P.f & gratuity

I Agreed with Mr. Sudhir Kumar opinion.

Sudhir ji, 

 1.this matter is related to a nationalized bank.

2.P.F matter related to employees contribution,employer's contribution or both!

3. what about gratuity?

award of gratuity amount is for the gratuitous services, it can be denied to the dismissed employee but the deducted PF amount cannot forfeited until dismissal from service due to embezzlement .

>> It is felt that Nationalized Banks(Banks having branches in more than one State) had their own scheme for payment of EPF as per the Sastry Award and have their own Employees' Provident Fund Rules as well as Bank Employees' Pension Schemes in the place in accordance with various awards or settlements.

Employees' Provident Funds and Miscellaneous Provisions Act is not applicable.

Bharat Overseas Bank Limited vs The Government Of India, Rep on 24 March, 2008

https://indiankanoon.org/doc/186974830/?type=print

The nationalized bank might be having its own trust to manage PF and Gratuity.

The PF and Gratuity Rules of the Bank may be downloaded.

The Bank might have believed that “Provident Fund contribution of employer is not right of employee if he is terminated for wrongful reasons. Employee has no lien in employer’s contribution if he is terminated for disciplinary and wrong reasons. “

However Bank shall have to produce the corresponding rules in this regard.

Your bank rules may have clauses like as in case of Bank of Baroda:

“No deduction shall be made, save as by these rules provided, from the amount

standing to the credit of an account in the name of a member unless he is

dismissed for misconduct causing financial loss to the Bank and in such case the

recovery to be made by the Trustees and to be paid by them to the Bank shall not

exceed the amount of such financial loss and shall be made from the contributions

made by the Bank credited to individual account of such member and to interest

(simple or compound) credited in respect of such contributions and accumulations

thereof in accordance with these Rules.”

>> Payment of Gratuity Act, 1972

Section:4:Payment of Gratuity: (6) Notwithstanding anything contained in sub-section (1), -

(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused……………………………….

--You may refer to the Gratuity rules of your Bank.

--Gratuity Rules: Bank of Baroda

III.  The expression “Salary” or “Wages” or “Pay” shall mean.

iii)  Notwithstanding anything  contained in Rule 12(1) (A) or  12(1) (B)  here in
above

•  Thegratuity payable to an employee shall be wholly forfeited:
•  If the services  of  such employee have been terminated for his  riotous  or disorderly
conduct or any other act of violence on his part, or
•  If the services of such employee  have been terminated for any act which constitutes
an offence involving moral turpitude provided that  such offence is committed by him
in the course of his employment.

--However the 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.

>> In the following recent judgment the Apex Court has made interesting observations and has decided in favor of employee……………

Supreme Court of India

State Of Jharkhand & Ors. vs Jitendra Kumar Srivastava & Anr. on 14 August, 2013

https://indiankanoon.org/doc/186974830/?type=print

2. Crisp and short question which arises for consideration in these cases is as to whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings? The High Court has - answered this question, vide the impugned judgment, in the negative and hence directed the appellant to release the withheld dues to the respondent.

3…………………………. Remaining 10 percent pension and salary of his suspension period (30.1.2002 to 30.8.2002) was withheld pending outcome of the criminal cases/ departmental inquiry against him. He was also not paid leave encashment and gratuity.

5. Mr. Amarendra Sharan, the learned Senior Counsel appearing for the petitioner accepted the fact that in so far as the Pension Rules are concerned, there is no provision for withholding a part of pension or gratuity. He, however, submitted that there are administrative instructions which permit withholding of a part of pension and gratuity. His submission was that when the rules are silent on a particular aspect, gap can be filled by the - administrative instructions which was well settled legal position, laid down way back in the year 1968 by the Constitution Bench Judgment of this Court in Sant Ram Sharma vs. Union of India 1968 (1) SCR 111. He, thus, argued that the High Court has committed an error in holding that there was no power with the Government to withhold the part of pension or gratuity, pending disciplinary/criminal proceedings.

