Kumar Sushank (General Manager - Finance) (1040 Points)
16 November 2019Employer gets a court order for the payment of full & final settlement of an employee & reinstate from Sep 2013. He is registered in PF from 01-09-2013
Now, Managements are planning to terminate the employee & also agree to pay 2 month salary.
Should I pay gratuity since inception or it would be calculate from Sep 2013?
Dhirajlal Rambhia
(SEO Sai Gr. Hosp.)
(177810 Points)
Replied 16 November 2019
From Sep 2013 onward...
Kumar Sushank
(General Manager - Finance)
(1040 Points)
Replied 17 November 2019
Thanks Sir... for your valuable advice.
We should pay 2 month salary for terminate the employee or any other criteria is also liable for this.
Actually, we are planning to cost cutting of the company & we are going to terminate some more employees, because they are consistently not achieved their target. All these employees are registered in PF as well as ESI & working in Delhi.
I am trying to get advice according to Labour Law.
Dhirajlal Rambhia
(SEO Sai Gr. Hosp.)
(177810 Points)
Replied 18 November 2019
Check the contract with employee individually or union, if any.
A 30 to 90-day notice period applies in order to terminate ‘workmen’ (as defined in the Industrial Disputes Act, 1947) – that is, employees whose role is not primarily supervisory, administrative or managerial) for convenience, with 15 days’ pay due for every year worked. In the case of manufacturing units, plantations and mines with 100 or more workmen, termination for convenience requires prior government approval; in other sectors, it requires only government notification.
Termination for cause does not include non-performance – it includes only behavior which qualifies as misconduct.
The ‘last in, first out’ principle requires that the employer first terminate for convenience the last people to join the organisation in the same role. However, this requirement can be contracted out of. When hiring for the same role, workmen who were terminated for convenience should be given the opportunity to re-join the company.
State laws generally provide for about 15 days of earned/regular leave a year. Employees also benefit from up to 10 days of sick leave and a possible 10 additional days of ‘casual leave’.
For more refer: INDUSTRIALEMPLOYMENT(STANDINGORDERS)
Kumar Sushank
(General Manager - Finance)
(1040 Points)
Replied 20 November 2019
I have a little Bit Confusion on the court order, Below points are mentioned on court order.
1. The amount towards Full & Final Settlement of all his dues and offered reinstatement from 01-09-2013 onwards with continuity of his previous service.
Here, Continuity of his previous service denotes about his work profile or we have to consider him as a regular employer since inception for Gratuity Payment?
Dhirajlal Rambhia
(SEO Sai Gr. Hosp.)
(177810 Points)
Replied 20 November 2019
Though the case is required to be studied in full specifically with its claims and pleadings..
Prima facie, it means.... if the worker was suspended from Sept. 2013 on any ground, by the order he has been reinstated; as such he should be paid GRATUITY as per act, i.e. from the date of his joining the organization.
Kapadia Pravin
(17259 Points)
Replied 22 November 2019
Kumar Sushank
(General Manager - Finance)
(1040 Points)
Replied 22 November 2019
Okay, It means we can't assume that according to court order (All his dues) we have already paid all his dues till August 2013.
Reinstatement from 01-09-2013 onwards with continuity of his previous service :
It means suppose he was joined in 01-04-1985 then we have to pay Gratuity according to 01-04-1985, It doesn't mean that PF joining date is 01-09-2013.
Kapadia Pravin
(17259 Points)
Replied 22 November 2019
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