Regarding gartuity

This query is : Resolved 
 



Guest (Querist)
21 September 2017

We have paid a gratuity amount on the basis of (Basic Salary * Years * 15 / 26) as we did not have DA in our salary structure. Our company is a Pvt Ltd. Our ex-employee is asking nowto pay gartuity in below mention

The amount for my Gratuity deposited in my account is 1,00,385 is not calculated correctly the Formula Used (Basic Salary * Years * 15 / 26) is not correct.

As per the Gratuity Act 1972 The Formula Should be
Basic+DA * Years * 15 / 26 if the DA is not applicable in the company then 120% of Basic is consider as a DA.

As per my knowledge The Gratuity amount should be

(Basic + DA 120%)


Isaac Gabriel (Expert)
21 September 2017

The presumption" If the DA is not applicable 120% of the basic is considered as DA" is hypothetical.Last drawn salary is the criterion for calculation.

Rajendra K Goyal (Expert)
21 September 2017

Agree with the expert Isaac Gabriel.

Dhingra: 1962dcg@gmail.com (Expert)
Click to Talk
21 September 2017

You have to act according to the provisions of the Gratuity Act, not on the basis of any assumption.



Guest (Querist)
21 September 2017

Thank you so much for resolving my query.

Dhingra: 1962dcg@gmail.com (Expert)
Click to Talk
21 September 2017

You are welcome.
......

Kumar Doab (Expert)
21 September 2017

You may go thru:

Payment of Gratuity Act,1972;S; 2,4,7

http://www.labour.nic.in/sites/default/files/ThePaymentofGratuityAct1972.pdf

Calculate Gratuity:

{ (Basic+DA)/26*15*No. of years in service}

(Basic+DA) is as per last drawn salary.

NO. of years; If employee has worked for more than 5 calendar years then for last year take period

> 6 months=1Y

< 6 months=0Y

Kumar Doab (Expert)
21 September 2017

You seem to have already checked; DA is not applicable to your establishment /applied in your establishment, employee……..

If establishment is paying wages equal to or more than applicable enactments to employee/establishment e.g; Min.Wages Act, then there should be no error in calculation…

Kumar Doab (Expert)
21 September 2017


Even if employee has not submitted the form as mentioned by you the establishment/ employer could have supplied the Notice of Determination of Gratuity, payment of Gratuity……. on its own.

Employer/designated employee in establishment say HR could have supplied FormI to employee.

If payment of Gratuity is not made within 30days from LWD the interest @10% is applicable for the delayed period.

You can reply to communication of employee and mention that the amount paid is correct, if it is correct.
Employer/designated employee in establishment do not have to pay as per calculation of employee but in concurrence to the provisions of Act.

If there is any balance, the designated employee may process and pay and close the matter.



Guest (Querist)
27 September 2017

Hi Sir,

I have received the notice. Please have a look and suggest.

Madam,
Under instructions from my client Shri Imran Khan s/o Sultan Khan, R/o Kadar Zenda, Kamptee I have to serve upon you the following notice.
1] That, my client was working as a Senior Programmer in your Company since 2.11.2009 and he worked continuously without any break till 28.6.2017. After rendering 8 years, he submitted resignation with your company which was duly accepted and accordingly, on and from 28.6.2017 he has been relieved from your company.
2] That my client received an amount of gratuity to the tune of Rs. 69,909/- and the said gratuity has been calculated by your office on his last drawn salary Rs. 33,467/- and by taking into consideration the last drawn salary Rs. Rs. 33,467/- the amount of gratuity has been paid to my client as mentioned above.
3] That as per the provisions of the Gratuity Act which is applicable to all establishment, institution and others through out the India the gratuity has to be paid by taking into consideration the basic pay and dearness allowance. The gratuity has to be calculated as per the provisions of Gratuity Act and under the provision of Gratuity Act the calculation is basic pay + D.A. X 15X years of service and divided by 26. Now, the employees working are entitled for D.A. of 120 % and taking into consideration the 120 % of D.A. the gratuity ought to have been calculated as under :
Basic Rs. 15,147/-
D.A. Rs. 18,176/-
---------------
Total Rs. 33,323/-
---------------