6. ……………………………….. However, these administrative instructions can supplement the statutory rules by taking care of those situations where the statutory rules are silent.

7. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service…………………………..

"The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised?................................................

It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules.

8. It is thus 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…………………………..

12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court………………………..

15. 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. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation…………………..

16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish.

Valuable advice of learned experts/members is sought.

Thanks Kumar Doab ji for your detailed and effective response.

DEAR MR. GOUTAM ROY

                                           AS YOU HAVE STATED THAT YOU ARE A OFFICER IN A NATIONALIZED BANK , AS STATED BY MR. SUDHIR PF CANNOT BE DENIED TO YOU IN CASE OF DISMISSAL FROM SERVICE . BUT IF THE DISMISSAL FROM SERVICE IS ON ACCOUNT OF " MISAPPROPRIATION OF BANK'S MONEY " IN THAT CASE THE TRUSTEES OF THE PF WHICH INCLUDES EXECUTIVES FROM THE SAME BANK AND THE UNION  HAVE EVERY RIGHT TO HOLD YOUR PF UNTIL YOU MAKE GOOD THE LOSS TO THE BANK BECAUSE OF THE DEFICIENCY IN SERVICE RENDERED BY YOU . IF YOU MAKE GOOD THE LOSS , THE BANK WILL RELEASE YOUR PF . REGARDING THE GRATUITY MATTER , YOU HAVE NO RIGHT TO CLAIM IT " AS A MATTER OF RIGHT CONFERRED ON YOU ". IT IS GIVEN BY THE EMPLOYER FOR THE GOOD SERVICES RENDERED BY YOU TO THE INSTITUTION. WHY YOU DID NOT OPT FOR THE PENSION BENEFIT WHEN IT WAS OFFERED TO YOU IN THE YEAR 1993 IN LIEU OF THE PF CONTRIBUTION MADE BY THE EMPLOYER WHICH WAS EQUAL TO THAT OF YOUR PF CONTRIBUTION .EVEN THIS PENSION BENEFIT WAS OFFERED TO THE EMPLOYEES THREE YEARS BACK , BUT THAT TIME YOU HAVE TO REFUND ONE AND HALF TIMES OF THE PF CONTRIBUTION MADE BY THE EMPLOYER . NOW YOU HAVE LOST EVERYTHING . BUT IN CENTRAL GOVERNMENT SERVICE , THEY HAVE PROVIDED ONE MORE PUNISHMENT INSTEAD OF " DISMISSAL FROM SERVICE ". THAT IS " REMOVAL FROM SERVICE " IN WHICH CASE YOU ARE ENTITLED FOR ALL THE BENEFITS . THIS IS DISCRIMINATORY BUT SINCE EVERYTHING IS GOVERNED BY THE SERVICE CONDITIONS WHICH ARE AGREED UPON BY THE INDIAN BANKS ASSOCIATION REPRESENTING THE BANKERS AND THE RESPECTIVE TRADE UNIONS IN THE BANKING INDUSTRY YOU CANNOT CHALLENGE IT IN ANY COURT OF LAW.- JOSEPH WILFRED - 23/10/2013 AT 19:54 HRS   

DEAR MR. ROY

                           IF YOU HAVE NOT EXHAUSTED THE TIME LIMIT FOR SUBMITTING AN " APPEAL BEFORE THE APPEALLATE AUTHORITY " , YOU SUBMIT AN APPEAL TO REDUCE THE PUNISHMENT TO THAT OF " COMPULSORY RETIREMENT " IN WHICH CASE YOU WILL BE ENTITLED TO ALL THE BENEFITS INCLUDING PENSION BUT THE PF CONTRIBUTION MADE BY THE EMPLOYER MUST BE RETURNED TO THEM AT THE RATE OF ONE AND HALF TIMES OF THE AMOUNT STANDING TO YOUR CREDIT. YOU WILL BE GETTING ONLY YOUR PF CONTRIBUTION . BUT IF THE BANK HAD SUFFERED ANY LOSS , YOU MUST STATE IN YOUR APPEAL THAT YOU ARE PREPARED TO MAKE GOOD THE LOSS. AFTER SUBMITTING THE APPEAL " YOU MUST PULL THE STRINGS " TO SUCCEED IN THIS MATTER BUT IT IS VERY DIFFICULT- JOSEPH WILFRED - 23/10/2013 AT 20:07 HRS. 

