Payment of gratuity
KHS
(Querist) 27 May 2016
This query is : Resolved
Sir,
I had served in a Registered Public Charitable NGO Hospital for 6.2 months (Apr.2010 to May, 2016). My age at the time of joining the service was 55 years and in view of advanced age factor, I was not offered PF, ESI facilities except allowing leave facility as is offered to other employees of the institution.
I shall be grateful for clarifying me as to whether I am eligible to claim Gratuity for the period of service rendered i.e. 6 years as per Gratuity Act, Andhra Pradesh, India.
Look forward to receiving your suitable reply that not only helps me to have invaluable financial support at this point of age but also pave the other employees rendered service in the institution for over last more than 1 1/2 decades.
Best regards,
KSMurthy
khsindhukalyani@gmail.com
Kumar Doab
(Expert) 27 May 2016
There seems to some error.
You have worked for only 6.2 months or 6.2 years?
55 Years of age is no bar for PF,ESIC,Gratuity.
Was the relation clearly that of employer-employee?
If yes you should be eligible.
You may pursue:
Payment of Gratuity Act, 1972
AP payment of Gratuity Rules
Kumar Doab
(Expert) 27 May 2016
The author needs to revert back to the points raised.
AP payment of Gratuity Rules,1972 does cover Application of Act to Trusts and Societies:
http://labour.ap.gov.in/documents/APPaymentofGratuityRules1972.pdf
Kumar Doab
(Expert) 29 May 2016
Submit FormI under proper acknowledgment.
Mention that employer has not supplied the 'Notice of Determination of Gratuity' and Payment till date.
If employer does not pay within 30days from LWD you shall be entitled for interest @10%pa
Kumar Doab
(Expert) 29 May 2016
NO need to submit any legal notice so far.
Kumar Doab
(Expert) 30 May 2016
Another thread at:
http://www.lawyersclubindia.com/experts/Payment-of-gratuity-601256.asp
Kumar Doab
(Expert) 30 May 2016
This is your original thread and pls post here.
Don;'t initiate a new thread for each time you want to post something.
It has already been posted that:
"Submit FormI under proper acknowledgment.
Mention in a gentle manner, that employer has not supplied the 'Notice of Determination of Gratuity' and Payment till date.
NO need to submit any legal notice so far.
"
The link to:AP payment of Gratuity Rules,1972, has already been posted.
AP payment of Gratuity Rules,1972 does cover Application of Act to Trusts and Societies:
http://labour.ap.gov.in/documents/APPaymentofGratuityRules1972.pdf
Hope this shall suffice for the time being.
Remain amiable and gentle while dealing with employer.
Kumar Doab
(Expert) 30 May 2016
Other thread on Charitable Hospitals:
http://www.lawyersclubindia.com/experts/My-friend-working-in-hospital-600561.asp
http://www.lawyersclubindia.com/experts/Service-rule-600346.asp
You may go thru these.
Kumar Doab
(Expert) 30 May 2016
The existence of employer-employee, master-servant relationship should decide such issues and not the constitution of the establishment. If any charitable institution employs a worker it should be under the purview of labor laws!
>>> Is some kinds of manufacturing or trading activities being carried out, for profits? Investigate and prove.Once you have the proof share and let Inspectors appointed under PF/Gratuity/ESIC Act include these in their reports.
A seasoned local counsel can advise you further.Better proceed under expert advise of an able counsel.
KHS
(Querist) 31 May 2016
Sir,
Brief activities for ready reference:
The Institute provides training by offering long & short term fellowship programs in all the sub specialities and has been recognised for DNB (Post graduation) & B.Sc. (Optometry) by IGNOU, SICS & Phaco training sponsored by NPCB, New Delhi.
Since 2010, the institution entered into Ophthalmology educational programmes i.e.B.Sc.(HOT)IGNOU, Long-term fellowship training for PG Students and DNB Ophthalmology course (Diplomate of National Board) for PG Students from Jan. 2012. NBE has granted One Primary & One Secondary admission every year against payment of Rs.80,000/- every year during the training period. The Foundation is also offering International Fellowships in Ophthalmology Sub-Specialties against cash payment.
Regards,
KS Murthy
Kumar Doab
(Expert) 31 May 2016
>>> The following has already been posted, above and for your ready reference is reproduced as belwo:
"The link to:AP payment of Gratuity Rules,1972, has already been posted.
AP payment of Gratuity Rules,1972 does cover Application of Act to Trusts and Societies:
http://labour.ap.gov.in/documents/APPaymentofGratuityRules1972.pdf"
At page;130 it is mentioned; Application of Act to Trusts and Societies........
What is this hospital registered as;
Trusts and Societies?
If yes it is covered by the Act.
You need to confirm on the above!
Kumar Doab
(Expert) 31 May 2016
>>> Apparently you are hinting that:
---Some trading/profit making activities are going in so called 'Registered Public Charitable NGO Hospital' where you are employed.
It is not charitable organisation by all means without having any business interests.
---The word charitable is added just to get exemption from labor Laws, and benefit of exemption from coverage of ESI, EPF, Gratuity, Bonus or Payment of Minimum wages etc.
If that is so you may generate evidence and lift the veil.
>>> You need to confirm that ist is not Public Religious Institution administered under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act................
>>> You may note that even in case of Tirumala Tirupathi Devasthanam, (employees of the Devasthanam are governed by the rules framed under the Hindu Religious and Charitable Endowments Act ) .............the learned courts have made observations e.g;
32..............But finding that the Transport Department is an industry has become final and has not been questioned by the Tirumala Tirupathi Devasthanam..........
33. For the reasons stated above, we are of the view that the electricity and water departments of the Tirumala Tirupathi Devasthanam will be an industry or analogous to an industry and the employees in those departments would be workmen within the meaning of the Trade Unions Act, and they will be entitled to register themselves as a Trade Union.
34. ............. we have already held that the Devasthanam taken as a whole cannot be regarded as industry and it would not be permissible to allow all the employees generally to form into as an union and get themselves registered as a trade union. It is not necessary for us to consider the question whether the members of the union who are employees of any other department or units can register themselves as union as that would depend on the question whether a department falls within the definition of the industry, in the light of the decisions of the Supreme Court.
Andhra High Court
Tirumala Tirupati Devasthanam vs Commissioner Of Labour on 26 July, 1977
https://indiankanoon.org/doc/234163/
Kumar Doab
(Expert) 31 May 2016
Charitable and Spiritual Institutions might be altogether different, for the purpose of availing exemptions under law of the land.
PF; The exemption might be possible for charitable institutions which do not generate any income by some business activity or collection of fees or other charges etc..............e.g; temples, churches, ......places of public worships.
However other charitable institutions that run colleges, schools or hospitals may not be Charitable for the purpose of PF exemption........................
