Withhelding of arrear of salary

nand kishore singh (Querist) 09 May 2014 This query is : Resolved
whether arrears of salary can be withheld of a govt. servant who has retired and facing a charge/sheet(RDA pending). As per rule we can withheld gratuity, leave encashment but there is no rule stating that his arrears of pay can be withheld. He has been paid all the pensionary benefits.

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Devajyoti Barman (Expert) 09 May 2014
Refer to DP Rules. The employer can withheld gratuity only on proven facts of causing loss to the employer and only to that extent only. Not the whole amount of gratuity can be withheld.

Kumar Doab (Expert) 09 May 2014
Agreed with Mr. Barman.

It seems that the withhold is being applied by an executive decision.

In the absence of statue and law not supporting the decision it may fall flat.

A similar query is discussed at:

http://www.lawyersclubindia.com/forum/P-f-gratuity-90740.asp#.UqC5qdIW1MA

Discussion > Labour & Service Law > Gratuity > P.f & gratuity

It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law"…………………………………….the appellant cannot withhold - even a part of pension or gratuity.

Speaking order with reasons stated in sec 4(6) to forfeit the gratuity to the extent of the damage is must following due process of natural justice.

These are hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law…………

Guest (Expert) 09 May 2014
You cannot withhold arrears of pay of the employee.

Rajendra K Goyal (Expert) 09 May 2014
Whether any loss quantified against the employee in the proceedings.

Go through the service conditions and disciplinary proceedings rules of the department.

Agree with the advise of experts on gratuity etc.

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