Gratuity law
xxx
(Querist) 05 September 2013
This query is : Resolved
Dear All,
I have joined my current organization (BFSI - Mutual Fund to be specific) on 16-Dec-2008. The establishment works for less than six days in a week i.e. Mon to Fri. After Serving complete notice period as per my organization policy, my last working day was be 2-Aug-2013. As per records, I am completing 4 Years 7 Months 18 days Or Completing 4 Years & 230 Days.
As per Payment of Gratuity Act "Section 2A - Continuous service" am I not eligibile for pay out? If yes, help me with some SC or HC judgements as the company is insisting that inspite of 5 days working establishment my case falls under 240 days and not 190 days (applicable only to employee below the ground in a mine).
Being subject matter expert, your kind assistance will help me. also want to request for quick response.
If anyone needs any supporting information, kindly mail me.
Regards,
Deepak
Email : dshivathaya@gmail.com
Kumar Doab
(Expert) 05 September 2013
You may shift from asking, telling, speaking mode to written mode.
Who has stated: “inspite of 5 days working establishment my case falls under 240 days and not 190 days (applicable only to employee below the ground in a mine).’
Is it in writing?
Submit FormI as ap by redg. post to o/o Appointing Authority, MD and Claim that Mr/Ms…………………….designation……………………dept………………….name of company………………address…………….has declined to issue notice as per Section: 7: Determination of the amount of gratuity.
Claiming false applications that ‘my case falls under 240 days and not 190 days (applicable only to employee below the ground in a mine).’
This should entitle you interest for delayed payment.
You may discreetly draw attention of this ill willed, ill informed HR personnel and his employer and MD to provisions of penalty and punishment, imprisonment in
Section: 9: Penalties.
The correct provisions as stated in the Act:
Payment of Gratuity Act, 1972
Section: 2A: Continuous service: 2 (a) (i):
one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) two hundred and forty days, in any other case;
If you are not able to handle the matter on your own entrust it to your lawyer.
xxx
(Querist) 05 September 2013
Thank you Mr Doab for the quick and presice reply.
The same i.e. not entitled for Gratuity is stated by the company through HR Head.
Can I take it as a firm YES from your side that my case is entitled for Gratuity payout?
Instead of a notice can I start by sending an e-mail to HR head claiming my Gratuity. If any legal openion or court verdict is already available sednding it along with my e-mail will help. Do you have any?
Rajendra K Goyal
(Expert) 05 September 2013
You are entitled for the Gratuity. In-spite of sending e-mail claim Gratuity on prescribed form and then send e-mail reminders.
Kumar Doab
(Expert) 05 September 2013
The Payment of Gratuity Act is statue.
It is statutory obligation of the employer to pay Gratuity to eligible employee.
Section: 2A: Continuous service:……………..mentioned (copied and pasted) in this thread is a section of the enactment……………………………………..
It is simple, easy to understand and self explanatory.
You can download the complete Act from Dept of Labor website or buy from market.
You may discuss with your lawyer and let your lawyer can comment finally on your eligibility Yes or No in line with provision of the enactment.
If employer has not issued notice to you with a copy to Controlling Authority of Gratuity (DLC-Gratuity) then you should submit FormI.
If you don’t later you may have to appeal to condone the delay.
After submitting the FormI (by redg. post) you may submit emails…………………….
The HR-Head may reply to your emails or post his reply after receipt of FormI or still may not revert. It is decision of the company which we can not forecast.
Submission of FormI is not litigation………….
If the employer does not yield you can approach Controlling Authority of Gratuity……………
If the employer is adamant it shall have to interpret (false or correct interpretation) before Controlling Authority of Gratuity and authority may be pleased to award penalty, punishment, as pleaded by you and deemed fit by the authority, if the interpretation of the employer is wrong…………………………………….
There are many threads on Gratuity at LCI, you may go thru these………….. You shall get access to decisions by court of law as well. Your lawyer can also provide you the relevant court judgemnst.
http://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.UiihKNKAqWM
e.g;
http://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp
xxx
(Querist) 06 September 2013
Mr Doab, can you suggest a lawyer who is an expert on gratuity act, based out of MUMBAI and can help me take this forward with opinion, appeal and fighting the case if the need arises?