This is a very interesting thread. The learned experts/members have enriched the forum with their valuable advice.

The purpose of this post is not to disagree but to further the discussion and gain from discussion.

In this thread the employee is employee of a Nationalized Bank and Employees' Provident Funds and Miscellaneous Provisions Act 1952 is not applicable.

The bank has its own Provident Fund Rules which are applicable in this case.

The funds in the PF account of the employee are not maintained by EPFO and hence there is no point and question of attachment of PF.

There are judgments delivered by courts of law vide which it has been held that:

“Bank’s contribution to the PF Account of a member may be forfeited where the member employee is dismissed for his misconduct causing financial loss to the Bank but only to the extent of such financial loss.”

Here in the present case being discussed in this thread the querist Mr. Roy may provide copy of the PF rules of his bank that provide for forfeiture of PF and may mention in specific that whether his bank has been able to prove the exact loss caused to the bank, and whether the bank issued the statutory show-cause notice which is required before a decision is taken for forfeiture of the Bank’s contribution to the PF Account and whether there is a  clear violation of the principles of natural justice.

The querist Mr. Roy may mention if the forfeiture of PF is  by specific PF rules of the bank or by an order of the administration..................

>> The funds in the PF account of the employee are maintained by PF trust of the bank and as cited from PF rules of Bank of Baroda recovery can be made by Trustees from employer’s contribution and interest accrued on it.

>> In another elaborate and illustracious judgment pertaining to case of dismissal of service the learned court has decided that:

”bank was within its jurisdiction in making deduction from the employer's contribution towards the provident fund payable to the petitioner.

The learned court has decided on the forfeiture of Gratuity too.

Incidentally in this case the Bank is Bank of Baroda.

Bombay High Court

Shri Ramchandra S. Joshi vs Bank Of Baroda on 5 April, 2010

https://indiankanoon.org/doc/1767401/

13………………….” It is, therefore, not possible to hold that there has been any manifest injustice in deducting the gratuity amount.”

“14. Insofar as the provident fund is concerned, Rule 18 of the Bank of Baroda Provident Fund Rules provides for deduction of the employer's contribution in a case where the member is dismissed for misconduct causing financial loss to the bank. In our opinion, therefore, the respondent bank was within its jurisdiction in making deduction from the employer's contribution towards the provident fund payable to the petitioner.”

>> In another elaborate and illustracious judgment pertaining to case of dismissal of service ( Not involving a Nationalized Bank) the learned court has decided implying that:

There has to be clear provision of forfeiture in the provident fund rules for effecting the forfeiture. If there is no such clause the employer can not forfeit the PF.

Delhi High Court

Delhi Transport Corporation vs Sh.Ashok Kumar Sharma, ... on 23 August, 2011

https://indiankanoon.org/doc/139679319/

“This is an application by the respondent/applicant for release of the employer's share of Provident Fund standing in the credit of the respondent with upto date interest.“

“The applicant has contended that the Provident Fund of the employee including the management share cannot be forfeited by the petitioner/non applicant in the absence of any provisions in the EPF and Miscellaneous Provisions Act (1952) or under any other regulations WP(C) 7661 of 2010 Page 2 of 6 namely DTC Employee Provident Fund Regulations of the petitioner- corporation. “

“The applicant asserted that he sought information under the Right to Information Act, 2005 as to under which rule/regulation the management share of Provident Fund of the applicant could be forfeited or withheld. In reply to the query raised by the respondent/applicant, a reply dated 26th November, 2009 was received by him stipulating therein that there is no provision to forfeit the management's share of the Provident Fund standing to the credit of any employee in the EPF Rule/Regulation except in the case of a person charged with the offence of murder.”