4] As per the aforesaid calculation as mentioned above, the amount of gratuity which ought to have been paid to my client comes to Rs. 1,53,798/-. On the contrary, my client has been paid Rs. 69,909/-. As such, my client received less gratuity of Rs. 83,889/-. In view of the aforesaid legal position I hereby called upon you to pay Rs. 83,889/- to my client with interest thereon on and from 1.7.2017 for delayed payment of gratuity as per provisions of Payment of Gratuity Act. Failing which my client shall be constrained to file appropriate proceeding against you in the Court of law and in that event you shall be liable for the cost and consequences. Please take the notice and do the needful.
Notice charges Rs. 5,000/-



Guest (Expert)
27 September 2017

Ms. Rinu Khirodkkar,

In your query, itself there are good contradictions, e.g., you have paid gratuity amount on the basis of basic salary * years of service * 15/26, but as per your knowledge gratuity amount should be (basic+DA 120%), so why erred?

Secondly, DA is not applicable in the company, but you believe 120% DA should be considered for calculation of gratuity. So, when you believe, why paid less as against your own perception?

Question arises, what is the source of your knowledge that the gratuity should be (basic + 120% DA)?

NOW THE BASIC QUESTION ARISES, what is your position in the company and how you are responsible for the payment of gratuity?

Dhingra: 1962dcg@gmail.com (Expert)
Click to Talk
27 September 2017

Mr. Jigyasu may perhaps have yet to learn that academic questions are never asked with reference to the position held by anyone in the organization. However, he has shown a very valid jigyasa on his part.

It is not understood, why he is worried, when a fake expert, Mr. Kumar Doab is here to confuse more to the querists by imparting tutorials with multiples of his vague posts.





Guest (Querist)
27 September 2017

Dear Sir,

I have paid the gratuity on the basis of Gratuity act and I don't believe the 120% to be added in DA. I have received a notice to pay the balance amount. Gabriel Sir/ Dhingra Sir please guide me.



Guest (Expert)
27 September 2017

Ms. Rinu Khirodkar,

You have not replied my questions. Probably, you have not read the questions properly, particularly about the basic question, i.e., if you paid the gratuity amount in what capacity or position you were employed in your organization.

Secondly, I have not presumed anything. It is all as based on description of your problem, where you have very clearly written, "AS PER MY KNOWLEDGE THE GRATUITY AMOUNT SHOULD BE (BASIC + DA 120%) .

Not only that, before that sentence, you have clearly written, "as per Gratuity Act THE FORMULA SHOULD BE Basic+DA * Years * 15/26 IF THE DA IS NOT APPLICABLE in the company THEN 120% OF BASIC IS CONSIDERED AS A DA.

SO, WHAT IS THIS IF YOU DON'T BELIEVE 120% TO BE ADDED IN DA.

So, just think, where you stand in your own clarification with specific reference to the description of your own original query?


Dhingra: 1962dcg@gmail.com (Expert)
Click to Talk
27 September 2017

Ms. Rinu Khirodkar,

If you want to gain any knowledge, you should not try to belittle any expert. In fact, it is not your clarification, rather, you have tried to directly inflict insult on Mr. Jigyasu in a bid to prove him wrong, when your original query stands proof of your falseness in your clarification.

You may believe or not in whatever you have already confessed, but I believe, neither you have paid any gratuity, nor received any such notice, which you pretend. What I can believe is, it is merely your academic query, which you have tried to adapt to hoodwink the querists. I also had the clear answer to your query, but seeing your smartness in the way of putting your question, I simply stated, "you have to act according to the provisions of the Gratuity Act.

Had you paid any gratuity, you could have readily answered the query made subsequently by Mr. Jigyasu about your position in the company..