It is in lighter vein that the suitable word for them might be Choritable.
In your case there seems to systematic activity, with the cooperation between employer and employee, and collection of fee etc and hence it might be covered as industry!
Such establishment may come under purview for PF coverage.
The Central Government has withdrawn the exemption vide its notification also that can be accessed at:
file:///C:/Users/Login/Downloads/PF%20EXEMPTION%20TO%20TRUST.pdf
Further you may check with RPFC in jurisdictional PF offcie and your state's Addl CPFC.
>>> ESIC; Likewise you may check for ESIC from nearest ESIC office.
Kumar Doab
(Expert) 31 May 2016
Charitable trusts like yours also might be covered as "industry" as defined under the Industrial Disputes Act 1947 and as interpreted the Apex Court:
Supreme Court of India
Bangalore Water-Supply & ... vs R. Rajappa & Others on 21 February, 1978
https://indiankanoon.org/doc/1149369/
“1. The term "analogous to the trade or business" could not
cut down the scope of the term "industry". The said words
can reasonably mean only activity which results in goods
made and manufactured or service rendered which are capable
of being converted into saleable ones. They must be capable
of entering the world of "res commercium", although they may
be kept out of the market for some reason. It is not the
motive of an activity in making goods or running a service
but the possibility of making them marketable if one who
makes goods or renders service so desires, that should
determine whether the activity lies within the domain or
circle of industry. But even this may not be always a
satisfactory test. By this test the type of services which
are rendered purely for the satisfaction of spiritual or
psychological urges of persons rendering those services
would be excluded. Whenever an industrial dispute would
arise between either employers and their workmen or between
workmen and workmen, it should be considered an area within
the sphere of "industry" but not otherwise. In other words,
the nature of the activity will be determined by the
conditions which give rise to the likelihood of the occur-
rence of such disputes and their actual occurrence in the
sphere.”
“ORDER We are in respectful agreement with the view expressed by Krishna Iyer, J. in his critical judgment that the Bangalore Water Supply and Sewerage Board appeal should be dismissed.”………………………
“ we are of the view that despite the width of the definition it could not be the intention of the Legislature that categories 2 and 3 of the charities alluded to by our learned brother Krishna Iyer in his judgment, hospital run on charitable basis or as a part of the functions of the Government or local bodies like municipalities and educational and research institutions (1) [1960] 2 S.C.R. 866.
whether run by private entities or by Government and liberal and learned professions like that of doctors, lawyers and teachers, the pursuit of which is dependent upon an individual's own education, intellectual attainments and special expertise should fall within the pale of the definition. “
“It may be pertinent to mention in this connection that the need for excluding some callings, services and undertakings from the purview of the aforesaid definition has been felt and recognised by this Court from time to time while explaining the scope of the definition of "industry". This is evident from the observations made by this Court in State of Bombay & Ors. v. The Hospital Mazdoor Sabha & Ors. (supra), Secretary, Madras Gymkhana Club Employees Union v. 'Management of the Gymkhana Club(1) and Management of Safdarjung Hospital, New Delhi V. Kuldip Singh Sethi (2). Speaking for the Bench in State of Bombay & Ors. v. The Hospital Mazdoor Sabha & Ors. (supra), Gajendragadkar, J. (as he then was) observed in this connection thus :”
“"It is clear, however, that though s. 2(j) uses words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning, all services and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the word "service" is intended to include service however rendered in whatsoever capacity and for whatsoever reason. We must, therefore, consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in s. 2(j); and that no doubt is a somewhat difficult problem to decide."’
Kumar Doab
(Expert) 31 May 2016
>>> Gratuity:
THE PAYMENT OF GRATUITY ACT, 1972
https://mahakamgar.maharashtra.gov.in/images/pdf/payment-of-gratuity-act-1972.pdf
Section: 1:. Short title, extent, application and commencement.-
(3):
(b): every shop or establishment within the meaning of any law for
the time being in force in relation to shops and establishments in
a State, in which ten or more persons are employed, or were
employed, on any day of the preceding twelve months;
(c) such other establishments or class of establishments, in which
ten or more employees are employed, or were employed, on any
day of the preceding twelve months, as the Central Government
may, by notification, specify in this behalf.
>>> SHOPS AND ESTABLISHMENT ACT
is a state enactment.
>>> ANDHRA PRADESH SHOPS AND ESTABLISHMENTS ACT, 1988
2. Definitions :- (5) commercial establishment means an establishment which carries on any trade, business, profession or any work in connection with or incidental or ancilliary to any such trade, business or profession or which is a clerical department of a factory or an industrial undertaking or which is a commercial or trading or banking or insurance establishment and includes an establishment under the management and control of a co operative society, an establishment of a factory or an industrial undertaking which falls outside the scope of the Factories Act, 1948, (Central Act 63 of 1948), and such other establishment as the Government may, by notification declare to be a commercial establishment for the purposes of this Act but does not include a shop;
(10) establishment means a shop, restaurant, eating house, residential hotel, lodging house, theatre or any place of public amusement or entertainment and includes a commercial establishment and such other establishment as the Government may, by notification, declare to be an establishment for the purpose of this Act;
Kumar Doab
(Expert) 31 May 2016
You may carefully go thru:
Bombay High Court
Secretary Shri Harihar vs State Of Maharashtra on 18 June, 2010
https://indiankanoon.org/doc/1234129/
5....................On consideration of the definition of "Commercial establishment", which wp2593.09.odt 5 / 9 itself can be considered as an establishment within the meaning of sub-section (8) of Section 2 and the establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession whether it is charitable or otherwise and conducted by the society registered under the Societies Registration Act and a charitable or other establishment can be brought within the fold of "Commercial Establishment". "Commercial establishment" is an 'establishment' within the meaning of sub section (8) of Section 2 of the Act.
6. It is urged by the learned Counsel appearing for respondent No. 4 that the establishment carried by the societies or trust whether registered or not whether charitable in nature which carries on business whether for purposes of gain or not, can be brought within the fold of definition of "establishment" and as such is amenable to the coverage as contemplated by the provisions of Payment of Gratuity Act.
................he Division Bench of this Court, placing reliance on the decision of the Apex Court in 1959-II-LLJ-397, has observed thus;
".....In our opinion, the decision of the Supreme Court in 1959-II- LLJ-397 lends support to Mr. Apte's contention that an educational 'establishment' is an establishment under the provisions of the Establishments Act. In this view of the matter, we cannot accede to the submission of Mr. Bukhari that the 1st Respondent-School is not an 'establishment' as contemplated by the said Act..".............
It is also observed in the judgment that; the legislature has also chosen not to define 'establishment' but in order to give a widest possible meaning it has provided for reference to any law for the time being in force in relation to the Shops and Establishments in a State. ..............