“For the foregoing reasons the application is allowed. The petitioner is directed to release the employer's share of the Provident Fund standing to the credit of the respondent in accordance with rules and regulations after taking into consideration the amount already released to the respondent. The respondent has also undertaken that in case the writ petition is allowed and it is held that the petitioner was entitled to forfeit the amount of the Provident Fund of the respondent, then in that case the respondent shall refund the Provident Fund along with interest to the petitioner. With these observations, the application is disposed of.“

>> In another elaborate and illustracious judgment pertaining to case of dismissal of service of an employee of a Nationalized Bank the learned National Commission has decided that:

NATIONAL  CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

Revision Petition No. 2975 of 2006

(from the order dated 07.07.2006 in Appeal No. 238 of 2004 of the State Consumer Disputes Redressal Commission,

Delhi)

UCO Bank Vs K L Kapoor

“Unless and until the Bank proves that losses have been caused due to the misconduct or fraud of the employee, the Bank has no authority, not to release the equal contribution made in the provident fund account of the employee.”

“even before the State Commission, Petitioner was totally unable to provide any evidence that the Respondent had caused a loss”

“We have also gone through the relevant rules of the Bank’s Employees Provident Fund Rules. According to Rule 18, if a contributor is dismissed for fraud or misconduct, the Bank apart from not releasing their part of the contribution is required to declare the amount of loss or damage and is entitled to recover it from the contribution made by the Bank to the individual account of the contributor.”

“On his dismissal the Bank released Rs.3,62,378/- which was the Respondent’s contribution to his provident fund account, but the Petitioner did not release an equal contribution amount of Rs.3,62,378/- which was the Bank’s contribution to Respondent’s provident fund. As per the UCO Bank PF Rules a contributor who is dismissed from service on account of fraud and misconduct shall be entitled to only payment of that amount of the PF to which he has contributed and the Bank’s contribution shall lapse to the fund.”

“that he was not even issued the statutory show-cause notice which is required before a decision is taken for forfeiture of the Bank’s contribution to the PF Account. This is clearly a violation of the principles of natural justice.”

Valuable advice of learned experts/members is sought.

