The dispute pertains to dismissal for absenteeism which does nor bar him from receiving the Gratuity.
You should have settled it together with other dues at the time of dismissal. You should thank your star for his not raising dispute on delayed payment of gratuity.
Now settle this without any further delay .
7th September 2018 From India, Mumbai
In the absence of any action by the employer forfeiting the gratuity of a dismissed employee u/s 4(6) of the P.G Act,1972, the employer has to make arrangements to disburse the amount of gratuity to the dismissed employee within 30 days from the date it became payable or deposit the amount forthwith with the Controlling Authority. Such a drastic failure on either way on the part of the employer can not come to the aid of the employer later either to repudiate the claim for gratuity on the ground of delay/latches or against the levy of interest on the amount of gratuity.
15th September 2018 From India, Salem
For arriving at an appropriate answer, first, we have to critically analyze the following aspects of
(i) the orders of termination of employment passed by the employer and
(ii) its impact on the eligibility of the terminated workman for gratuity pertaining to the period of service
rendered before such termination and the legal obligation of the employer to pay gratuity.
The orders of termination is dismissal against the workman's alleged habitual absence after following the due procedure of Law according to the employer. Procedural lapses, if any in the disciplinary proceedings are subject to judicial scrutiny and as such one can not prejudge as of now the final outcome of the pending dispute. However, it is certain that the orders of dismissal is not against any misconduct on the part of the workman exhaustively enumerated in clauses (a) and (b) of section 4(6)(1) of the PG Act,1972 and no action was initiated in this regard to forfeit the gratuity either in part or whole as mandated by sec.4(6) of the Act.
Automatically it implies that the eligibility of the workman to claim gratuity for the period of service rendered by him according to his entitlement stands intact.Hence the employer's legal obligation to pay gratuity for the service prior to the date of termination subsists despite the dismissal orders. He ought to have arranged for its payment within 30 days from the date of dismissal as contemplated u/s 7(3) or deposited the amount in case of any dispute by way of refusal by the workman as per Sec. 7(4)(a) of the Act respectively.
Now coming to the dispute against dismissal pending before the Labor Court, if the workman succeeds, he may be ordered to be reinstated with or without back wages but certainly with continuity of the service before dismissal. If the employer succeeds, dismissal of the claim by upholding the orders of the dismissal. Anyway, the claim for gratuity for the service prior to dismissal would survive.
Had the amount been deposited with the Controlling Authority earlier, now the workman can be directed to the C.A and objection,if any could be filed by the employer against the disbursement in view of the pending case. It is for the C.A to decide. If the C.A sustains the objection of the employer, he may refuse and the workman has to wait till the disposal of case before the Labor Court or withdraw the dispute for getting the gratuity early. If the C.A overrules the objection and releases the deposited amount, the claim for gratuity in respect of the service prior to the date of dismissal becomes settled once for all irrespective of the nature of disposal of the pending dispute.
Thus, in as much as there is no dispute about the eligibility of gratuity for the service rendered prior to dismissal, my conclusion is that receiving gratuity while the dispute against dismissal is still pending, will not be a tacit acceptance of the termination nor will it dilute the claim of the workman for reinstatement.
11th January 2019 From India, Salem
This way you can settle a long run case and you will be in win-win situation. This is the right time, because " camel came down the hill'' be proactive .................................> I hope all the senior members of the forum will agree to point
11th January 2019 From India, Mumbai