Gratuity refusal by delhi transco ltd.a delhi govt. enterprise
Ajeet
(Querist) 14 June 2014
This query is : Resolved
Sir,
I was working in Delhi Transco Ltd. from 5th Jan 2004 to 27th July 2012 as Assistant Manager and resigned as Manager. As per Gratuity Act I applied for Gratuity Payment but they refused on the ground that As per CCS Rule I am not eligible for Gratuity. Details is attached for information please. I went to Labour Commissioner Pusa Road ,Delhi as per Gratuity Act But nothing is happening. Need Your advice whether I am eligible for Gratuity Payment as per my attached letter. If Yes, where should I approach now. Thanks in Advance
Devajyoti Barman
(Expert) 14 June 2014
You have to file writ petition in the high court to recover the dues.
Dr J C Vashista
(Expert) 15 June 2014
You are eligible for gratuity which is not governed by the provisions of CCS CCA Rules but Gratuity Act.
Issue legal notice to DTL, followed by application/petition to Central Administrative Tribunal (Principal Bench) Copernicus Marg, New Delhi-110002.
Rajendra K Goyal
(Expert) 15 June 2014
Submit claim form, if no action send legal notice, Consult a service law expert lawyer.
Guest
(Expert) 15 June 2014
well advised by wxperts
Kumar Doab
(Expert) 15 June 2014
While initiating the query the author should provide full details in a concise and precise manner.
Your letter and reply of the employer is not found attached in this thread. Both of these should be carefully looked into…………..before proceeding further.
The admin of LCI has not provided the option of attachment in ‘Experts’ section hence you can not attach. If suitable you may copy and paste in your next post.
>>> It is felt that:
--- M/s Delhi Transco Ltd is the successor entity of erstwhile employer Delhi Vidyut Board., and the successor entity is a private DISCOM………..
---there was a TRIPARTITE AGREEMENT BETWEEN THE GOVERNMENT OF NCT OF DELHI,DELHI VIDYUT BOARD AND JOINT ACTION COMMITTEE OF WORKERS
On: October 28, 2000: The Delhi Electricity Reforms Ordinance was promulgated. The Ordinance
empowered GNCTD (Government of National Capital Territory of Delhi)
• to restructure the power industry;
• gave DERC full powers to regulate the power industry including licensing, restricting the Government’s role to policy matters.
On the same day a Tripartite Agreement was signed between GNCTD, DVB and employee representatives ensuring the following to all the present employees of DVB:
• No retrenchment;
• No change in service conditions;
• Service under DVB and under successor entities to be treated as continuous;
• Creation of a fund to be administered by a Trust to be set up by the Government, with Principal Secretary (Power) as chairman and with other Government representatives plus employees, for retirement benefits of existing pensioners and employees.
• Existing welfare schemes like compassionate appointment and medical reimbursement etc. to continue.
• Ad hoc pay increase of Rs.500/- monthly on transfer to the new corporate entities, adjustable against next pay revision.
This could be the reason that CCS rules are being pointed out.
The question arises:
Which CCS rules e.g…………………….CCS (Pension) Rules…………… and then which section of it?
What is the charge leveled on you?
Has an inquiry been conducted, opportunity of hearing provided to you, and a speaking order has been issued?
For Instance:
“sub Rule 1 of Rule 9………………entitlement to withhold pensionary benefits or other terminal benefits as stated in Rule 9 only arises if "pecuniary loss is caused to the Government", and that too on account of "the pensioner is found guilty of grave misconduct or negligence during the period of service". A reading of this sub-Rule 1 of Rule 9 makes it clear that object of withholding of pensionary benefit is for adjusting the pecuniary loss caused to the employer on account of grave misconduct or negligence of the employee while performing his service.