DEAR MR. SUDHIR KUMAR

                                               YOU MAY BE SPEAKING THIS FROM THE POINT OF LAW . AT NO POINT OF TIME , I HAVE NEVER SAID THAT PF CAN BE FORFEITED BY THE BANK . BUT PF CAN BE ADJUSTED FOR THE DUES OF THE EMPLOYEE , EVEN WITHOUT GETTING HIS / HER CONSENT AND WITHOUT HIS KNOWLEDGE . THIS SHOULD NOT BE DONE . BUT NATIONALIZED BANKS DO THIS EVEN WITHOUT INFORMING THE COURT . IN A CASE OF VOLUNTARY CESSATION OF EMPLOYMENT ALTHOUGH THE EMPLOYEE WAS SENDING LEAVE LETTERS WITH PROPER MEDICAL CERTIFICATES WHICH WERE ACKNOWLEDGED BY THE BANK [ JUST FOR A PERIOD OF SEVEN MONTHS   ] THE BANK RETIRED HIM UNDER VOLUNTARY CESSATION OF EMPLOYMENT IN THE YEAR 1995 BECAUSE HE HAPPENS TO BE A UNION EMPLOYEE . EVEN THERE IS A CIRCULAR FROM THE INDIAN BANKS ASSOCIATION IN AUGUST 1985 AS A CLARIFICATION TO THE FIFTH BIPARTITE SETTLEMENT IN JUNE 1985 THAT BANKS SHOULD NOT USE THIS CLAUSE EVEN IF THE BANK HAD RECEIVED A SINGLE LETTER FROM THE EMPLOYEE FOR A REQUEST FOR SANCTION OF LEAVE ON LOSS OF PAY . BUT THE BANK APPLIED THIS CLAUSE IN 1995 AND RETIRED THE EMPLOYEE FROM THE BANK'S SERVICE WITH EFFECT FROM JUNE 1995 ALTHOUGH IN THE ATTENDANCE REGISTER  IT WAS MARKED AS " L " FROM NOVEMBER 1994 TO JUNE 1995 .THE EMPLOYEE APPROACHED THE HIGH COURT AND HIS WRIT PETITION WAS ADMITTED IN JANUARY 1996 .THE BANK FILED THE COUNTER ONLY IN THE FINAL HEARING IN APRIL 1997.IN THAT NOTHING WAS MENTIONED THAT HIS PF AND GRATUITY WERE ADJUSTED TOWARDS THE LOAN DUES PAYABLE BY HIM TO THE BANK .ALTHOUGH ORDERS WERE RESERVED IN THE 2ND WEEK OF APRIL 1997 , THE WRIT PETITION WAS AGAIN LISTED FOR HEARING ON 29TH APRIL 1997. AFTER ARGUMENTS THE WRIT PETITION WAS DISMISSED ON THE ONLY GROUND THAT THE EMPLOYEE HAD NOT GONE THROUGH THE PROCESS OF CONCILIATION PROCEEDINGS AND THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL. AFTER RESERVING THE ORDERS EVEN THE HIGH COURT HAD NO POWERS TO BRING THE WRIT PETITION IN THE LIST ONCE AGAIN .THE CASE WENT UPTO THE SUPREME COURT AND THERE A BARRISTER AT LAW AND FORMERLY THE BANK'S DIRECTOR IN 1984 APPEARED . EVEN THERE THE SPECIAL LEAVE PETITION WAS DISMISSED ON THE SAME GROUND IN THE YEAR 1997 . THEREAFTER HE STARTED FROM CONCILIATION AND THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL . THE CROSS EXAMINATION OF THE MANAGEMENT WITNESS AT THE CENTRAL GOVERNMENT INDUSTRIAL RUNS TO 40 PAGES AND 65 DOCUMENTS WERE MARKED AS WORKMEN EXIBITS INCLUDING THE ATTENDANCE REGISTER .THE CASE IS NOW IN THE HIGH COURT FROM THE YEAR 2005 AND NOT BROUGHT FOR FINAL HEARING BECAUSE THE SENIOR ADVOCATES OF THE WORKMEN HAD BEEN ELEVATED AS JUDGES OF THE HIGH COURT IN 1999 , 2000 AND 2006 . THE WORKMEN DOES NOT WANT TO TAKE RISK AGAIN AND KEPT THE CASE PENDING TILL DATE . EVEN IN THIS CASE THE MANAGEMENT HAD FILED THE COUNTER IN THE WRIT PETITION IN 1997, BEFORE THE LABOR COMMISSIONER IN 1998 , AND THEREAFTER BEFORE THE CENTRAL GOVERNMENT GOVERNMENT INDUSTRIAL TRIBUNAL IN 1999   . IN THESE COUNTER , THE BANK HAD NOT MENTIONED THAT , IT HAD ADJUSTED THE PF AND THE GRATUITY OF THE EMPLOYEE TOWARDS THE LOAN DUES PAYABLE BY HIM TO THE BANK . THIS CAME TO THE EMPLOYEES KNOWLEDGE ONLY IN THE YEAR 2005 WHEN HE WENT TO CLOSE HIS LOAN ACCOUNTS IN THE BANK IN THE YEAR 2005 . TILL THIS DAY , THERE IS NO KNOWLEDGE , HOW MUCH WAS PAID TO HIM AS HIS PF AND GRATUITY AND HOW MUCH WAS ADJUSTED TOWARDS THE LOAN DUES IN THE YEAR 1996 ITSELF .FROM THIS YOU WILL KNOW HOW NATIONALIZED BANKS ARE FUNCTIONING FLOUTING THE LABOR LAWS .- JOSEPH WILFRED - 25/10/2013 AT 11:05 HRS.  