7. Similar view has been taken in respect of a non commercial society/charitable organization, namely: Indian Red-Cross Society in a matter between Indian Red-Cross Society and Vidyaben H. Vyas reported in 2004 I CLR
It is held by the Madhya Pradesh High Court that the commercial establishment defined in Section 24 of the M. P. Shops and Establishments Act, 1958 includes a society registered under the M. P. Societies Registration Act, 1959 and as such it is amenable to the provisions of Payment of Gratuity Act. Similar view is adopted by the Andhra Pradesh High Court in the matter of Rula Krishi Kendra Vs. The Controlling Authority under the Payment of Gratuity Act, Ranga Reddy Distt. & others reported in 1990-II-CLR-323. The Apex Court, in the matter of Jotindra Nath Roy and Surendra Bikaram Singh Agrawal & others reported in 1996(73)-
FLR-1394 has held that the provisions of Employees' Provident Funds and Family Pension Rules, 1952 be made applicable to the Trust Estate of Babu Lal Agarwal in relation to employees of the said Trust being an establishment under the Said Act.
It was therefore held that as the Trust has been treated to be an establishment, the provisions of Payment of Gratuity Act would be attracted and the employee employed by the Trust would be entitled to claim benefit under the said Act.
8. The Counsel appearing for the petitioner has strongly contended that the Central Government has issued notification only on 20/8/1997 in exercise of wp2593.09.odt 8 / 9 powers conferred by Clause (c) of sub-section (3) of Section 1 of the Payment of Gratuity Act, 1972 and has brought the trust or societies, registered under the Societies Registration Act, 1860, or under any other law with respect to societies for the time being in force in any State, in which ten or more persons are employed or were employed within the fold of applicability of the provisions of the Payment of Gratuity Act. It is thus contended that as the coverage is extended by bringing the notification on 20/8/1997, the provisions of the Act can be made applicable only after issuance of notification by the Central Government.
The petitioner-institution is a Trust registered under the Bombay Public Trust Act and the same is society registered under the provisions of Societies Registration Act. The provisions of clauses (b) and (c) of sub-section (3) of Section 1 of the Payment of Gratuity Act, 1972 are required to be read in harmonious manner and by virtue of clause (b) of sub-section (3) of section 1, every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, is brought within the scope of applicability of the Act.
Clause (c) applies to such other establishment or class of establishments which are brought within the fold of applicability of Act on issuance of notification by the Central Government. On perusal of clauses (b) and
(c) of sub-section (3) of Section 1 of the Act, 1972, it is clear that provisions of clause (c)............... """"""""will not obviously apply in the instant matter"""""""................. as the petitioner is an establishment within the meaning of sub section (8) of section 1 of the Act, 1948 wp2593.09.odt 9 / 9 and as such is brought within the scope of applicability of the Act. The issuance of notification by the Central Government at a later point of time has no consequence.
.............................The notification issued by the Central Government would extend the coverage of provisions of Payment of Gratuity Act to the establishment or the societies or the Trust which do not come within the purview of clause (b) of sub section (3) of Section 1 of the Act. ....................
Kumar Doab
(Expert) 31 May 2016
Having understood the interpretation and assertions in above mentioned judgment of:
Bombay High Court
Secretary Shri Harihar vs State Of Maharashtra on 18 June, 2010
https://indiankanoon.org/doc/1234129/
You may carefully go thru:
Madras High Court
Csi Mission Hospitals vs The Appellate Authority Under The on 10 February, 2011
https://indiankanoon.org/doc/1267183/
The petitioner in all the three Writ Petitions is the CSI Mission Hospitals, Dharapuram. They have challenged the orders passed by the 1st respondent, the appellate authority under the Payment of Gratuity Act, 1972 made in AGA Nos.39, 37 and 38 of 2002 respectively.
5...................For the first time before the appellate authority, an additional ground was raised, namely that the petitioner is a 'charitable trust' and therefore it cannot be held to be an establishment coming within the meaning of Section 2(f) of the Payment of Gratuity Act, 1972. Mere fact that the CSI Mission Hospital has decided to have a scheme for gratuity will not make them liable to pay gratuity under the Act.
6...................he appellate authority however by his order dated 25.8.2003 rejected their contention. The authority held that the Act applies to all establishments covered under Section 1(3)(b) of the Payment of Gratuity Act and the reference made to Section 2(f) is a misnomer where the term 'employer' was also defined..............
7. After the Writ Petition was filed, the petitioner also filed an additional typed set containing a Certificate issued by the Income Tax Department dated 29.5.1992 to the effect that Church of South India Trust Association is a charitable Trust (CSITA) and consists of 20 Dioceses and 4 institutions. Under them, there are the various units, which include hospitals, schools, colleges, homes run by them under the respective jurisdiction. They were declared to be a charitable and non-profit making organisation registered under Section 25 of the Companies Act.
8. Therefore, the only question that arises for consideration is whether the petitioner establishment being a charitable trust is exempted under the provisions of Payment of Gratuity Act?
9. Under Section 1(3)(a) of Payment of Gratuity Act, 1972, the Act applies to every factory, mine, oil field, plantation, port and railway company. Under Section 1(3)(b), the Act applies to every shop or establishment within the meaning of any law for the time being in force in relation to shops. Under Section 1(3)(c), if any establishment wherein ten or more persons are employed, if notified by the Central Government, then to such establishments, the Act applies.
10. The Supreme Court while interpreting Section 1(3)(b) of Payment of Gratuity Act, 1972 in State of Punjab vs. Labour Court, Jullundur and others reported in 1980 (1) SCC 4, has held that the term "law" found under the Section not only relate to shops and establishments but also applies to every establishment within the meaning of any law for the time being in force in relation to establishments in a State.
11. A Division Bench of this Court in the case of the Management of SIET Women's College, Madras vs. Mohamed Ibrahim and others reported in 1992 (1) LLJ 91 has held that in relation to a private College run by a minority institution, since the Provident Fund Act applies to it, it is also an establishment covered by Section 1(3)(b) of the Payment of Gratuity act.
12. Apart from the wider definition of an establishment provided under Section 1(3)(b) of the Act, the Central Government has also power to notify other establishments under Section 1(3)(c) of the Act. The Central Government by a statutory order No.2218 dated 22.8.1997 under Sec.1(3)(c) of the Payment of Gratuity Act had issued the following notification:
"S.O.2218. In exercise of the powers conferred by clause ) of sub-section (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specifies the trusts or societies, registered under the Societies Registrtion Act, 1860 (21 of 1860) or under any other law with respect of societies for the time being in force in any State, in which ten or more persons are employed or were employed for wages on any day of the preceding 12 months as a class of establishmetns to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette."
13. The contention that a particular institution is a charitable institution is not relevant for the purpose of determining the coverage under the Act. The Act applies only if any Institution is covered by the provisions of the Act, notwithstanding the nature of activities or the philanthropical services rendered by them.
