regards,
Kamal
From India, Pune
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