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Gratuity entitlement

(Querist) 27 July 2016 This query is : Resolved 
Sir,
i have a query and need your support. Kindly let me know if I am entitled for gratuity? I have resigned from Govt . of India in the year 2008 after rendering 18 years of continuous service. I was not paid gratuity. Can some one please let me know if entitled for gratuity( as i think i am) and what is the way i can claim the same now.
To add to the above i would like to inform the experts that after resignation I left Govt service and joined private sector. Does this amount to Forfeiture of service on resignation? Can i be denied Gratuity on the said ground
I request our learned expert for guidance.
warm regards
Thanks and regards
dr g balakrishnan (Expert) 27 July 2016
if you had served 15 yrs u are entitled.
Guest (Expert) 27 July 2016
Your thinking is right.
Rajendra K Goyal (Expert) 27 July 2016
You are entitled, claim by submitting required forms.
R.K Nanda (Expert) 27 July 2016
Nothing to add.
Kumar Doab (Expert) 27 July 2016
Submit claim on prescribed form under proper acknowledgment.
dr g balakrishnan (Expert) 27 July 2016
in fact yr dept shd give instructions to u if failed it is deficiency of services attracts sec 21 of consumer protection Act as you are not just a customer once resigned.
adv.bharat @ PUNE (Expert) 27 July 2016
Do as per directive of expert.
Kumar Doab (Expert) 27 July 2016
Expert Dr. G. Balakrishnan has pointed to DCDRF.


It shall be an enriching discussion.


Pulling the employer to consumer court for deficiency in making payment of gratuity, can be another and good recourse.



Experts are requested to illustrate this recourse.

Guest (Expert) 27 July 2016
Sorry to differ with the advice of some members about the idea of consumer forum. Neither the employee paid any fee for any type of service due from his employer, nor there is any deficiency on the part of the employer on payment of any fee or charge by the employee, nor gratuity falls within the scope of service. It is employee's entitlement by virtue of his service rendered to the employer.

If the employee resorts to file any case with the consumer forum, as per my opinion, he would surely face flak.
dr g balakrishnan (Expert) 27 July 2016
Gratuity itself is treated as a property type right of the employee after the famous 9 bench judgement of SC, hope anyone in govt service may recall.

it is not some gratitude, though it is called gratuity, it is a deferred payment f one serves continuously more than 5 years, even in private sector; if gratitude type naturally no private employer would pay; so government as a model employer need to honor, if not no private employer would.

under Art 14, it could be read into Art 31 now to be read as Art.300A right to property, as a part of fundamental right when read with Art 13(1), friends.
Guest (Expert) 28 July 2016
Dear Dr. Balkrishnan,

Sorry to differ with your views.

Hope you are well aware about the distinction between property and service on one hand, and on the other, claim for property and claim for the deficiency in service.

In fact his claim falls within the ambit of the Payment of Gratuity Act, but neither under the Consumer Protection Act nor under the Transfer of Property Act.

About your views, "it is not some gratitude, though it is called gratuity, it is a deferred payment of one serves continuously more than 5 years, even in private sector; if gratitude type naturally no private employer would pay; so government as a model employer need to honor, if not no private employer would," if reviewed under the provisions of the Payment of Gratuity Act, your views are partially tru, not wholly, as even the property of gratuity can also be forefeited under certain circumstances.

So in that respect, you may also like to peruse Sec.4(6) of the Payment of Gratuity Act, 1972, that provides for forfeiture of gratuity.

Of course, in view of resignation case of the querist that provision cannot make any impact in the claim of the querist, but to suggest him to go for consumer forum can definitely tend to misguide the querist.

His entitlment is covered under Sec. 4(1)(b) of the Payment of Gratuity Act, 1972, which is beyond the jurisdiction of the Consumer Forum.

Hope, in the light of my above discussion, you would like to make a review your earlier opinion with reference to deficiency of service.
Guest (Expert) 28 July 2016
Dear Shri Kumar,

Hope, you would also like to agree with my above opinion in response to the views of Dr. G Balakrishnan.

About your opinion, "Pulling the employer to consumer court for deficiency in making payment of gratuity, can be another and good recourse," I am of the opinion that the querist should not be made to make his case as a test case in trial of a wrong source, as that can tend to lead him waste his time, energy and money in roaming around the consumer forums with negative results only.

Sorry for differing with your views.
Kumar Doab (Expert) 28 July 2016
Dear Shri Dhingra,



I would like to reiterate that I never, I am not now also..................tend to lead anyone to waste his/her time, money, energy.




I have posted it earlier also in many threads that my request to enriching discussion is not to misguide the querist/author.



I am not asking the querist to jump to DCDRF.


No one has posted so in this thread.




The seniors and experts have moderated may threads and made it enriching for everyone.




You have posted that: 'His entitlment is covered under Sec. 4(1)(b) of the Payment of Gratuity Act, 1972, which is beyond the jurisdiction of the Consumer Forum.'


You have pursued some descriptive judgments and have posted as above.

I concur with you as it is decided by courts of law referring to Payment of Gratuity Act,1972 .





There are decision by courts of law including apex court that :"consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".






Expert Dr. G Balakrishnan, has made interesting observations " so government as a model employer need to honor, if not no private employer would.

under Art 14, it could be read into Art 31 now to be read as Art.300A right to property, as a part of fundamental right when read with Art 13(1), friends."




Expert Dr. G Balakrishnan has been posting his learned and wise comments on constitutional matters in threads at LCI.



Hence I posted that 'Pulling the employer to consumer court for deficiency in making payment of gratuity, can be another and good recourse.'



I am still interested to explore if it is possible.





I would like to benefit from the enriching discussion on it and explore if the Govt. as employer is liable/can be pulled by an employee to consumer forum.





Therefore I would request Expert Dr. G Balakrishnan, you, and other experts and seniors to illustrate and moderate the discussion and make it enriching for everyone.















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