Re: Gratuity call calculation

[Daum.net]

On Tuesday, 9 July, 2019, 12:16:30 PM IST, Prasada Rao <rprasad...@gmail.com> wrote:

Dated 8th July 2019

CIRCULAR LETTER FOR ALL ZONAL PRESIDENTS, ZONAL SECRETARIES, MEMBERS OF GOVERNING COUNCIL AND ZONAL COMMITTEES FOR NECESSARY INFORMATION AND TO MAKE WIDE CIRCULATION AMONGST THE MEMBERS, WHO ARE COVERED UNDER THE ISSUE.

 

Dear Friends,

 

Reg.:   “ACTION POINTS” to claim the difference in the Gratuity for the Officers who ceased to be in employment of the Bank by way of superannuation/VRS/SVRS having completed more than -30- years of service.

In above connection, we inform as under:

1.  COVERAGE

This communication has the applicability on the Retiree Colleague who:

1.1         Have joined the services in Bank of Baroda prior to 1.7.1979 (Appointed date for coming into effect of BOBOSR, 1979) in the Officer’s Cadre or were in Clerical Cadre and later on was promoted to the Officer’s Cadre.

AND

1.2.        Has put in more than -30- years of service in Bank of Baroda.

2.         BACKGROUND

2.1       The issue relating to correct calculation and the Payment of Gratuity on the basis of interpretation given Order dated 26.03.2019 of Ld. Controlling Authority under Payment of Gratuity Act, 1972 and Asstt. Labour Commissioner (Central), Ajmer in Case No. AJ-48(224)/2018-ALC – Shyam Sunder Sharma Vs. Central Bank of India, is gathering the accelerated momentum amongst the retiree officers throughout the length and breadth of the country though in the year 2017-2018, certain ALCs did give the interpretation for entitlement of Additional Gratuity as -one and a half month (1.5) and stepping up the gratuity entitlement but these orders were related to “Regional Rural Banks”.

2.2       However, so far as the Nationalized Banks’ is concerned, the said Order dated 26.03.2019 brings about the following aspects/legal properties:

2.2.1     The retiree Officers shall be entitled to one and a half (1.5) of a month’s pay as a gratuity for each completed year of service beyond -30- years.

2.2.2   In view of Section 4(5) of the Payment of Gratuity Act, 1972, the employee is entitled to have the “Dearness Allowance” included in the last wage drawn under “Service Regulations” i.e. in case of Bank of Baroda, i.e. our Bank, it is being BOBOSR, 1979.  

2.2.3   The calculation of gratuity, by taking the month’s Pay being -30- days and multiplying the quotient by -30- is incorrect. The quotient is to be multiplied by 26 and the gratuity entitlement is to be calculated accordingly

2.2.4 The place of residence after retirement, can be the relevant factor to determine and exercise of territorial jurisdiction. Thus, if an officer is retired from ‘Mumbai’ and now settled in Pali (Rajasthan), where at he is drawing pension also, the Controlling Authority having jurisdiction over Pali (Rajasthan) i.e. ALC, Ajmer can have the jurisdiction to entertain and decide the claim made in Form “N”.

2.2.5     The issue of delay cannot be put as defence by the Bank as the “Cause of Action” shall arise only after the Bank declines to the demand and within -90- days from such decline/refusal, the claim in Form N can be filed before the Controlling Authority.

2.3       BOBROA vide its communication dated 10.5.2019 to General Manager (HRM) of the Bank of Baroda has emphasized the need for immediate payment of deficit/short Gratuity as per the said judgment, which has the applicability to retirees of BOB too.

2.4       The Order dated 29.3.2019 have been subjected to challenge by the Bank per SB Civil Writ Petition No.9956/2016 titled as General Manager, (HRD), Central Bank of India versus Shyam Sunder Sharma before the Hon’ble Rajasthan High Court, Jaipur Bench, Jaipur and order dated 1.6.2019 provides in the following terms:

·         Though the alternate remedy under Act of 1972 is available but the indulgence by High Court is being granted as the office of appellate authority i.e. RLC, Ajmer is vacant since, March, 2019.

·         The Bank is to deposit the adjudicated amount being Rs.5,83,071/- with the controlling Authority, Ajmer.

·         Subject to deposit of the said amount, “effect and operation” of the order dated 29.3.2019 shall remained stayed.

2.5       BOBROA having examined the situation feels that in view of the present status of the legal proceedings, there exists a just and proper case for taking up the matter with the Bank and Statutory Authorities under Payment of Gratuity Act, 1972 for the reason that the highest amount payable under the following Gratuity Schemes ought to have been paid but the same amount in an illegitimate manner has not been done and makes out a case to put the demand before the Bank:

·         Bank of Baroda Gratuity Fund Rules & Regulations, 1975

·         Payment of Gratuity Act, 1972

·         Bank of Baroda Officers’ Service Regulations, 1979 (BOBSR, 1979)

 

3.           ACTION POINTS:

Thus, the Action Points for dealing with the issue are being suggested for due action as under:

3.1         The retiree colleague, having the coverage, should collect the records on basis of which gratuity stands calculated and paid to him/her by the Bank.