In his latest post Mr. Sudhir Kumar has made imp. observation that PF can not be attached even by decree of the court.

Although the querist Mr.Roy has not been partipating in the discussion, the valuable advice given by Mr.Sudhir Kumar has set the course for an imp. discussion and it can benefit all.  

Given below are the judgments delivered by Supreme Court of India and other courts taking light from it that implies retrial benefits can not be attached and even after the retrial benefits reach the hands of retiree these do not loose their character.

>> Code of Civil Procedure, 1908

Provided that the following particulars shall not be liable to such attachment or sale, namely:—

(g) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer, or payable out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pension;

{{ https://www.lawzonline.com/bareacts/civil-procedure-code/section60-code-of-civil-procedure.htm}}

>> Supreme Court of India

Radhey Shyam Gupta vs Punjab National Bank & Anr. on 4 November, 2008

https://indiankanoon.org/doc/1790038/?type=print

“………..amounts paid towards gratuity and pension could not be attached in view of the provisions of proviso (g) of Section 60(1) of the Code of Civil Procedure”

15…………….“the appellant's Fixed Deposits which represented his retiral benefits could not be attached or sold to satisfy the decree obtained by the Decree Holder Bank. She urged that even after the retiral benefits obtained by the appellant had been converted into Fixed Deposits it did not lose its essential character of comprising the retiral benefits of the appellant, and could not, therefore, be attached in view of proviso (g) to Section 60 (1) of the Code.’

“finds support in the decision of this Court in Calcutta Dock Labour Board and another v Smt. Sandhya Mitra and Others [(1985) 2 SCC 1], wherein it was reaffirmed that gratuity payable to dock workers under a scheme in absence of a  14

Notification under Section 5 of the Payment of Gratuity Act, 1972, would not be liable to attachment for satisfaction of a Court's decree.”

17……………… where while dealing with the provisions of Sections 3 and 4 of the Provident Funds Act, 1925, prohibiting attachment of sums held by the Government, as well as proviso (g) to Section 60(1) of the Code, this Court held that till such time as amounts payable by way of provident fund, compulsory deposits and pensionary benefits did  15

not reach the hands of the employee they retained their character as such and could not, therefore, be attached.

25……………….” We also agree ……….. that even after the retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be  22

covered by proviso (g) to Section 60(1) of the Code.”

>>  The above is also reiterated in :

Andhra High Court

A.K.Dass vs Counsel For Petitioner : Sri M. ...

C.R.P.No.1657 of 2012

https://www.indiankanoon.org/doc/136338692/?type=print

>> The above SC decision is also reiterated in:

Central Administrative Tribunal - Ernakulam

Indian Kanoon - https://indiankanoon.org/doc/102072965/

Central Administrative Tribunal - Ernakulam

C.Gopalan, S/O Keeran vs Union Of India Represented By ... on 21 March, 2012

ERNAKULAM BENCH

O.A No. 1017/2011

https://indiankanoon.org/doc/102072965/

16. The only point left to be considered is that the agreement executed between KSFE and the applicant provides for recovery of the dues by KSFE from the DCRG. The question is whether the same could be stultified by the  applicant taking shelter under the protection available under the Pension Rules and whether the Tribunal could be a party for breach of such contract. Answer to this question is not far to seek. As discussed above, the CCS(Pension) Rules do not provide for adjustment from the DCRG of dues other than Government dues. As such, any term in the agreement or contract agreeing for such adjustment is contrary to the provisions of the Rules.

 The judgements attached in this thread indicate Gratuity is property and fundamental right.

Valuable advice of learned experts/members is sought.

Dear shri Doabji,

Although  I am not participating but I am participating by reading all the comments.Since my level of knowledge is not so enriched to comment some thing new ,I am viewing the comments  earnestly which are very important feed back.