In fact, in the very first post after your joining the LCI, you have very clearly demonstrated your intention to hoodwink the experts



Guest (Querist)
27 September 2017

Dear Sir,

I am working as HR lead and I have the query related to notice which I have received from ex-employee. DA 120% is written by ex-employee. As per my knowledge & experience gratuity is calculated on the basis of last drawn basic* number of years for eg: if person work for 5 years 5 month it will be considered as 5 years only and if person work for 5 years 7 months we will consider it as 6 years * 15 and /26. I have shared the notice so that I can get expert guidance here.

Dhingra: 1962dcg@gmail.com (Expert)
Click to Talk
27 September 2017

You need not give me examples of how you work out qualifying service for gratuity. That I know very well. A pertinent question arises, if you are HR lead in your organization, what is the specific reason that you have not sought clarification from your superiors as well as the Company Secretary and the legal department of your own company?

Dhingra: 1962dcg@gmail.com (Expert)
Click to Talk
27 September 2017

Basically, your question is of commercial nature for which, you should have sought help of your own organisation's company secretary, chartered accountant or if no such position, would have hired services of some expert on labour & service matters, more so when you have received a legal notice and also have to reply that, if you are not agreeable on the contents of the notice.

Based on the way you adopted for asking clarification, I still believe it to be your fabricated story, not a real problem.





Guest (Expert)
27 September 2017

I am obliged on Senior Expert, Mr. Dhingra's support on my views.



Guest (Querist)
27 September 2017

Dear Sir,
I am not the expert and I am seeking advice from the experts. My director is the authorised to pay the gratuity amount and he paid the amount. I am working as HR lead in this organisation and I have calculated the gratuity amount. After calculating we have checked with our Advocate as well. Sir the company is a small company with a team size of 65 employees. We are discussing the above-mentioned notice with an advocate as well. I really apologise, you all are experts and no such intention to insult seniors. I am just sharing my queries for best advice. We have paid the gratuity amount for three of our ex-employees and today only we received email and notice letter in word format through email.

I am so sorry, will not share any queries.

Thanks & Regards



Guest (Querist)
27 September 2017

Dear Sir,

The above case is a genuine one and not the fabricated story sir. We are Nagpur based small IT company and Mr. Imran Khan worked with us for 7 years 7 month. Mr. C.V.Jagdale Advocate from Gondia Maharashtra issued a notice to us in word format in an email.

Respected Jigyasu sir, I really apologise.

Thanks & Reards




Guest (Expert)
27 September 2017

Had you stated facts appropriately, as did now, you could well have received better responses to your query.

Kumar Doab (Expert)
27 September 2017

You have posted:


In your 1st post that;


“We have paid a gratuity amount on the basis of (Basic Salary * Years * 15 / 26) as we did not have DA in our salary structure. Our company is a Pvt Ltd. Our ex-employee is asking nowto pay gartuity in below mention The amount for my Gratuity deposited in my account is 1,00,385 is not calculated correctly the Formula Used (Basic Salary * Years * 15 / 26) is not correct. As per the Gratuity Act 1972 The Formula Should be Basic+DA * Years * 15 / 26 if the DA is not applicable in the company then 120% of Basic is consider as a DA. As per my knowledge The Gratuity amount should be (Basic + DA 120%)”


In your 2nd post that;