14. It must be noted that the Supreme Court vide its judgment in Christian Medical College Hospital Employees Union vs. Christian Medical College, Vellore reported in AIR 1988 SC 37 has held that "those rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management."
15. It was also held by a learned Judge of this Court in Management of Good Samaritan Rural Development Project vs. T.A.Ramaiah and others reported in (2003) 1 LLN 378 that even charitable institutions are covered by the provisions of the Act.
16. In view of the above, no fault can be found with the order passed by the appellate authority. Hence all the three Writ Petitions will stand dismissed. No costs. The connected Miscellaneous Petitions are closed. In view of the dismissal of the Writ Petitions, the contesting respondents are entitled to withdraw the amounts lying in deposit with the 2nd respondent.
Kumar Doab
(Expert) 31 May 2016
Having understood the interpretation and assertions in above mentioned judgment of:
Bombay High Court
Secretary Shri Harihar vs State Of Maharashtra on 18 June, 2010
https://indiankanoon.org/doc/1234129/
And
Madras High Court
Csi Mission Hospitals vs The Appellate Authority Under The on 10 February, 2011
https://indiankanoon.org/doc/1267183/
You may also go thru the following in which plethora of decisions/judgments involving establishments, missions, trusts etc have been dwelled upon :
MADRAS HIGH COURT
Before :- S. Manikumar, J.
W. P. Nos. 29279 and 29280 of 2013. D/d. 29.11.2013.
Management of Chevalier T. Thomas Educational Trust, Chennai - Petitioner
Versus
The Secretary, State of Tamil Nadu and others - Respondent
4. Before the Controlling Authority, the petitioner-Management has raised a preliminary objection, regarding maintainability of the applications, in terms of the provisions under Section 1(3) of the Payment of Gratuity Act, 1972. According to them, the Management is a public charitable trust and running unaided educational institutions. Therefore, it has been contended that it is not an establishment falling within the purview of Section 1(3) of the Payment of Gratuity Act.
11. From the pleadings, it could be deduced that the Trust is running the following institutions, viz.,
(i) St. Mary's Mat. Boys Hr. Sec. School, Perambur, Chennai-11.
(ii) St. Mary's Mat. Girls Hr. Sec. School, Perambur, Chennai-11.
(iii) St. Mary's Mat. Hr. Sec. School, Redhills, Chennai-52.
(iv) St. Mary's Nursery and Primary School, Kodungaiyur, Chennai-118.
(v) Marian Senior Secondary School, Kalathipadi, Kottayam-10.
(vi) C.T.T.E. College for Women, Perambur, Chennai-11.
12. The main contentions of the petitioner are that,
(i) the petitioner-trust is a charitable trust, established and created for educational purpose to serve the poor and needy children.
(ii) It is not an establishment or a business organisation and hence, Payment of Gratuity Act, cannot be made applicable to them.
(iii) The 3rd respondent in both the writ petitions were employed only on contractual basis and their services were periodically renewed by the then Management.
(iv) The Management is running a trust, pursuant to the scheme framed in O.S.A.No. 49 of 1995.
(v) The Trust has introduced several schemes for the benefit of its employees and also protect the interest of its employees.
Apart from the abovesaid contentions, the petitioner has inter alia contended that the Trust would not fall within the ambit of "establishment" and thus, the provisions of Payment of Gratuity Act, are not applicable to the third respondent in both the cases.
5. The petitioner-Management has further contended that the Trust is governed by a elected Board of Trustees and that the Trust is administered, as per the Scheme, approved by this Court in O.S.A.No. 49 of 1995, dated 05.12.2002. It has also been contended that the pension scheme was allowed to the staff members, who joined the schools under the Management of Chevalier T.Thomas Trust, up to 1997-98, by Board's resolution, dated 08.03.2003. The Management has provided the best suitable payment benefits to the staff from the date of appointment.
13. From the materials on record, it could be seen that the Trust has filed an application, under Section 5 of the Payment of Gratuity Act, 1972, seeking for exemption from the provisions of the Payment of Gratuity Act. In the said application filed before the Secretary to the Government, Labour and Employment Department, Secretariat, Chennai-9, the Trust has contended that the abovesaid educational institutions do not fall under any category of business organisation or establishment or a factory, mine, oil field, plantation, port, railway company or shop, to which alone, the Payment of Gratuity Act, would apply. Before the Government, the petitioner-Trust has also contended that even Section 5 of the Act, does not contemplate that in the event of establishment or organisation, providing any other beneficial or welfare schemes, for the benefit of its employees, they are exempted from the provisions of the Payment of Gratuity Act.
68. Section 5 deals with the power of the appropriate Government from exempting any employee or class of employees employed in any establishment, factory, mine, etc., and the said Section is extracted hereunder:
"5. Power to exempt. - (1) The appropriate Government may, by notification, and subject to such conditions as may be specified in the notification, exempt any establishment, factory, mine, oilfield, plantation, port, railway, company or shop to which this Act applies from the operation of the provisions of this Act if, in the opinion of the appropriate Government, the employees in such establishment, factory, mine, oilfield, plantation, port, railway, company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.
69. As per Section 14, the provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.
70. Only after passing of the orders by the Controlling Authority, under the Payment of Gratuity Act, in P.G.Nos. 53 and 54 of 2008, respectively, the petitioner-Trust has filed an application, under Section 5 of the Payment of Gratuity Act, 1972, seeking for exemption from the provisions of the Payment of Gratuity Act. It is also to be noticed that the mere fact that the petitioner-Trust has applied for exemption, is an implied admission on the part of the Trust that the provisions of Payment of Gratuity Act are applicable to its employees or class of employee employed in the educational institutions run by the Trust and if only the Trust is able to establish that the benefits given by them, are not less favourable under the benefits conferred under the Payment of Gratuity Act, 1972, the appropriate Government may issue a notification and therefore, till the Government forms an opinion in the matter, the provisions of the Payment of Gratuity Act, would be applicable to the petitioner-Trust. As the applicability of the provisions of the Payment of Gratuity Act, to the institutions, run by the Trust, is the only argument advanced before this Court, the same is answered against the Trust in W.P.Nos. 3907 to 3909 of 2004, dated 10.02.2011 (CSI Mission Hospital v. Appellate Authority, under the Payment of Gratuity Act), wherein, this Court held as follows :
"8. Therefore, the only question that arises for consideration is whether the petitioner establishment being a charitable trust is exempted under the provisions of Payment of Gratuity Act?
14. It must be noted that the Supreme Court vide its judgment in Christian Medical College Hospital Employees Union v. Christian Medical College, Vellore, reported in AIR 1988 SC 37 has held that "those rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management."
