Dismissal - consequences ?
prashant1314
(Querist) 05 September 2011
This query is : Resolved
Dear Experts,
If the employee found guilty in disciplinary proceedings & disciplinary authority awared the Punishment of Dismissal in the said case can the punished employee can claim
1) Gratuity
2) Bonus
4) Salary / Wage
5)Experience Letter
Raj Kumar Makkad
(Expert) 05 September 2011
1. Refer to letter of dismissal. Generally there is no scope for this payment in such cases.
2. No.
3 (mentioned as 4). Yes, if has any arrears (subsistence allowance only).
4 (mentioned as 5). Yes.
Isaac Gabriel
(Expert) 05 September 2011
Gratuity could be claimed if (1)the dismassal is not for riotuos activity,(2)no damage to assets of the management,(3)the normal functioning of the institution was not affected because of the behavior of the workman. Vide Section 4(6)(i)(a) and (b)
A. A. JOSE
(Expert) 05 September 2011
Both the experts have well dealt with the issues and I too endorse the same.
Guest
(Expert) 05 September 2011
Dear Isaac,
I may have to differ with your views, as Section 4(6)(i)(a) and (b) apply to cases of termination only. There is a vast difference between dismissal and termination. In dismissal employee loses all the terminal benefits.
Guest
(Expert) 05 September 2011
Dear Prashant,
I agree with the views of Shri Raj Kumar Makkad. Only past arrears, if due on account of duty pay or suspension period are permissible.
About experience certificate, although the employee can get, but the employer would definitely mention in the experience certificate about the event of his dismissal, which would not be in the interest of the employee.
Isaac Gabriel
(Expert) 05 September 2011
Dear Dingraji,Thank you for your clarification. In Gratuity act, 'termination of service' alone has been pointed out,and the circumstances for eligibility of gratuity is illustrated. Dismissal also amount to termination of service and the act weighs the circumstances under which such dismissal/
termination for the purpose of payment of gratuity. I request experts to throw more light on this issue.I hope expert Prbahar Singh could eloborate on this and clear.
Raj Kumar Makkad
(Expert) 05 September 2011
There is lot of difference in dismissal and termination. You cannot equate both as similar and synonymous words. Had they been one then there was no need of use of these two separate words. A dismissed employee has got no right to claim his any service related benefit rather a terminated employee can claim for that. Termination may be in he circumstances where an employee was engaged for a particular period and that period got ended so his employment was treated as terminated whereas dismissal is definitely a result of disciplinary proceeding.
K.S.Srinivas
(Expert) 05 September 2011
I agree with the expert Raj Kumar Makkad.
V.Harikrishnan
(Expert) 06 September 2011
Dear All
The payment of gratuity to a dismissed or terminated employee is governed by the provisions of section 4(6) of the Payment of Gratuity Act. Though the word "terminated" is used in the section the effect of "dismissal" is the same as "termination" as far as the PG Act is concerned. The termination of the services of the employee should be for the reasons specified in Section 4(6). If the termination is for any reason other than those specified in section 4(6) then gratuity cannot be forfeited. Even though the employee is terminated for the reasons specified in section 4(6) and to the extent specified in it, the employer before forfeiting the gratuity has to issue a show cause notice to the concerned employee asking him to show cause as to why the gratuity should not be forfeited and also specifying the quantum of gratuity that would be forfeited and after receiving the explanation to the show cause notice,consider the explanation given and pass a speaking order forfeiting the gratuity.
With regards
V.HARIKRISHNAN
Joint Commissioner of Labour(Retired)
Government of Tamilnadu
Advocate and Labour Law Consultant
prashant1314
(Querist) 06 September 2011
Dear Expers,
Thanks a lot for your timely help.
Isaac Gabriel
(Expert) 06 September 2011
Expert Hari has put at rest the doubt prevailed in this thread.Being the former competent authority for the gratuity cases the correct finding of the law has been enlightened to all.Thanks a lot sir..
