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(Querist) 07 November 2018 This query is : Resolved 
How a workmen having more than 5 years employment without any proof of employment claim gratuity
Isaac Gabriel (Expert) 07 November 2018
Without the particulars ie. Name of the institution, salary drawn, no of employees working,date of appoinment, date of relief it is not possible to decide.
KISHAN DUTT RETD JUDGE Online (Expert) 07 November 2018
Dear Sir,
Important relevant rules are as follows:
The rules suggests that once an employee becomes eligible to receive gratuity, he can apply within 30 days from the date it becomes payable. Further, if the date of retirement or superannuation is known, then too, the application can be before 30 days.

However, an employer cannot reject an application by the employee after the expiry of 30 days, if the delay happened due to a valid reason. The rules further clarify that no claim for gratuity shall be invalid merely because the claimant has not filed his application within the specified period.

An employer is required to specify the amount payable and mention the date of payment within 15 days of receipt of application. The payment must be made within 30 days from the date of receipt of application.

In case employer rejects the application of an employee for the payment of gratuity, he will be required to specify the reason for rejection.

If the claim of gratuity is made by the nominee or legal heir, the employer may ask for a witness or evidence as deemed relevant for establishing the claimant's identity or making sure that the claim is genuine. In such a case, the employer will accept the claim for payment of gratuity from the date such a witness or evidence is furnished to the employer.

The payment of gratuity can be made in cash, demand draft, or by cheque.

An employee or nominee/ legal heir can complain to the controlling authority, i.e., the assistant labour commissioner, in case of dispute under any of the following conditions:

a) If the employer refuses to accept the application filed for the payment of gratuity;
b) If the amount of gratuity paid is less than what an employee feels should be paid;
c) If after receiving the application, the employer fails to specify the amount payable to the claimant and/or fails to make the payment within the specified time.

Any complaint must be filed with the assistant labour commissioner within 90 days from when the event occurred. However, the commissioner can accept the complaint filed after 90 days if applicant can explain reason for the delay.

If you have filed a complaint, make sure you are present on the time and venue as fixed by the commissioner as your absence can lead to the application being dismissed. But if there was a genuine reason for your absence then you can apply for a review within 30 days for the re-hearing.

However, if your employer fails to appear on the required date even then the commissioner may proceed with the hearing for your benefit.

Forfeiture of gratuity
You must know that your gratuity can be forfeited. The Act states that if an employee's services are terminated due to any act, wilful omission or negligence causing damage or loss to or destruction of property of the employer, the employee's gratuity shall be forfeited to the extent of damage or loss.

The full amount of gratuity can be forfeited if an employee's services have been terminated due to:
a) His riotous or disorderly conduct or any other violent act;
b) Committing an offence involving moral turpitude.
P K George (Querist) 07 November 2018
Thanks for the replies sirs.
How a workmen could prove years of employment in the absence of documents.
The employer rejects the claim on the ground that that the workmen was called on for work only for a few days.
So there is no register or document for either employer or employee.
So how would the employee can rely on his claim.
Isaac Gabriel (Expert) 07 November 2018
If attendance reistered,it could be better evidence.
Dr J C Vashista (Expert) 08 November 2018
1. How you are concerned with the query ?
2. Whether the employee is unaware about his/her attendance and seeking obligation from experts ?
3. Vague facts.
M V Gupta (Expert) 08 November 2018
In many cases employers engage workers on daily wage basis and pay wages under vouchers. Some times the employers with a view avoid application of various labor laws, account for the wages paid under different heads of such cases the worker can prove his employement by oral evidence of his co workers or others who have seen him working for the employer. He should first apply to the employer for payemnt of gratuituy and in case it is refused file complaint with the Controlling Authority within the time prescribed.
P. Venu (Expert) 08 November 2018
There could certainly evidence in form or other. It is only that the matter requires sustained and focussed efforts to gather the facts and to present and prove them.
P K George (Querist) 07 February 2019
I agree with Mr.M.V.Gupta.
Thanks Experts

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