15. It was also held by a learned Judge of this Court in Management of Good Samaritan Rural Development Project v. T.A.Ramaiah and others reported in (2003) 1 LLN 378 : (2003 Lab IC (NOC) 29) that even charitable institutions are covered by the provisions of the Act.
16. In view of the above, no fault can be found with the order passed by the appellate authority. Hence all the three Writ Petitions will stand dismissed"
71. In the light of the decisions and discussion, this Court is of the view that there is no manifest illegality in the impugned orders, in both the writ petitions, warranting interference. The status of the 3rd respondent in both the writ petitions has not been seriously disputed.
SAINATH DEVALLA
(Expert) 31 May 2016
NGOs BE TREATED AS INDUSTRIES FOR EMPLOYEE BENEFITS
NGOs be treated as industries for employee benefits: Madras HC 1 Jun 2009 CHENNAI: Can a non-governmental organisation (NGO) be labelled as an `industry'? And, will an NGO employee come under the definition of `workman', so that he could avail himself of the benefits of the Industrial Disputes Act? `Yes', the Madras High Court has said categorically. Merely because an NGO, which is registered as a society, is run with the aid of the government it will not be exempted from the definition of `industry,' a division bench of Justice P Jyothimani and Justice Aruna Jagadeesan ruled. Passing orders on two writ appeals -- one filed by S Thilagavathi and another by Madurai Children's Aid Society, where she worked as assistant matron before being dismissed from service -- the judges said: "We have no difficulty to hold that the children's society is an `industry' within the meaning of Industrial Disputes Act.' Thilagavathi, who was receiving a monthly salary of Rs 27, was terminated from service in 1990 for `misconduct and misbehaviour'. She raised an industrial dispute against the children's society claiming that the NGO was an industry within the meaning of the ID Act. After one full round of litigation in the Madras high court, the industrial tribunal was directed to hear her case. In 1999 the labour court held that the NGO was a children's society. Though it ordered Thilagavathi's reinstatement, it did not award her the entire backwages. The present appeals were preferred by both Thilagavathi, who demanded backwages, and the children's society, which claimed that it was not an industry. The judges, analysing the nature of works allocated to an assistant matron in the NGO, said her works were supervisory in nature and hence covered by the definition of a `workman'. In this regard, they pointed out that she was distributing food, uniform and medicine to beneficiaries, supervised cooking and maintenance works, and maintained registers kept at the observation home. Upholding the tribunal's reasoning that the punishment meted out to Thilagavathi was disproportionate to the charges levelled against her, the judges ordered her reinstatement but refused to direct the NGO to pay her the entire backwages.
SAINATH DEVALLA
(Expert) 31 May 2016
There is a difference between permanent employees and contract employees working for NGO's.
The contract employees are not eligible for gratuity benefits as per SC ruling.
SAINATH DEVALLA
(Expert) 31 May 2016
Contract employees can't avail gratuity: SC
NEW DELHI: The Supreme Court has ruled that the workmen cannot have the liberty to avail both the benefial aspects of the Payment of Gratuity Act and the contract of their employment, giving a set back to the employees.
They have to choose either of them. A bench comprising Justices S B Sinha and Dalveer Bhandari said, " while interpreting even a benefial part of the statue like, Payment of Gratuity Act, we are of the opinion that either contract has to be given effect to or the statue". The apex court bench has set aside the order passed by the Deputy Commissioner of Labour which was affirmed by the Bombay high court.
The Supreme Court has allowed the appeal of Beed District Central Co-Operative Bank Ltd. which had its own gratuity scheme which was a part of its terms of contract. According to that the rate of gratuity was determined at 26 days' wage for every completed year of service with maximum amount of Rs. 2.5 lakhs.
However, according to the Payment of Gratuity Act, 1972 the rate of Gratuity was determined at the rate of 15 days' salary for every completed year of service with ceiling of amount Rs. 2.5 lakhs which was later raised to 3.5 lakhs by an amendment in 1998. It was given a retrospective effect from Sep. 1997.
Some retired workmen of the Bank claimed that they were entitled to the benefits of both the scheme as also the ceiling fixed under 1998 Act. Turning down their claim, the court said that in event the amount is calcualted at the rate of 26 days' salary for every completed year of service, vis-a-vis 15 days' salary thereof, the tenure of an employee similary situate will vary.
Dr J C Vashista
(Expert) 01 June 2016
Very well explained in detail and advised by experts, I appreciate and agree,nothing left to add.
Kumar Doab
(Expert) 01 June 2016
Thanks to all companions, experts and seniors that have posted in the thread and by PM.
The learned experts are thorough gentlemen and have always responded.
The author and his peers may submit gentle communication and FormI to employer of course under proper acknowledgment.
SAINATH DEVALLA
(Expert) 01 June 2016
Right conclusion given Mr Kumar Doab.
Kumar Doab
(Expert) 01 June 2016
Very senior and learned Labor Law-Service matters expert whom I admire for his expertise and for being a good hearted and a reasonable man has commented that;
"In Maharashtra the Payment of gratuity Act is applicable to establishments having >10 employees.Therefore The act is applicable.It is immeterial whether the hospital is trust or cheritable.I am not sure about Andhra provisions. even if the querist was more than 55 years, still the ESI, PF etc."
I feel that one should read between the lines, more so when the comment is received from a senior expert that is what you aptly call as 'Master of the subject'.
Hence the following is being posted;
Shops and Establishments Act is state enactment, however the purpose and intent is same as envisaged while laying down the Act.
The Shops and Establishments Act of Maharashtra and Andhra Pradesh be looked into since the judgments from both the states are posted and the Senior expert has posted pointers..............
>>> The Bombay Shops and Establishments Act, 1948
BOMBAY ACT NO. LXXIX OF 1948
https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/94257/110577/F479460477/IND94257.pdf
2. Definitions.-: "(4) "Commercial establishment" means an establishment which carries on, any
business, trade or profession or any work in connection with, or incidental or
ancillary to, any business, trade or profession ^and includes establishment of any
legal practitioner, medical practitioner, architect, engineer, accountant, tax
consultant or any other technical or professional consultant and also includes] a
society registered under the Societies Registration Act, 1866 (XXI of 1860), and
a charitable or other trust, whether registered or not, which carries on 9
[whether
for purposes of gain or not] any business, trade or profession or work in
connection with or incidental or ancillary thereto but does not include a factory,
shop, residential hotel, restaurant, eating house, theatre or other place of public
amusement or entertainment"
The idea of premises is not implicit in the definition of,
"Commercial establishment".
The organisation to be a commercial establishment must not only be an
organised activity for carrying on any business, trade or profession but the
activity must be carried in a commercial manner. If these two conditions are
satisfied it is wholly irrelevant that such an activity of which there is an employer
and in which there are employees will be a commercial establishment only
because it has no particular premises from which it operates
Commercial establishment is not only an establishment which carries on trade
but also business, whether for the purpose of gain or not. The profit or intention
to make profit is not an essential part of the legal definition of trade or business.
