Dear vkokamthankar,
Differing in opinion is your right. You can differ with me or even with all other members of this forum. Nobody can prohibit you. If you feel something, others can also express their feelings. If you can declare it as naive on my part to discuss or argue, I can also declare it naive on your part to discuss or argue like that in which you have tried to stress your point.
MIND IT, interpretation of any legal provision, except on the face of the existing provision of the language, is not within the right of anyone except the Ministry of Law of the Government of India, or the competent court of law. Nobody can add or omit any specific word against the existing provisions in the legal language. So, your interpretation about Section 13 with stress on the word EVEN, while stating "not allowing even courts of this country to attach gratuity amount" does not justify at all, when the language is very clear and specifically meant for courts only.
Would you kindly like to clarify, who else can attach the amount due to be paid to anyone? Can an employer issue an attachment order? For your information, attachment cannot be made by any person other than a court of law. So, where comes the question of attachment by EVEN courts?
Evidently, just to oppose my views, you clearly seem to have forgotten that the present case, as referred to by the poster of this thread DOES NOT RELATE TO ATTACHMENT or FORFEITURE of gratuity.
The question of attachment by courts arises in cases filed by any third party, not having been related to the employer or the employment of the concerned employee, like Banks, Mortgage companies, etc. So, Section 13 provides protection from attachment by courts against the debt of any third party against the employee. You may better discuss this issue with some judge to have clarification about attachment or the provisions of Section 13 of the Gratuity Act if you feel my opinion is wrong.
If there is no specific mention of words ‘Employer’ or ‘Loan’ in the act, it is clearly evident that the provisions do not automatically bar the employer, who pays the money to adjust his own dues out of the dues admissible to the employee. Rather, it is clearly naive on your part to intentionally apply the provisions of the section negatively against the employer, when Section 13 has no relation with the employee and has specifically been designed to prohibit the courts to unnecessarily attach the dues against the employee against the dues of the third parties. You are advised to reread the section to make clear what it actually states.
Further, any judgment of any case law does not become universal. That is applicable individually only to the concerned case or if allowed specifically to some other particular case by virtue of the judgment of any court.
MIND IT, I am not an anti-employee person, which you can definitely observe from my hundreds of posts available in this very forum. Of course, to call a spade a spade is my habit, may that be in favor of an employee or an employer that I discuss very frankly.
PS Dhingra
Can you support your contention with any relevant case law that it's against the third party not against the employer? It does not matter whether protection provided is against a third party or the employer himself.
Is it mentioned in the Act anywhere? Is it not your own interpretation? Please, if you can.
Agree with you that attachment is the subject matter of Courts but even deduction, recoveries, or withholding also come under the purview of Section 13.
If it would have been not so, then certainly as contended by you, the court would have allowed deduction or withholding the payment of gratuity against any dues of an employee, but not in a single case. If it's in your knowledge, then kindly point out.
There are a plethora of judgments wherein the court has barred employers from withholding/deduction from employers (if you want I can mention), without any attachment from the court against the outstanding dues.
Withholding/adjustment/recoveries against outstanding dues to an employee is a sort of attachment as held in the recent judgment Neyveli Lignite Corp Ltd V/s O Raju and others 2010 LLR 506(Mad). It was not open to the respondent that they were justified in denying the payment of gratuity amount on account of the failure of the employee to pay house rent, electricity charge.
So, if there is any adjustment or recovery of any dues, then it's a sort of attachment. Such an action is not possible in view of Section 13.
Even if a workman gives an undertaking for making deductions, the gratuity of an employee cannot be withheld as per Ram Ranjan Mukherjee V/s Mining and Allied Machinery Corporation Ltd 2001 LLR 297(Cal HC).
As far as the interpretation is concerned, these interpretations are done by the competent court of law, not by any individual for their gain or profit, just to save the essence of the Gratuity Act being a piece of social legislation.
For the answer to the author of this thread who has asked about the legality of settlement which allows adjustment from the Gratuity, it is illegal. It's an agreement.
Section 14 of the Act clearly gives override effect to other enactments, any instruments, and contracts, etc., as the same was also held by the Allahabad High Court 2010 LLR 1119 All.
I know that it depends on the facts & circumstances of each case, but where the same question arises before the High Court or lower court, the lower court takes into consideration and has a binding effect within that state & has a pervasive value for others, until and unless the same has been overruled by the Court of a higher jurisdiction or by Double Bench or (B.D). For your information, if any judgment is passed by the Supreme Court of India, it has a binding effect by virtue of Article 141 of the Constitution.
Further views of members are invited.
Regards