3.2.1      The calculation of the gratuity amount under the three modes as stated in para 2.5 are to be done with inclusion of “Dearness Allowance” under BOBSR, 1979 and the colleagues,   who are covered under Joint Note dated 25.5.2015 (10th BPS) coming into effect from 1.11.2012 onwards to include the “Special Pay” in the calculation. The components of monthly wages/emoluments last drawn to be taken into consideration for calculation of the Gratuity under these modes can be considered as under:

 

 

Components of Monthly Emoluments/wages last drawn

 

Bank of Baroda Gratuity Fund Rules & Regulations, 1975

Payment of Gratuity Act, 1972

Bank of Baroda Officers’ Service Regulations, 1979 (BOBSR, 1979)

Basic Pay

ü   

ü   

ü   

Stagnation Increment

ü   

ü   

ü   

Special Pay

ü   

ü   

ü   

Dearness Allowance

ü   

ü   

ü   

P.Q.P.

 

ü   

ü   

F.P.P. Basic

 

ü   

ü   

F.P.P. DA

 

ü   

ü   

P.P.P. Basic

 

ü   

ü   

P.P.P. DA

 

ü   

ü   

Total

 

 

 

            (“Special Pay” shall be applicable in case of officers covered under Joint Note dated 25.5.2015 effective from 1.11.2012)

3.2.2      It is relevant to mention that under the Payment of Gratuity Act, 1972, the ‘ceiling on the gratuity’ was notified by various Government Notifications as under:

Period

Amount of Ceiling on the Gratuity (Rs.)

01.04.1985 – 31.03.1988

50,000

01.04.1988 – 31.03.1995

1 lac

01.04.1995 – 23.09.1997

2.50 lac

24.09.1997- 23.05.2010

3.50 lac

24.05.2010- 28.03.2018

10 lac

26.03.2018- present

20 lac

3.2.3      Thus, under the Payment of Gratuity Act, 1972, the calculation shall be restricted to the above Ceilings.

3.3         From these calculations, the highest amount of the gratuity should be found out and the same be compared with the gratuity paid by the Bank and in case the entitlement is higher than the amount paid the same shall be short/deficit amount of the Gratuity and hence the subject to the Claim.

3.4.1      If the calculation creates a situation of short/deficit payment of Gratuity, the “Notice of Demand” is to be made to the Bank, the draft of which is being enclosed with this communication (at ANNEXURE “A”). It is stated that the contents of the Draft of Demand Notice is keeping in view the broad perspective and in view of individual requirement/ exigency context and in case the situation exists about- short/deficit payment of Gratuity, the demand is to be made.

3.4.2      The Demand Notice is to be sent to the Bank at following address by Email as well as Registered AD Post.

                                                         The General Manager (HRM)

Bank of Baroda

Head Office,

Baroda Bhavan,

R. C. Dutt Road, Alkapuri,

Baroda –390007.

Email: gm.hr...@bankofbaroda.com

3.5         The Bank is expected to comply with the demand raised, which is based on the sound legal interpretation, and if the same is complied with the matter for obvious reasons shall reach to logical conclusion.

3.6         The payment of “Additional Retirement Benefit (ARB)” on completion of 25 years of service in the Bank be completely delinked and not to be considered while arriving at the short/deficit graphs, as on the legal opinion obtained, BOBROA has taken the stand that payment of “Additional Gratuity” has no connection with “ARB” and for this separate recourse for “Additional Retirement Benefit-ARB” is being taken by filing Writ(s) in Hon’ble Delhi High Court, Delhi

3.7         In case, the Bank declines to requisition/demand for short/deficit payment of Gratuity, then within next -90- days’, (from receipt of such communication from the Bank) an Application in “Form –N” is required to be preferred with the concerned Assistant Labour Commissioner (Central) and Controlling Authority under Payment of Gratuity Act, 1972 who is exercising the jurisdiction on the place from where the pension is being drawn by the Retiree Officer.

3.8         So far as the action to be initiated by preferring/filing Application in Form “N” prescribed under Payment of Gratuity (Central) Rules, 1972 on having the study of the response given by the Bank to the demand notice, we shall come out of the action plan as well as the jurisdictional information in due course of time.

3.9         While it is suggested and recommended that the “Demand Notice for Payment of Deficit/Short Gratuity” be sent by the concerned individual eligible retiree officer immediately to the Bank in view of the importance and vitality of the issue, BOBROA is seized with examination of the issue for collective action to remedy the situation before Hon’ble High Court(s)/Supreme Court.

4.           We shall be glad to receive any issue for clarification in the matter, which after requisite assimilation and collation, shall be responded collectively in view of the evolving situation.

With fraternal greetings.

 

Yours fraternally,

-Sd.

(V. T. MAKWANA)

General Secretary

 

Encl.: As above.  

 

1. Draft of the Demand Notice to be preferred by the concerned retiree member to the   Bank. - ANNEXURE “A”.

2. Copy of the Judgment/Order dated 26.03.2019 of ALC, Ajmer. - ANNEXURE “B”.

3. Copy of the Order dated 02.06.2019 passed by the Hon’ble Rajasthan High Court, Jaipur in SBCWP 9956/2019 – General Manager (HRD), Central Bank of India versus Shri Shyam Sunder Sharma. - ANNEXURE “C”.

4. Notification dated 16.10.2014 about PAN India jurisdictional distribution of Continuing Authority under Payment of Gratuity Act, 1972. - ANNEXURE “D”.

5. Notification dated 16.10.2014 about PAN India jurisdictional distribution Appellate Authority under Payment of Gratuity Act, 1972. - ANNEXURE”E”

.