Business includes trade. The occupation followed by the applicant can well come
within the purview of the word "business" as well as "trade" and the applicant's
premises is a "commercial establishment" as defined in section 2(4) (1971) II LLJ
31 (Bom.H.C.)
The correct test of finding whether a professional activity falls within the definition
2(4) of the AeJ. is whether the activity is systematically and habitually undertaken
for production or distribution of goods or for rendering material services to the
community with the help of employees m
>>> ANDHRA PRADESH SHOPS AND ESTABLISHMENTS ACT, 1988
2. Definitions :- (5) commercial establishment means an establishment which carries on any trade, business, profession or any work in connection with or incidental or ancilliary to any such trade, business or profession or which is a clerical department of a factory or an industrial undertaking or which is a commercial or trading or banking or insurance establishment and includes an establishment under the management and control of a co operative society, an establishment of a factory or an industrial undertaking which falls outside the scope of the Factories Act, 1948, (Central Act 63 of 1948), and such other establishment as the Government may, by notification declare to be a commercial establishment for the purposes of this Act but does not include a shop;
(10) establishment means a shop, restaurant, eating house, residential hotel, lodging house, theatre or any place of public amusement or entertainment and includes a commercial establishment and such other establishment as the Government may, by notification, declare to be an establishment for the purpose of this Act;
THE The Bombay Shops and Establishments Act IS EXPLICIT.................AND MENTIONS Societies Registration Act, and
a charitable or other trust........AND LAYS DOWN
" a society registered under the Societies Registration Act, 1866 (XXI of 1860), and
a charitable or other trust, whether registered or not, which carries on 9
[whether
for purposes of gain or not] "
WHILE ANDHRA PRADESH SHOPS AND ESTABLISHMENTS ACT IS NOT EXPLICIT TO THAT EXTENT, HOWEVER THE JUDGMENTS MENTIONED ABOVE SHOULD COVER THIS ASPECT AS WELL.
Kumar Doab
(Expert) 01 June 2016
Another illustrious judgment may be gone thru;
High Court Of Madras
Decided on September 17,2012
E.GOPAL Appellant
VERSUS
ARULMIGU DHANDAYUTHAPANISWAMY TEMPLE,PALANI Respondents
http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=212102741400
http://www.legaleye.co.in/index.php/high-courts-full-large-bench/madras-high-court/880-e-gopal-versus-arulmigu-dhandayuthapaniswamy-temple-palani-2-the-appellate-authority-under-payment-of-gratuity-act-joint-commissioner-of-labour
( 1. ) LEARNED Division Bench has raised some doubt regarding the applicability of the ratio of a Division Bench decision of the Madras High Court in Tiruchendur Arulmigu Subramaniasamy Kovil Oivupetra Paniyalargal Sangam v. Executive Officer, Arulmigu Subramaniasamy Devasthanam, Tiruchendur, W.A. No.2626 of 2002, dated 2.9.2008, in the light of the law laid down by the Honourable Supreme Court in State of Punjab v. Labour Court, Jullundur.....................We are of the opinion that the matter should be heard and decided by a Larger Bench. Thereafter, the present Full Bench has been constituted by the Honourable the Chief Justice." ............
( 2. ) ( 2. ) THE precise question to be answered is whether a "Religious Institution/Temple" will come within the purview of Section 1(3) of the Payment of Gratuity Act in the light of the law laid down by the Honourable Supreme Court in State of Punjab v. Labour Court, Jullundur, 1980 (1) SCC 4 : 1981 (1) LLJ 354. If this question is decided, the other related questions relating to applicability of Article 254(2) of the Constitution and whether the provisions of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 in respect of payment of gratuity is repugnant to the provisions of the Payment of Gratuity Act, 1972, can be answered............
3.1. The Payment of Gratuity Act, 1972 (39 of 1972) came into force on 16th September, 1972. In order to ensure uniform pattern of Payment of Gratuity to the employees throughout the country and to avoid different treatment to the employees of establishments, the Legislature thought it fit to enact a Central Law on the subject and that is how the Payment of Gratuity Act, 1972 came into existence. 3.2. The Statement of Objects and Reasons for enacting the Act was to provide for a Scheme for the Payment of Gratuity to employees engaged in factories, mines, oilfields, plantations, ports, Railway Companies, shops or other establishments and for matters connected therewith or incidental thereto. The Payment of Gratuity is a kind of retiral benefit like pension, provident fund, etc., and it is a gift, especially for services rendered or return for favours received. One should not forget that for the wage-earning population, when the worker becomes old or infirm, as security of income, the Payment of Gratuity assumes great importance. It is a gratuitous payment given to an employee on discharge, superannuation or death.
32. In view of the principles laid down by the Honorable Supreme Court in the aforesaid decisions, the Management could not have any more doubt, with regard to payment of Gratuity and the pension.
In this judgment the judiciary has dealt with strong reliance place by respondents on following decisions;
State of Andhra Pradesh vs sr Bhramaramba Mallikarjuna Swami Devasthanam Srisailam, 1989 (73) STC 321:
Kumar Doab
(Expert) 01 June 2016
>>> Madras High Court
Arulmigu Dhandayuthapaniswamy vs The Appellate Authority on 13 March, 2003
https://indiankanoon.org/doc/1493676/
32. In the circumstances, while adopting the law laid down in the above pronouncement, it follows that the provisions of The Payment of Gratuity Act will have no application to the employees employed in the temples governed by the provisions of The Hindu Religious and Charitable Endowments Act and Rules 26 to 29 alone will govern. Consequently, W.P. Nos. 17569 to 17598 & 19559 of 2000 filed by the temple are allowed quashing the proceedings of the Controlling Authority and Appellate Authority under The Payment of Gratuity Act and W.P. Nos. 20201 of 2000 and 6707 of 2001 filed by the individuals seeking for a declaration cannot be countenanced and they are dismissed. The Temple employees shall be entitled to claim gratuity in terms of Rules 26 to 2 9, which is a special provision governing them. The parties shall bear their respective costs. Consequently, connected miscellaneous petitions are closed.
SAINATH DEVALLA
(Expert) 01 June 2016
Though laborious, Doab saab,has taken pains to post the requisite citations and judgments for the benefit of not only the author but also to the experts.
I applaud his efforts .
Kumar Doab
(Expert) 01 June 2016
Expert Mr. Sainath Devalla,
Sir,
Thanks for your support.
I have till date requested the Admin of LCI to let, only two threads continue, even if these become very lengthy:
http://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp
and this thread i.e;
http://www.lawyersclubindia.com/experts/Payment-of-gratuity-600816.asp
P. Venu
(Expert) 01 June 2016
A highly enlightening discussion.