“Hi Sir, I have received the notice. Please have a look and suggest. Madam, Under instructions from my client Shri Imran Khan s/o Sultan Khan, R/o Kadar Zenda, Kamptee I have to serve upon you the following notice. 1] That, my client was working as a Senior Programmer in your Company since 2.11.2009 and he worked continuously without any break till 28.6.2017. After rendering 8 years, he submitted resignation with your company which was duly accepted and accordingly, on and from 28.6.2017 he has been relieved from your company. 2] That my client received an amount of gratuity to the tune of Rs. 69,909/- and the said gratuity has been calculated by your office on his last drawn salary Rs. 33,467/- and by taking into consideration the last drawn salary Rs. Rs. 33,467/- the amount of gratuity has been paid to my client as mentioned above. 3] That as per the provisions of the Gratuity Act which is applicable to all establishment, institution and others through out the India the gratuity has to be paid by taking into consideration the basic pay and dearness allowance. The gratuity has to be calculated as per the provisions of Gratuity Act and under the provision of Gratuity Act the calculation is basic pay + D.A. X 15X years of service and divided by 26. Now, the employees working are entitled for D.A. of 120 % and taking into consideration the 120 % of D.A. the gratuity ought to have been calculated as under : Basic Rs. 15,147/- D.A. Rs. 18,176/- --------------- Total Rs. 33,323/- --------------- 4] As per the aforesaid calculation as mentioned above, the amount of gratuity which ought to have been paid to my client comes to Rs. 1,53,798/-. On the contrary, my client has been paid Rs. 69,909/-. As such, my client received less gratuity of Rs. 83,889/-. In view of the aforesaid legal position I hereby called upon you to pay Rs. 83,889/- to my client with interest thereon on and from 1.7.2017 for delayed payment of gratuity as per provisions of Payment of Gratuity Act. Failing which my client shall be constrained to file appropriate proceeding against you in the Court of law and in that event you shall be liable for the cost and consequences. Please take the notice and do the needful. Notice charges Rs. 5,000/-“


In your 3rd post that;

“Dear Sir, I have paid the gratuity on the basis of Gratuity act and I don't believe the 120% to be added in DA”

Kumar Doab (Expert)
27 September 2017

As per your 1st post;
You did not have DA in your salary structure. The establishment has paid Rs. 1,00,385 and Ex. Employee has confirmed that this amount has been paid.

The lawyer of employee has posted different calculation from you.

Kumar Doab (Expert)
27 September 2017

Either figures in your post are wrong.
Or Ex. Employee is wrong.
Or Lawyer of Ex. employee is wrong.


Kumar Doab (Expert)
27 September 2017

The posts that have been posted by me in reference to your posts are correct.
As already posted, if you have already checked that DA is not applicable and your calculation is as per Formulae posted in previous posts and you have disbursed Gratuity in time (as already posted within 30days from LWD) then you should not have erred.

If you have paid late then pay interest @10%pa.
If you have paid more than correct calculation as already described, then you may ask to refund excess amount.
While asking for refund you may recheck if interest was applicable or not and you may appropriate it accordingly.
While asking for refund you may, if you want, double check if DA was applicable to establishment and employee or not.
If it is not applicable then DA is not be computed.
Accordingly you can reply to the legal notice of Vakil Sahib.

Kumar Doab (Expert)
27 September 2017

If you are not confident and/or you do not want to reply to legal notice, you may handover the case file to legal cell of your establishment, or a very able senior LOCAL counsel/Law firm of unshakable repute and integrity specializing in Labor/Service matters and having successful track record.

The very able senior LOCAL counsel/Law firm of unshakable repute and integrity specializing in Labor/Service matters and having successful track record, shall also be having notifications issued by authority on wages, DA applicable if any to your trade, establishment, and designation of employee, in your state.


If you have already consulted and engaged a counsel that has expertise in Labor/Service matters then you have saved yourself from fake entity IT=@PSD that operates from multiple fake ID’s.

You are not the 1st querist in all these years that has asked IT=@PSD, virtually; Daffa Ho!

You are welcome to post at LCI any time.
Whatever you are or be or any querist be, query can be posted at LCI.


Kumar Doab (Expert)
27 September 2017

On Gratuity: IT=@PSD a fake entity posting from multiple fake ID’s (many of which have been blackened/blacklisted/shunted out) i.e. 4th, 11th entity from top and also below your 2nd last post narrating Lawyer’s notice …………………… has been posted IT’s TRADEMARK TAMASHA, nuisance, abuse in this thread also…………………

has been professing that Gratuity is payable if employee has completed 5 calendar years of service…………………

---------and has been misleading, unsuspecting, ill informed querists.