Therefore, the departmental proceedings or judicial proceedings which are talked of under Rules 9 and 69 are such departmental proceedings or judicial proceedings wherein after adjudication against the employee, if he is found guilty of grave misconduct or negligence which causes pecuniary loss to the employer, only then the employer would be entitled to adjust the same from the pensionary benefits to the employee.”
>>> If CCS rules are not applicable then do you have copy of Gratuity Rules applicable in your case? Which are these rules? Is it stated that the Gratuity Rules……………… say ………………… Delhi Transco Ltd Employee’s Gratuity Rules or Payment of Gratuity Act 1972 whichever is more beneficial shall apply……………………
Once again you need to clarify:
What is the charge leveled on you?
Has an inquiry been conducted, opportunity of hearing provided to you, and a speaking order has been issued?
Ajeet
(Querist) 15 June 2014
Dear Sirs, Thanks for your advice..
The Letter which I submitted in Labour Commissioner office is as follow:
Date: 20 - Nov - 2013
To,
Labour Commissioner,
Office of Controlling Authority,
Payment of Gratuity Act 1972,
Central District,
Employment Office Complex,
PUSA, New Delhi-110012
Respected Sir,
With reference to letter no. F.DTL/101/2013/HR (A)/AM (HR) R/370 dated 26/09/2013 submitted by DTL regarding the reasons for rejecting my gratuity claim, I Ajeet Kumar Choudhary, aged 35 s/o Manoj Kumar Choudhary residing at Bangalore-13 humbly submit the following:
1. I had joined Delhi Transco Ltd (hereinafter referred as DTL) as Assistant Manager on 5th January 2004 and had allotted Staff No. 40136. Later, I had resigned from the services of DTL on 27.07.2012 ie, after serving the organisation for a period of 8 years 7 months. After my resignation, on 28.07.2012, I had made an application in form ‘I’ for payment of gratuity with DTL .DTL did not respond to my letter. Hence, I had vide my letter dated 31.01.2013 , once again requested DTL for payment of gratuity amount. Whereas DTL neither responded to my letters nor paid my eligible gratuity amount till date.
2. Under these circumstances, as per the gratuity act ,this applicant was forced to approach this Hon’ble Forum with a plea to direct DTL to make payment of gratuity amount as eligible to this applicant under Payment of Gratuity Act and has submitted Form ‘N’ on 15th July 2013 before this Hon’ble Forum.
3. This Applicant humbly submits that the reasons mentioned in the letter No. F.DTL/101/2013/HR9A)/AM (HR) R/370 dated 26.09.2013, issued by DTL to your good office, against my above referred application is untenable and absolutely false.
4. In the said letter, DTL has contented that as per the rules, “a government servant quitting service on resignation will not be entitled to any pension, gratuity or terminal benefits. He will however be paid suo-moto cash equivalent to the extent of half of the earned leave at his credit on the date of cessation of service subject to maximum of 150 days including the number of days of EL for which encashment was availed along with LTC.”
5. It is pertinent to mention here that the rules to which DTL is referring is CCS (Pension Rule). As per Sec.2 of this rule, these rules are applicable to Government servants appointed on or before 31.12.2003.
6. In order to have more clarity, this applicant had filed an RTI Application before the Department of Pensions & Pensioners Welfare, Govt. Of India on 01.10.2013, who has informed that The CSS Pension Rules are applicable only for Central Government Employees and these rules are not applicable for State / State undertaking employees. They have also confirmed that these rules are not applicable to Government employees joining on or after 01.01.2004.
7. From the above, it is very clear that, CCS (Pension Rule) is not applicable to this applicant as this applicant had joined DTL on 05.01.2004. Whereas, CSS (Pension rules) applied only to employees who joined the employment on or before 31.12.2003. Further, this applicant was also covered under the scheme of Employee Provident Fund and was having EPF (Employees Provident Fund subscription)
8. In The said letter DTL also contended that Managerial or Administrative capacity are not included in Industrial Dispute Act 1947 Sec2 Sub Sec 3(s).