However, as regards to the specific query, he posting gives the impression that none of the employees in the institution are considered to be eligible for gratuity. The author kindly confirm the position and probable reason for denial of this statutory welfare benefit.
KHS
(Querist) 02 June 2016
Sir,
So far, the institution is not paying any Gratuity to the employee leaving the organisation by resignation. There is no specific reason and not known.
Kumar Doab
(Expert) 02 June 2016
You have posted that:
"So far, the institution is not paying any Gratuity to the employee leaving the organisation by resignation. There is no specific reason and not known."
This is no information of substance that you are sharing in this thread.
The reason is to be inquired by employee in writing and replied by employer in writing.
Has every employee submitted FormI, under proper acknowledgment?
Subsequent to submission employer has to reply, by effective mode of communication.
Or all employee and you can approach the Inspector appointed under the Act or authority.
P. Venu
(Expert) 02 June 2016
The information "the institution is not paying any Gratuity to the employee leaving the organisation by resignation" is incomplete. Is it the case that those you leave otherwise than by resignation (such as retirement) death etc., are entitled for gratuity?
Kumar Doab
(Expert) 02 June 2016
The provision of a period of 5 years service as qualifying period in Payment of Gratuity Acty,1972: section 4(1)(b) is one of minimum service conditions for employees notwithstanding financial capacity of employer to bear its burden and it is reasonable restriction on the right of the employer to carry on business within the meaning of Article 19 of the Constitution and section 4(1)(b) of the Act is legal and valid. Even assuming that the presumption that a longer period of service for entitlement to gratuity on voluntary retirement or resignation is necessary to prevent labor from changing employment frequently, that consideration has no bearing on the question whether a short period of qualifying service is violative of Article 19(1)(g) of the Constitution. That Article comes into picture only if, among others-
(a) It is shown that the short qualifying period of service throws on any particular employer such financial burden as would force him to close his establishment and
(b) The provision is not one of the minimum service conditions, which must be made available to the employees.
Hence the provision for a short qualifying period per se is not invalid and cannot be struck down generally as being violative of Article 19(1)(g) of the Constitution. The provisions of the Act were meant for laying down gratuity as one of the minimum service conditions available to all employees covered by the Act. There is no provision in the Act for exempting any factory, shop etc. from the purview of the Act covered by it except those where, the employees are in receipt of gratuity or pensionary benefits which are no less favourable than the benefit conferred under the Act. The payment of gratuity under the Act is thus obligatory being one of the minimum conditions of service. The establishments which have no capacity to give to their workmen the minimum conditions of service prescribed by the statute have no right to exist[xxxiv].
Payment of Gratuity Act is on the genre of statutes like the Minimum Wages Act, ESI etc. which lay down the relevant minimum benefits which must be made available to the employees. Payment of Gratuity Act is a welfare measure introduced in the interest of the general public to secure social and economic justice to workmen to assist them in old age and to ensure them a decent standard of life on their retirement. Therefore the Act imposed a reasonable restriction on the employer in respect of the fundamental right under Article 19(1)(g)[xxxv]. The provision for payment of gratuity contained in section 4(1)(b) of the Act is one of the minimum service conditions which must be made available to the employees notwithstanding financial capacity of employer to bear its burden and it is reasonable restriction on the right of the employer to carry on business within the meaning of Article 19 of the Constitution and section 4(1)(b) of the Act is legal and valid.
Kumar Doab
(Expert) 02 June 2016
THE PAYMENT OF GRATUITY (CENTRAL)
RULES, 1972-1
In exercise of the powers conferred by sub-section (1) of section 15 of the Payment of
Gratuity Act, 1972 (39 of 1972), the Central Government hereby makes the following rules,
namely:-
7. Application for gratuity.-(1) An employee who is eligible for payment of gratuity under the
Act, or any person authorised, in writing, to act on his behalf, shall apply, ordinarily within thirty
days from the date the gratuity became payable, in Form 'I' to the employer:
Provided that where the date of superannuation or retirement of an employee is known, the
employee may apply to the employer before thirty days of the date of superannuation or
retirement.
8. Notice for payment of gratuity.-(1) Within fifteen days of the receipt of an application
under rule 7 for payment of gratuity, the employer shall-
(i) if the claim is found admissible on verification, issue a notice in Form 'L’ to the
applicant employee, nominee or legal heir, as the case may be, specifying the
amount of gratuity payable and fixing a date, not being later than the thirtieth day
after the date of receipt of the application, for payment thereof, or
(ii) if the claim for gratuity is not found admissible, issue a notice in Form 'M' to the
applicant employee, nominee or legal heir, as the case may be, specifying the
reasons why the claim for gratuity is not considered admissible. In either case a
copy of the notice shall be endorsed to the controlling authority.
(2) In case payment of gratuity is due to be made in the employer's office, the date fixed for
the purpose in the notice in Form 'L' under clause (1) of sub-rule (1) shall be refiexed by the
employer
http://labour.gov.in/sites/default/files/ThePaymentofGratuityRules.pdf
Kumar Doab
(Expert) 02 June 2016
The above mentioned Central Rules are inserted, virtually,verbatim in:
AP payment of Gratuity Rules,1972; Sec: 7,8,9.....
http://labour.ap.gov.in/documents/APPaymentofGratuityRules1972.pdf
KHS
(Querist) 02 June 2016
Respected Sirs,
Kindly accept my personal gratitude to one and all.
Indeed very much thankful and hope that I am eligible to claim Gratuity that I am entitled for. As there is no practice of claiming the Gratuity is due to lack of awareness among the employees. At the same time, the management has never offered Gratuity as yet, and to my knowledge, no employee has been submitted Form-I except claiming Provident Fund Forms. This is the ongoing scenario in the organisation.
Tomorrow being my last working of the notice period of One Month, I may get letter of settlement of account from HR Dept, since no PF deduction (except Professional Tax) effected for the service rendered for the last 6 years 2 months. Kindly suggest the time frame for submission of Form-I?
Best regards,
Kumar Doab
(Expert) 02 June 2016
Employer has to pay Gratuity within 30days from LWD or interest @10%pa has to be paid, even if employee has not made any application for payment of gratuity (FormI). The employer has to reply within stipulated time after having received FormI, as already explained above in Central and State Rules.
There is no limitation upon employee or nominee or legal Heirs to claim Gratuity. However why to delay. In case of delay it can be condoned. In case there are employees that have not claimed due to ignorance the claim can be fastened on employer as employer has to pay even if there is no claim.
You seem to have some hesitation that you have not posted however we can understand.
