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Am i eligible for gratuity

Page no : 2

Bharti Sharma (Assistant Manager)     14 September 2015

Oh Okay, however, the only email address we have as an employee is of the HR team that takes care of everything from the hiring till the exit and after exit formalities as well.

That is the reason i wrote to that email address of my previous organization initially.

Regards

Bharti

Kumar Doab (FIN)     14 September 2015

Obtain email id.

If you can't you can send letter by Redg. Post and nararte all representations made so far to HR personnel and raise your demand.Thus you will be able to make good offices also a noticee and  party.

Get into touch with unions as well as already suggested.

 

Bharti Sharma (Assistant Manager)     23 October 2015

Hello Doab Sir,

I have got a response again from my previous organisation mentioning that i am not eligible(copied and pasted below). Please suggest as the HR again responded on email and not sent the proper acknowledgement of the Form I that i have sent to them through registered post.

I have responded back saying that please respond with proper acknowledgement.

Regards

Bharti

====================================================================

Subject: RE: FW: Re: FW: clearance [Do not remove:862572410031EA65|9A624858C907C33B65257E210045958D]
Date: 25 September 2015 18:23PM

Hi Bharti,

 

Refer to your application dated Sep 12, 2015 for payment of gratuity from Aon, please note that an employee to be entitled for gratuity has to render continuous services for not less than 5 years and only exception is with respect to termination of employment in the event of his death and/or disablement.

 

Accordingly, the policy and stand point of company that Gratuity is payable only upon completion of 5 years of continuous service is as per the provisions of gratuity act only.”

 

Hope this clarifies.

 

---

Thanks and regards,

Priyanka Bali  |  India HR Shared Services

Kumar Doab (FIN)     23 October 2015

There are many threads on similar query at following link and many judgments are quoted in the threads, that settles the query:

 

 

https://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.Vfa6_31-jMo

e.g;

 

https://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp

 

You may show these to your counsels and elders in the family,compettent and experienced well wishers.

HR person has cited company's policy that is provided to her and she can't go beyond the directives of her masters.

 

However the stand taken by the company in the name of its policy is not in line with the Act.

So you may escalate to good offices finally.

Thereafter if you are unable to resolve with your skills, you may lean upon Employee's/Trade Union leaders , your able Labor Law Consultant.

 

 

 

Bharti Sharma (Assistant Manager)     23 October 2015

Thanks Sir... however, she has initially mentioned that the Mettur Beard Shell case is different and is not applicable in your case and so I am getting confused now. They have not sent the acknowledgement as well of the Form I that i sent them through registered post. Please suggest if i should now take the help from an able Labour Law Consultant. Regrads Bharti

Kumar Doab (FIN)     23 October 2015

You have posted that:

 

----"facts of Mettur Beard shell Ltd. case are different and not applicable in your case."

You can ask why it is not applicable.

 

For your knowledge: The Payment of Gratuity,1972 is statue and social security enactment, enacted by Central Government.

 

The judgment of High Court of any state, on a Central Govt Act is applicable throughout the territory of India.

 

 

 

----"Accordingly, the policy and stand point of company that Gratuity is payable only upon completion of 5 years of

continuous service is as per the provisions of gratuity act only.

You may further refer to the gratuity act (extract given below for reference) to understand the exceptions.

Section: 2A

Continuous service.

For the purposes of this Act, -

(2)

(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the

date with reference to which calculation is to be made, has actually worked under the employer for not less than

(ii) two hundred and forty days, in any other case;"

 

 

The language in the Act itself is crystal clear, hence No judgment is indded required to be quoted.

The Payment of Gratuity,1972 is statue and social security enactment, enacted by Central Government.

 

You may escalate to the good offices and demand reply within say next 7 days and also consult unions................

 

If good offices also do not provide relief then you can explore further options.

 

Kumar Doab (FIN)     23 October 2015

Supreme CourtÃs obiter in Kusum Ingots v. Union of ... Union of India to hold that a High Court's judgment on the constitutional validity of a central legislation will be applicable throughout the territory of India. Payment of Gartuity Act,1972 is a central Govt legislation.

 

Supreme Court of India
M/S. Kusum Ingots & Alloys Ltd vs Union Of India And Anr on 28 April, 2004

https://indiankanoon.org/doc/1876565/?type=print

 

Kumar Doab (FIN)     24 October 2015

The Gratuity claim can be taken as consumer complaint in Consumer court (DCDRF) also.

 

Bharti Sharma (Assistant Manager)     25 October 2015

Thank you doab sir... I will file an application in consumer court as well... Regards Bharti

Kumar Doab (FIN)     25 October 2015

Dear Bharti,

 

The Act is social security enactment and court have taken pro employee stance.

There  have been plethora of judgments.

Still employers/establishments pose defiance.

Usually and as in your case the shot is being fired from the shoulder of HR personnel.

The HR personnel might be 'Designated Person' for signing and approving and paying the claim.

The HR personnel might be helpless due to policy of the employer (published/verbal).

 

HR/Legal Cell personnel are expected to advise the employer properly.

Sec;9 in the Act provides for 'Punishment with jail time ' to whoever avoids to pay Gratuity.

 

For an aggreived person like you it is imp. to take all steps to get your dues and also to Act proeprly and sufficiently and reduce atleast one offender/person, be it employer or HR person, from the  society.

 

You may escalate to good offices, give reasonable time, prompt to seek legal opinin, ask questions like why the judgemnt is not applicable, why the provisions of the Act are not applicable etc and then move to approach unions/lawyer/lawful-autority/forum.............. and seek not only payment with interest but also punishment as provided for in the Act.

 

 

 

 

 

 

 

 

 

Bharti Sharma (Assistant Manager)     27 October 2015

Thanks sir... Just want to confirm as now I want to deal with the old organization legally and if I can respond back to the email from hr in the language mentioned below since the HR is denying to respond me with proper acknowledgement and not responding properly- ====================== Dear HR, Please suggest the contact person of the organisation who is authorized to handle legal notices. ========================= Regards Bharti

Bharti Sharma (Assistant Manager)     30 October 2015

Sir... Please confirm as now I want to deal with the old organization legally and if I can respond back to the email from hr in the language mentioned below since the HR is denying to respond me with proper acknowledgement and not responding properly- ====================== Dear HR, Please suggest the contact person of the organisation who is authorized to handle legal notices. ========================= Regards Bharti

Bharti Sharma (Assistant Manager)     04 November 2015

waiting for your advise

Kumar Doab (FIN)     04 November 2015

1. If the dispute is contnuing for 3 months you can directly approach labor Court as per ID (Amendment) Act, without going for concilliation thru ALC.

 

2. You can approach Inspector appointed under Bombay Shops & Estbs Act

3. You can approach DCDRF (Consumer Forum) and there is no need for legal notice.

4. YOu don't need to ask to whom legal notice is to be sent but if you feel that it shall exert some mental pressure then you may........................or send legal notice at comany's address.

5.You can seek support of Female employee's/IT employee's/Trade Unions etc

Rest everything has been discussed in detail.

 

Bharti Sharma (Assistant Manager)     21 July 2016

Hello Doab Sir... its been a long time that i am trying to get the Gratuity from my previous employer... I want to attach the files here which were sent from my end(my lawyer) and the response that i have received from their lawyer, but not sure if i should attach here... or should I attach the same as private message.. please advise Regards

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