9. It is pertinent to mention here that this applicant has appealed as per the Payment of Gratuity Act 1972 and as per the 1984 amendment in gratuity act , person employed in managerial or administrative capacity were made eligible for gratuity .Also the payment of gratuity due under the gratuity act must be taken under that act and not under any other act.So the Industrial Dispute Act 1947 Sec2 Sub Sec 3(s)is not applicable in this case.
10. Further, this applicant humbly submits that Payment of Gratuity Act, 1972 is applicable to DTL, which has been confirmed by DTL vide their letter ref No. F.DTL / 1011 / MGR (HR) /PIO (HR)-RTI / 2013 / ID-1598 / APIO-PR-71 dated 05.06.2013 . This applicant has resigned from the services of DTL, after serving the Company for a period of 8 years 7 months. Hence this applicant is eligible for receiving gratuity amount under Section 4 (1) of the Payment of Gratuity Act, 1972.
11. Whereas, DTL has misconceived the above facts and has rejected the application on flimsy grounds, with an intention to cause mental agony to this applicant and to delay the payment of gratuity amount as eligible to this applicant.
12. In view of the above facts, this applicant clearly bring to the notice of your good office that this applicant is eligible for gratuity amount under the Payment of Gratuity Act, 1972
13. Further, this applicant submit that as this applicant is working in Bangalore, this applicant has to travel to Delhi, each time for attending the sittings, which was very expensive and time consuming. This applicant has spent Rs.10087 for the first hearing on 27th September 2013 held at Delhi. An amount of Rs 9770 for spent for the second hearing held on 27th September 2013 and Rs 4905 was spent on the third hearing held on 6th November 2013 and Rs. 9662 is going to spend on the fourth hearing on 10th Dec 2013 (Total Rs.-34424/-). Moreover this applicant had to take leave from the present employer on all these days, which has caused lot of stress to this applicant.
14. In view of the above, this applicant prays before this Hon’ble Forum to issue directions in favour of this applicant as under:
a) To issue directions to M/s Delhi Transco Ltd to make payment of the eligible amount of gratuity, which is wrongfully withheld by DTL.
b) To pay interest @ 12% per annum of the total amount payable for delay in payment.
c) To pay cost of an amount of Rs. 50,000/- towards the expenditure incurred by the applicant.
Ajeet Choudhary
May Kindly advice as above.. Thanks in Advance
Kumar Doab
(Expert) 16 June 2014
Although you have not posted the two replies by letter/RTI of employer, apparently you have countered it, on your own or thru reply drafted by your lawyer.
You have posted that:
---10. “ that Payment of Gratuity Act, 1972 is applicable to DTL, which has been confirmed by DTL vide their letter ref No. F.DTL / 1011 / MGR (HR) /PIO (HR)-RTI / 2013 / ID-1598 / APIO-PR-71 dated 05.06.2013 . “
Apparently this is a reply thru RTI.
Hope the Act applies w.e.f. your DOJ to your DOL and this point is also covered in your RTI application and RTI reply by the company.
The company can’t retract from this reply thru RTI.
However as mentioned at 3,4,5 by another letter dated 26.09.2013 (i.e. after 3 months of issuing a reply by RTI) as mentioned above how can company claim CCS(pension) rules shall apply?
---13. YOU can authorize anyone to appear on your behalf if you feel that the person can represent and defend your cause as effectively as or even better than you…………………..
Hope you have lodged your complaint with appropriate Govt. (central/State) as applicable in your case.
If the employer and its attorney are avoiding payment then they are liable to be punished with penalty, punishment imprisonment as per Sec:9 of the Act…………….
Let the Controlling authority give its decision.
T. Kalaiselvan, Advocate
(Expert) 16 June 2014
From your contents posted again, it is found that your approach to the labor commissioner under the gratuity act is proper and you would find the remedy at the earliest, please retain your advocate through out for the purpose and follow it up closely.