Kumar Doab
(Expert) 06 September 2013
NO.
If you wish to avail the services of LCI lawyer you can conduct search at:
http://www.lawyersclubindia.com/lawyers_search/#.UimX79KAqWM
The detail of related lawyers is being flashed by LCI at the bottom of this web page.
You can chat with and access Pro Lawyers of LCI.
The seniors and experts may guide you to a lawyer.
Your near and dear ones, relatives, friends, colleagues, can also guide you to a lawyer.
Submit FormI as ap.
xxx
(Querist) 26 September 2013
Mr Doab,
My company has reverted with the following on filing of my gratuity claim:
"The rule under Section: 2A Continuous service applies for special jobs plus it also has dependency on total no. of work hours in the week and not only days worked. The no. of work hours we clock is greater than 40 hours as prescribed by the law for a 5 day week operations and hence we fold under the 4 yrs and 240 day rule for being eligible for Gratuity."
I want your guidance / opinion on the following:
1) Is there any dependency or mention of special jobs in the rule?
2) Is there any dependency or mention of total number of work hours in the week in the rule? Our work timing Mon-Friday was from 9am to 6pm with 1/2 hour lunch break
Kumar Doab
(Expert) 26 September 2013
The extracts you have been posting from this HR-Head are so affirmative and authoritative that we have started to contemplate there might be solid reasons for the quotes.
We are however pointing out from our limited understanding and shall stand corrected.
Valuable advise of learned experts/members is sought.
It is not clear if the company has taken insurance from some approved FI or LIC or not and the company has to pay the gratuity from its own resources?
It is loudly clear that this HR head is determined to thwart the employee from submission of FormI and subdue the employee to believing that he/she is not eligible.
The majority of the employees don’t agitate for various reasons.
For understanding the Act, sections/sub sections you may yourself go thru the enactments carefully and seek help of local lawyer.
We have not come across the funda of special services and hours in a day and week stated in this Act.
If you by yourself or your HR-Head can point out this shall be an eye opener…………………..
You have mentioned that you are Mumbai, so you may go thru the enactments at website of Maharashtra Government…………………
-Payment of Gratuity Act, 1972
Sec:2A {3 Ins. by Act 26 of 1984, sec. 4 (w.e.f. 18-5-1984)}
http://www.mahashramm.gov.in/maha/acts_download/Payment_of_Gratuity_Act_1972.pdf
-THE GRATUITY ACT, 1972
The Payment of Gratuity (Maharashtra) Rules, 1972.
http://esipf.com/labour-law/The%20Gratuity%20Act.pdf
The concept of weekend offs is subjective of compnay’s internal policy.
ILO recommendations and guidance to moving to a 40 hour week
The right to gratuity is a statutory right and cannot be withheld under any circumstances…………………….It is a social security enactment and courts have been taking Pro Employee stance.
You may go thru:
>> Bombay Shops and Commercial Establishments Act:
2. Definitions:
(19) "Period of work", means the time during which an employee are at the disposal of the employer;
(28) "Spread over" means the period between the commencement and the termination of the work of an employee on any day;
5. Application of Act to other establishments and persons.
7. Registration of establishments.
13. Opening and closing hours of commercial establishments.
14. Daily and weekly hours of work in shops and commercial establishment.
17. Spread-over in commercial establishments.-
.18.Holidays in a week in shops and commercial establishments,- [(l) Every Shop and commercial establishment shall remain closed on one day of the week. [Except where the day is fixed under the provisions of sub -section (1B), the employer shall prepare] a calendar or list of such closed days at the beginning of the year, notify such calendar or list to the Inspector and specify it in a notice prominently displayed in a conspicuous place in the shop or commercial establishment:
NOTES
Under section 18(3) of the Act the only condition to be satisfied about the the period of employment and not about having worked a particular number of hours in the week or on each of the six days other than the closed days,
Sitaldas v. Kalekar 65 Вom. LR. 10.
