kumar (Self) 06 January 2014
Dear Sirs,
Greetings.
I worked in a Automobile company and resigned after 5 years and 2 days of service(GET period(1yr) + 4 years after confirmation).I joined as a Graduate Engineering Trainee and i got stipend which dint include Gratuity.
After 5 years of service i was told i am not eligible for Gratuity citing that the gratuity was not included in my GET period salary.
Please help in this.
Kumar Doab (FIN) 06 January 2014
You should be eligible for payment of Gratuity if you were not recruited in 1st year as Apprentice under Apprenticeship Act 1961.
The GET (Graduate Engineering Trainee) under some Managements Training Programme may qualify for Gratuity.
If you were not recruited in 1st year as Apprentice under Apprenticeship Act 1961 then you may submit FormI (or any other prescribed form prescribed under Gratuity Rules of the establishment if it has its own Trust to manage the Gratuity) with a covering letter mentioning that you were not apprentice and notice of determination of Gratuity has not been supplied to you.
You should download Gratuity Rules of the establishment and keep them safely with you.
You may also show the job advertisement, job application, appointment letter issued to you, standing orders of the establishment to a competent and experienced labor consultant/service lawyer.
If possible you may attach all of these in this thread and to maintain the confidentiality you may erase the names etc.
A trainee other than an apprentice engaged under the Apprentice Act is at par with any regular employee under the labor laws and therefore you should be eligible for Bonus, ESI, Min Wages........................
Did the company deduct TDS and if yes under which section?
Did the company provide for PF, ESI ?
Is it mentioned in appointment letter that after successful completion of training permanent employment shall be offered?
The term stipend is mentioned in the Apprentice Act 1961 but it does not mean that every person getting stipend will fall in the category of Apprenetice.
The term Stipend (if not paid under Apprentice Act) varies according to the engagement terms between two parties. Also Stipend may be taxable or may not be taxable based on the engagment terms entered between two parties under IT act.
Section 10(16) of the Income Tax Act provides for exemption of scholarship received to meet the cost of education. This is required to be paid for the pursuit of knowledge, resulting in awarding a degree/completion of education course is exempt.
However any payments received on training which do not amount to education/recognized course by an educational institute, may not qualify for exemption.
You may find another thread as relevant at:
https://www.lawyersclubindia.
Once the trainee / temporary / probationer or whosoever, completes five years under one employer, would become entitled to gratuity irrespective of the fact that on the date of joining, he was in fact taken as a trainee / temporary / probationer and was later on confirmed or taken on rolls of the Company.
Period of traineeship is NOT TO BE EXCLUDED for counting the minimum 5 years for payment of gratuity.
CHAIRMAN-CUM-MANAGING DIRECTOR, ORISSA MINING CORPN. LTD. v. CONTROLLING AUTHORITY, PAYMENT OF GRATUITY ACT & ORS.
https://www.legalcrystal.com/judgements/descripttttion/529256
“Apprentices and trainees were not eligible to get gratuity and, therefore, the claimant-employee was not entitled to any gratuity..................
Learned counsel for the claimant-employee, however, submits that relevant Rule 4 is contrary to the provisions of Section 2(e) of the Act, which excludes an apprentice and not a trainee.”
Dr J C Vashista (Advocate) 07 January 2014
Very well advised, I endorse and appreciate. However, Mr. Kumar Doab ji, please withhold citations untill it is inescapable and your advise is contradicted /challanged by any expert.
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