Tuesday, January 5, 2010

Payment of Gratuity Act 1972

Withholding Gratuity:-
Payment of Gratuity Act 1972- Gratuity - withholding of gratuity- not permissible under any circumstances - except as enumerated in section 4(6). Section 4(6) and 4(1) - recovery from gratuity amount - Services of petitioner not terminated but as a punishment order passed for recovery of amount and a censure entry was awarded - Therfore, none of conditions falls under Section 4(6) of Act. Amount has been worngly recovered from gratuity payable- Even if the petitioner has given an application permitting to recover from gratuity amount- Recovered amount shall be refunded. Alld. H.C - L.B. dated 07-01-2009 in W.P. no. 3744 of 2007 between Amod Prasad Rai V/s State of U.P. [2009(123)FLR202]
Deduction from Gratuity:-
Deduction from - salary was refixed and to adjust excess payement from gratuity payable - After retirement - Assuming that the pay fixation was incorrect but after ages it could not be corrected behind the back of petitioner - Respondents are directed not to duduct any amount from gratuity and if deducted, it should be refunded. Alld. H.C. dated 17-9-2009 in WP no. 3549 of 2008 between Mahpal Singh Chauhan V/s State of U.P. (Irrigation Dept) [2009(123)FLR765]
More Beneficial Theory/ overriding effect:
Section 2(d), 3 and 4(5)- Controlling Authority - responsible for administration of Act- No jurisdiction conferred upon the Controlling Authority to deal with any issue under section 4(5) as to whether terms of gratuity payable under any award or agreement or contract is more beneficial to employee than that under the Act- Sub section 4 of Section 5 protects right of employee to receive better terms of gratuity under award, agreement or contract with employer than benefits conferred under the Act.
Section 4 and 14- Provisions under -shall have effect notwithstanding anything inconstintant therein, contained in any enactment or any instrument or contract- Right to receive gratuity - cannot be defeated by any instrument or contract.
Section 4(1), 2(e) and 5 - Payment of gratuity - availability of benefits of- Appellant bank an establishment and an employer within the meaning of provisions of the Act- Termination of employment of employee after rendering continuous service for not less than five years or superannutation or resignation or retirement- Gratuity payable is statutory right - cannot be taken away except in accordance with the provisions of the Act.
Section 5 - exemption - cannot be granted by any Government unless established that employees are in receipt of gratuity or pension more favourbale than that conferred under the Act.
S.C. dated 15-12-2009 in Civil Appeal no. 1478 of 2004 beween Allahabad Bank v/s All India Allahabad Bank Retired Employees Association. [2010(124)FLR192].
Corporation made its own scheme for gratuity:
Section 2(f) and 4(5)- Gratuity - Order directing the petitioner to pay the amount of gratuity to concerned workmen - Provisions of Act apply in the cases - as the petitioner - Corporation is "employer" - And corporation cann not say that the Act does not apply - Merely because coporation hasf made their own scheme of Gratuity - Orders passed by the authority are upheld. There is no exemption under the Gratuity Act 1972 in favour of the petitioner - corporation and therefore Payment of Gratuity Act 1972 would be applicable to the petitioner - Corporation also.

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