63. Wages for overtime work.
(a) in the case of employees in shops and commercial establishments, nine hours in any day and forty-eight hours in any week;
NOTES
The limit of work for the purpose of section 14 of the Bombay Shops and Establishments Act, 1948, is entirely different from the limit of work laid down for the purpose of Section 63 of the Act. Whereas the limit of work for the purpose of section 14 is laid down in order to prohibit the employer from requiring an employee to make him work beyond the limit, the limit of work laid down for the purpose of section 63 is purely for the purpose of computation of overtime wages.
>> ILO guidelines;
According to the International Labour Organization (ILO)1, the standard weekly working hours (excluding overtime) cannot exceed 48 hours per week and eight hours a day. According to the ILO, "the imposition of hours limits was intended to ensure a safe and healthy working environment and adequate rest or leisure time between shifts."
Article 3 of ILO Convention No. 30 on the Hours of Work4 (Commerce and Offices) also stipulates working time of 48 hours a week and eight hours a day. Under this Convention, the maximum amount of working hours can be so "arranged so that hours of work in any day do not exceed ten hours" (Article 3). The Convention covers commercial or trading establishments, those working in administrative services and mixed commercial and industrial establishments.
Examples of exceptions where working hours may be extended under ILO Convention No. 30 include:
• General interruptions at work due to local holidays, accidents or force majeure. In these cases hours can be increased to make up for the hours that are lost. This is as long as the following conditions are met: hours lost can only be redeemed within 30 days in the year; the increased hours shall not exceed one hour in a day; and the daily working hours shall not exceed 10 (Article 5)10
In exceptional cases where the nature of the work does not make the standard workweek applicable the permitted hours of work will be determined by a "public authority". That is as long as the average number of hours "over the number of weeks" does not exceed 48 hours in a week and 10 hours in a day (Article 6)11
According to the ILO report, additional hour limits must be "reasonable" and must be "prescribed in line with the general goal of the instruments, namely to establish the eight hour day and 48-hour week as a legal standard".
As far as hours of work in commerce and offices are concerned, at the time of adoption of Convention No. 30, such limits amounted to 10 hours a day and 60 hours a week for intermittent work and 10 hours a day and 54 hours a week for preparatory or complementary work."
xxx
(Querist) 27 September 2013
Hi!
Is the gratuity enactment different state to state? Do I have a strong case in hand to take this up legally?
The company has not taken insurance from some approved FI or LIC and the company has to pay the gratuity from its own resources.
Kumar Doab
(Expert) 27 September 2013
From all of your posts it is construed that you have clear understanding of your matter at your hands.
You should submit FormI as ap and by redg. post.
You have posted that:
“The company has not taken insurance from some approved FI or LIC and the company has to pay the gratuity from its own resources.”
This seems to be the bone of contention and why nuisance is being littered.
Section: 9: Penalties: with emphasis on word’ WHOEVER’ may be read.
“Is the gratuity enactment different state to state?”
Payment of Gratuity Act, 1972 is a statue and all states have to follow it.
All states to frame rules for compliance.
Your state of Maharashtra has also framed rules including rule for Compulsory Insurance.
If your company has (read::: or don’t read::: willfully) not complied it is non compliance (which all affected employees should point out and help the authority determine penalty and punishment…………..) and company has to pay Gratuity + Interest + penalty; if any; from its own resources, and serve punishment; if any; awarded by the lawful authority.
All said and done all points raised by you have already been addressed illustrated and elaborated by a heartfelt opinion, to best of limited understanding that is possible in on line discussions.
It is felt that you should approach your lawyer in person, spend quality time with your lawyer and let your lawyer opine on the merits.
You may ask your lawyer for laying a claim to OT if workable and possible.
The lawyer that has seen all of your documents and has analyzed your inputs in person can advise you the best.
Finally: Rest is up to you. You may proceed as deemed fit at your end.
Valuable advise of learned experts/members is sought.
