This has reference to my very old thread regarding non-payment of gratuity by the employer.
I worked with a Degree Engineering College from 09/09/2002 to 11/03/2014.
From 12/03/2014 onwards I was on sick leave (Leave Without Pay) due to accidental orthopaedic surgery. On 20/08/2014, when I approached for joining with Fitness Certificate, I was not allowed to join the duty and my service was verbally terminated without giving any reason in writing.
After struggling for four years, now The Controlling Authority has issued The Order for Direction of Payment of Gratuity to the College Management.
The dispute with this Order is the rate of D.A. considered by the Controlling Authority. The rate of D.A. was increased from 90% to 100% by the Central Government from 01/01/2014, followed by the State Government. The College implemented the D.A. hike with effect from 01/01/2014, as per the Gazette, and paid the difference of D.A. Arrears from January to August 2014 to all the employees except me when I was on sick leave.
I demanded several times to pay me the D.A. Arrears but the College did not pay. I also wrote to the University as well as Education Department and other concerned authorities about my grievance but in vein.
I had cited the following judgements with reference to the Gratuity Act Section No. 4 (2) (Payment of Gratuity) with the definition of wages as per Section 2 (s), (Definitions) where it is clearly explained and defined that the wages last drawn means the last wages paid or are payable.
Payment of Gratuity Act, 1972Section: 2 Definitions:
(s) "wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowances.
Judgements cited to support my demand:
- Allahabad High Court
Rajendra Deva vs Addl. Labour Commissioner ... on 3 February, 1999
Equivalent citations: 1999 (2) AWC 1083, 1999 (81) FLR 914, (1999) IILLJ 211 All
- Bombay High Court
The Transport Manager, Kolhapur ... vs Pravin Bhabhutlal Shah, ... on 2 July, 2004
Equivalent citations: 2004 (5) BomCR 10, (2005) IILLJ 104 Bom, 2005 (1) MhLj 497, 2005 (1) SLJ 485 Bombay
As I was on duty from 01/01/2014, my payable salary as on 11/03/2014 was as per 100% rate of D.A. payable to me alongwith all other employees.
Though I have cited the aforesaid judgements and the Act, the Controlling Authority has considered 90% D.A. as per last salary drawn in March 2014 instead of payable D.A. Rate of 100% as per the Gazette.
The Controlling Authority has issued the order with a “favour” to me that if, in future, I am paid the D.A. Arrears as per 100% Rate by approaching the appropriate authority, then I will be eligible to apply for the difference of Gratuity considering 100% D.A. and has “assured” that the Order for the same will be issued for the difference with interest.
Now I have two options:
Either I Appeal to the Appellate Authority to revise the Order as per 100% D.A. and wait for another six months or a year for the justice
Or
I accept the Payment as per 90% D.A., fight for the D.A arrears for 10% D.A. and then again fight for the Difference of Gratuity as per 100% D.A.
The difference of Gratuity amount as per 90% D.A. with simple interest@ 10% and the Gratuity amount as per 100% D.A. with same interest rate for about four years is:
As per 100% D.A., the Gratuity amount is Rs. 9,36,470 + approx 4 years simple interest Rs. 3,74,588 (at 10% per annum) = Rs. 13,11,058, say Rs. 13,11,000.
As per 90% D.A., the Gratuity amount is Rs. 8,89,650 + interest Rs. 3,55,860 = Rs. 1245510, say Rs. 12,45,500.
The difference is Rs. 65,500.
This difference will increase with the delay in payment (because of increase in interest amount).
Kindly advice me with the pros and cons of accepting the “partial” Gratuity payment at 90% D.A. and fight for the Gratuity payment as per 100% D.A. Rate.
Is it advisable to approach Appellate Authority? If he also may considers D.A. Rate as per 90%, then what could be the next course of action?