YOU may obtain acknowledgment and acceptance of notice of resignation, final resignation, Correct FnF statement computing earned wages/leave encashment/bonus/OT/reimbursements/incentives/(Gratuity:::: Or without Gratuity) etc, payment of FnF dues, NOC/NDC, acknowledgment of handover of charge/assets, Form16 as per correct FnF statement,PF a/c slips, ESIC Card, service certificate, relieving letter (with good comments) etc...............
and thereafter submit FormI, of course under proper acknowledgment.
In case there is even huge delay in case of any employee you may come back and we will support such employees.
KHS
(Querist) 03 June 2016
Respected Sirs,
My personal gratitude for your invaluable suggestions that inspire me to submit Form-I upon receiving FnF statement, hopefully by the end of the day. As there is no PF contribution in my case, the only thing left receipt of clearance & experience certificate from the competent authority/HR. Once received above, will submit duly filled in Form - I will be submitted for payment Gratuity.
Once thanking you Sir,
KHS
Kumar Doab
(Expert) 03 June 2016
If PF is applicable to establishment and you are entitled and if employer has not provided, then employer alone is accountable.
Likewise for ESIC.
Are you aware of the benefits of ESIC e.g; unemployment allowance, coverage for life time even after retirement for a nominal fee of Rs.120pa for self and spouse?
KHS
(Querist) 03 June 2016
I am not aware of the benefits that your were kind enough to mention in the latest message. Eversince joined the Foundation in 2010, keeping in view of the practice of deducting both the contributions (Employee & Employer share) from the salary of the employee,I hasn't opted PF by that time, especially due to lower emoluments per month.Subsequently, the management has never offered ESIC; this happened due lack of knowledge on my part.
Regarding today, being the last working of the notice period, I was asked for handing over the charge.Accordingly, relevant files, registers, and keys were handed over to HR Department under acknowledge- ment stating that "Hereby declared that in connection with the submission of resignation vide dated 3rd May,2016, on completion of Notice period at 5:30 Hours today,Mr.K.Suryanarayana Murthy, Assistant Manager, Dept. of Medical Education has handed over the following: 1)... 2)...3)..
Handed over to:XXXX Manager HR,
Handed over by: K.Suryanarayana Murthy
I was told that due to the non-availability of Relieving Letter signing authority, expected to report duty on 6th June, 2016, above acknowledgement has been issued.
Kindly advice.
Regards,
KHS
Kumar Doab
(Expert) 03 June 2016
When one takes a decision, one should take a considered decision.
You took decision that were suitable to you.
It is illegal if you withdraw your EPF during typical job change. One can withdraw EPF only if one has no job for 2 months. Otherwise withdrawing for any new job change is actually illegal. Rules allows only to transfer in case of job change.
An employee who was a member of this scheme and withdrawn all amounts of his contribution based on either retirement from service after attaining age of 55 years or who migrating abroad for permanent settlement.
An employee whose salary (BASIC+DA) at the time of entry into scheme more than Rs.15, 000.
If a member is considered as an apprentice then he will not come under EPF.
Obtain acknowledgment/acceptance of notice and final resignation, Correct FnF statement, FnF dues, salary slips of all months and last month, Form 16 as per correct FnF statement,service certificate certificate, relieving letter, NOC/NDC etc................
KHS
(Querist) 04 June 2016
Respected Sirs,
Thanks for your invaluable support and guidelines.
At Sankar Foundation, employees leaving the organisation by way of resignation, retirement, death, etc. following certificates are offered:
1) Relieving letter
2) Service Certificate
3) Notice period Salary
(Ex-servicemen, retired personnel (Govt & Private) have not been allowed PF, ESI facility except 30 days paid leave + General Insurance for Rs.50,000)
For others, PF, ESI and 30 days Paid leave.
It is further informed that to date neither the employer has come forward with the offer of Gratuity eligible to the employee or not even a single employee has claimed Gratuity; presumably, due to lack of awareness. This is the ongoing scenario in the Foundation. The institution is allowing 30 days paid leave per year (Jan - Dec.)of which 9 days are considered as Earned leave. CLs availed till date are 10days, Kindly advice whether I am eligible for the unavailed 9 days EL.
Best regards,
KSMurthy
Kumar Doab
(Expert) 04 June 2016
If the internal rules provide inferior benefits than applicable enactments then NO court of law, lawful authority shall agree to it.
If If the internal rules provide superior benefits than applicable enactments then NO employee shall complain.
Beyond this engage an able counsel at your location.
KHS
(Querist) 05 June 2016
Sirs,
Here in the organisation, employees are benefited with 30 days leave of which 9 days encasheable. Against resignation, they are entitled for PF. This is all due to lack of awareness, and practice adopted over the years.
In my case, kindly advice whether I eligible to claim Gratuity for the period served 6 years - 2 months (19.4.2010 to 3.6.2016).
According to HR, I will be given the following:
1) Relieving letter
2) Service letter
3) Transfer of salary for the notice period from 1.5.2016 to 3.6.2016
4) Salary Certificate
As against 30 paid leave (9 days are EL) till 3/6/16, I availed 12 CLs. Am I eligible to claim 9 days EL credited to my account? Shall be grateful for clarifying above points to enable to submit Form - I to the competent authority.
Rgds,
KHS
Kumar Doab
(Expert) 05 June 2016
HR should encash the EL in FnF.
Don't send FormI to Controlling Authority straight.
Submit to employer under proper acknowledgment.
Let employer reply in writing.
KHS
(Querist) 05 June 2016
Thanks for the reply. As suggested, hopefully, as informed, I may receive relieving letter and FnF statement tomorrow (6.6.16). As suggested, duly filled in Form-I will be submitted to HR under proper acknowledgement. In case refused to acknowledge, is it permissible to send by Regd. post with ack. due /scanned copy of the same through e-mail to Manager,HR/Head of the institution's registered e-mail id? Kindly clarify.
And lastly, two employees rendered service for more than 4years and 6 months and left the service by resignation. Are they eligible to claim Gratuity?
Regards,
KHS
Kumar Doab
(Expert) 05 June 2016
Visit HR personnel alongwith some unshakable witnesses e.g. employee's/trade union leaders.
If the HR person declines to accept and/or issue acknowledgment, visit the o/o appointing authority, MD etc, alongwith some unshakable witnesses.
If possible record the declinature.
Submit FormI by Redg. post and covering letter narrating the visit and declinature.
Obtain the POD and certified copy of run sheet of postman from PO.
You may go thru Payment of Gratuity Act;1972 carefully.
If the establishment works for 6days/week or less than 6days/week and if employee has worked for 240/190 days in a year and 5th year then employee should be eligible.
Even if the employee is not eligible, employer can still pay Gratuity by its sweet will.
Kumar Doab
(Expert) 05 June 2016
WE had suggested another thread to you as above in this thread:
http://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp
You may go thru it.
You need to do some self study and homework by your own also.
