• Withholding of gratuity due pending criminal appeal

Sir,
I had been Convicted and sentenced one year RI in Atrocity case, by hon'ble Sessions Court. On the basis, I was kept under suspension by my dept., On my appeal, the Hon'ble High Court admitted my appeal by ordering the said both Conviction and Centenced of Lower Court is hereby suspended and appeal admitted.
Based on the judgement, My suspension has been revoked and I have been taken back in to service and retired on superannuation after completion 60 years. Now, my dept (i.e. BSNL a Govt.PSU) is not releasing my gratuity. I have represented and requested for the release of my gratuity but no response from the office. Please guide ne
Asked 3 years ago in Criminal Law
Religion: Hindu

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15 Answers

Hello,

File a writ of mandamus in the HC, they can not with hold your gratuity after your retirement and any culpable delay in release of the same shall entitle you to get interest on the said amount.

File the writ at the earliest, get in touch with some lawyer.

Regards

Anilesh Tewari
Advocate, New Delhi
17870 Answers
344 Consultations

5.0 on 5.0

Please see section 4(6)(b)(ii) of the Payment of Gratuity Act. According to this section gratuity could be forfeited if the employee was terminated for any act which constitutes an offence involving moral turpitude. In the case cited by you, the employee has not been terminated, but had resigned. I hope the resignation had been accepted. As the termination of the services of the employee is due to resignation and not due to any act involving moral turpitude, gratuity cannot be forfeited under the Payment of Gratuity Act in this case. Moreover, after the termination of the services due to an act which constitutes an offence involving moral turpitude, the employer has to issue a separate show cause notice asking the employee to show cause as to why the gratuity payable to him should not be forfeited. The employer has to consider the explanation offered by the terminated employee and then pass an order forfeiting gratuity.

Mohammed Mujeeb
Advocate, Hyderabad
19012 Answers
31 Consultations

4.5 on 5.0

What is the status of the criminal appeal you filed in the High Court and the Departmental action that was initiated against you BSNL subsequent to your conviction?

To me, it looks like you can approach the High Court in the instant matter and file a writ of mandamus.

Vibhanshu Srivastava
Advocate, New Delhi
9350 Answers
219 Consultations

5.0 on 5.0

File a complaint before the Controlling Authority under the Payment of Gratuity Act within the area where this employer’s establishment is situated or at the place where you were working at the time of retirement

Ajay Sethi
Advocate, Mumbai
84936 Answers
5617 Consultations

5.0 on 5.0

Yes I noted the same and advise as rendered above holds good.

Go ahead and file a writ in the HC.

Regards

Anilesh Tewari
Advocate, New Delhi
17870 Answers
344 Consultations

5.0 on 5.0

The pending departmental proceedings against you would abate with your retirement, unless it has been specifically provided in your service rules to the contrary.

Hence, once the departmental proceedings abate, there is no reason why BSNL should withhold your retiral dues.

This is settled in law that retiral dues are not bounty and hence, they cannot sit over your unpaid dues.

Vibhanshu Srivastava
Advocate, New Delhi
9350 Answers
219 Consultations

5.0 on 5.0

Dear Clinet,

Gratuity is a right accrued to an employee and the employer is obliged to make payment of gratuity within 30 days from the date it becomes due to the employee. If the employer fails to pay gratuity with statutory limit of 30 days, then he will have to pay along with interest. Approach High Court or administrative tribunal.

Yogendra Singh Rajawat
Advocate, Jaipur
21452 Answers
31 Consultations

4.4 on 5.0

Sir you have to file an application for release of gratuity before the Controlling authority for release of the gratuity in case the application is rejected you need to file an appeal on same before the high court or a writ challenging the order of the controlling authority,

Shubham Jhajharia
Advocate, Ahmedabad
25518 Answers
149 Consultations

5.0 on 5.0

The gratuity under the Act cannot be fore fitted if not removed from the services as stated under section 4 so you can file for claiming your gratuity amount.

Shubham Jhajharia
Advocate, Ahmedabad
25518 Answers
149 Consultations

5.0 on 5.0

You have all the rights to receive your terminal benefits and your department cannot hold your gratuity and any other terminal benefit in case there is a delay and no response in this regard you can file a mandamus writ petition in the High Court to get direction for your department on this issue

Vimlesh Prasad Mishra
Advocate, Lucknow
6829 Answers
23 Consultations

4.9 on 5.0

You should approach CAT tribunal for recovery of gratuity. CAT will pass order in that regard.

Abhilasha Wanmali
Advocate, Nagpur
970 Answers
1 Consultation

4.8 on 5.0

send them a legal notice through advocate. file a case in labour court for the same.

Prashant Nayak
Advocate, Mumbai
24936 Answers
58 Consultations

4.4 on 5.0

Your case shall be covered by the payment of gratuity act and rules.

The employer shall arrange to pay the amount of gratuity within 30 days from the date it becomes active i.e. from the day the person retires or his employment is terminated, to the person to whom the gratuity is awarded. Where the employer fails to make payment of any gratuity payable to the employee, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years. Any employer who contravenes or makes default in complying with any of the provisions of the Act or any rule or order made there under shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

Sir I hv'nt terminated from the department but retired on Superannuation after completion of 60 year of service which may please be noted.

You are eligible and entitled for gratuity payment.

The management cannot deny the payment of gratuity amount.

The employee has a right to file a complaint to the Controlling Authority under the Payment of Gratuity Act within the area where the employer’s establishment is situated or where the employee was working at the time of termination. Moreover, the aggrieved person can also approach Labour Courts to get relief and justice.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

you can approach the Authority under gratuity with an application and you will get the justice. the department cannot stop the gratuity. all the best.

Ramachandar Desu
Advocate, Bangalore
23 Answers

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