SO IT=@PSD has been posting grossly wrong, diseased versions on Gratuity……………and was instructed to go back to IT’s teachers’ (if IT had any).

IT=@PSD has been taught with tutorials for years that IT’s 5 calendar years of service…is in IT’s own hallucinations and it is not necessary in Republic of India and may rather prevail in IT’s Tribe, Tribal badlands of Pakistan…………..
TO mask IT’s=@PSD’s own wrongdoings IT=@PSD litters IT’s TRADEMARK TAMASHA, nuisance, abuse in threads at LCI and more so threads on Gratuity…………………..instead of posting IT’s prayer for muafi (maafi).

IT’s=@PSD’s Nautanki in this thread is also to allure and fleece the unsuspecting querists.

The wise querist, her employer, establishment has already wisely engaged LOCAL counsel.


Kumar Doab (Expert)
27 September 2017

Dear LCI Admin,
Experts
Members
Readers,
IT=@PSD that operates from multiple fake ID’s and IT’s puppets (Chamchas) have been and are damaging LCI, for years.
These entities have NO concern for noble cause and social service that is the purpose of LCI.

IT=@PSD that operates from multiple fake ID’s and IT’s puppets (Chamchas) were never anything and anybody at LCI, Are Nothing and Nobody at LCI, will be Nothing and Nobody at LCI.
They are to GO away, Get lost.


Kumar Doab (Expert)
27 September 2017

Same Query:

http://www.lawyersclubindia.com/experts/Regarding-gartuity-notice-657051.asp

http://www.lawyersclubindia.com/experts/Regarding-gartuity-notice--657046.asp

Your query has been responded with detailed and correct reply.
You have wisely engaged your local Lawyer.

Your lawyer shall handle the matter.





Guest (Expert)
27 September 2017

@Kumar Doab,

You have been very late. The querist has already made an exit from the website on permanent basis.

However, in spite of LCI Admin's very clear instructions, to add value to each of your post, Mr. Kumar Doab HAS BEEN QUITE SUCCESSFUL IN MAKING 8 (totaling to 11) Absolutely VAGUE and HUGELY SPACE FILLING POSTS even after the querist has eloped from the site by getting her account deleted.

Yes, Mr. Doab, now he is your guest only through the LCI, as he has already gone from this site. by getting his account deleted, before you could enter in to the fray. If LCI Admin has allowed you so, you can make as many long posts as you can to convey your advice to him at your own home. Of course, may be falsely, that may strengthen your position at the Hall of Fame.

Best of luck!


Dhingra: 1962dcg@gmail.com (Expert)
Click to Talk
27 September 2017

@Kumar Doab,

What a joke on the part of Mr. Kumar Doab, when he alleges others with fake ID, when he, himself, is appears with his unreal name, fake ID, without his picture and even place of his location?

He has not yet posted correct information about him even after requests even through hundreds of earlier threads. Not only that in hundreds of cases, I myself has proved his advice as wrong, misleading and confusing, when he does not know even ABC of law.



Guest (Expert)
27 September 2017

Besides the above fact, posted by Mr. Dhingra, even after scores of my personal requests, Mr. Doab has not made clear even once, what exactly is his code, as "IT=@PSD"?

I have also noticed, he simply makes MULTIPLES of vague, confusing & misleading posts against each thread at the LCI.

BESIDES TAKING NOTE OF THE MISLEADING & WRONG ADVICE OF Mr. KUMAR DOAB, AS POINTED OUT BY Mr. Dhingra,the LCI ADMIN MAY ALSO LIKE TO TAKE A SERIOUS NOTE OF THIS FACT AFTER VERIFYING FROM HIS LAST SEVERAL POSTS.

EVEN ON THIS VERY QUERY HE HAS MADE 11 VAGUE AND CONFUSING POSTS, SO FAR. HE MAY ALSO MAKE MORE UNDUE WASTEFUL SPACE FILLING POSTS, IF HE IS NOT RESTRICTED FROM DOING SO.





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