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Raja (Consultant)     16 March 2013

Am i eligible for gratuity

I have worked in a company that has 5 day work week. I have joined in the company on 24 Feb 2005 and got relieved on 31 Aug 2009.

[2-A. Continuous service.- For the purposes of this Act,—
(1)  an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order [* * *]16 treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act;
(2)  where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer—
(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—
(i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
 
As per this for companies follows 5 day a week a service of 4 years and 6 months (190 days = 1 year) eligible for gratuity.

But when I approached the company for gratuity they mentioned that I am not eligible for gratuity and company mentioned 240 days of service related High court judgement.

Am I eligile for gratuity or not? Please advice.

 

Thanks in advance.



Learning

 11 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     16 March 2013

Gratuity Eligibility : 
    1. Any person employed on wages/salary. 
    2. At the time of retirement or resignation or on superannuation, an employee should have rendered continuous service of not less than five years. 
    3. Payable without completion of five years only when death and disablement.

    This gratuity calculator is applicable only for indian employee.

Kumar Doab (FIN)     16 March 2013

 

You have posted that:

--“ But when I approached the company for gratuity they mentioned that I am not eligible for gratuity and company mentioned 240 days of service related High court judgement.”

Has the company stated so in writing?

If not you may place it on record by writing minutes of discussion (mention name, designation, dept, address..)

You may explain that the judgment quoted by the company personnel is in case of companies operating on 6 days/week and as per clause number …….. [2-A. Continuous service…. (2) …. (a)… (i) of the Statue

Payment of Gratuity Act, 1972

The statutory obligation of the employer is make the statutory payment of Gratuity to employee if employee has worked for 190 days in a year and if employee has worked for than 6 months

(b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than -

(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and

(ii) one hundred and twenty days, in any other case;

 

Therefore the employer should make the payment of Gratuity to you by Bank DD favoring you within one month of your date of retirement.

You may remind that the High Court Judgment quoted by Mr/Ms…..specifically mentions the clauses on 240 days continuous work in case of company operating on 6days/week.

Thus build the pressure and obtain your payment without the need for lengthy debate and litigation.

( Submit FormI under proper acknowledgment)

You may also go thru:

Section: 7
Determination of the amount of gratuity.

(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount gratuity so determined.

(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.

(4)

(a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.

1 Like

Raja (Consultant)     16 March 2013

Thank you for the reply Mr. Kumar ji. I have joined on 24 Feb 2005 as per offer letter. However as company records (during FFS), it was mentioned as 26 Feb 2005. I have just noticed it. Comapny people replied that  Date of Joining         26/02/2005, Last Working Date   31/08/2009, Completed Years     4 Years 5 Months. I have the relieving letter with the details as 24 Feb 2005 to 31 Aug 2009. Can I ask them to correct the details as well?

Thanks in advance.

Kumar Doab (FIN)     16 March 2013

You should point out all errors and get any and every error corrected.

If you have already submitted the acceptance of FFS you may issue a terse communications in writing under acknowledgment mentioning the acknowledgment given by you stands withdrawn and the acknowledgment must not be read as acceptance and company has willfully submitted erratic FFS to you and must correct the errors and supply the correct FFS again under original seal and signature by hand of the competent employee, to you by redg./speed post only.

You may draft your representation as suitable and acceptable to you.

2 Like

Sunil Gokhale (Advocate)     16 March 2013

You are eligible for gratuity ... you need to pursue the matter with the authorities ... if you need to take any legal action write to adv.gokhale@gmail.com

1 Like

Kumar Doab (FIN)     16 March 2013

Supply your actual and factual DOJ, date of relieving/last date in office, with documents you have e.g. Appointment letter, joining report, Salary slip, relieving letter, resignation letter, acceptance of resignation, attendance record  etc…. and get these corrected.

2008 was a leap year: The month of Feb had more days.

From DOJ start counting and first complete 4 years.

Then count 190 days for 5th year, up to last day in office: Date of reference .

In case you are facing issues meet the Head-HR and clarify the doubts and resolve the matter in your favor. However submit minutes of discussion in writing and under acknowledgment.

Raja (Consultant)     16 March 2013

Thank you Mr. Kumar.  Can you please help me in understanding the first complete 4 years means? Does it mean 365 days per calendar year or 190 working days per calendar year? I am assuming 365 days per calendar year for the first 4 years. Is my understanding correct? I would like to double check from legal aspect before I present the complete data to HR. Sorry for bothering again.

Kumar Doab (FIN)     17 March 2013

You are correct.Your last day in office is date of reference.2008 is leap year.

Fight for your cause.

Don't ever give up without making an effort.

Appaorach your lawyer.It is always better for an employee to have acces to a competent and experienced labor consultant/service lawyer.

1 Like

Rathinavel (Team Lead)     03 May 2013

Hi Sir,

I am working in Private Lid company, As per the appoinment letter my join date is 04/02/2008 and resiging  on 03/05/2013. I have been working in this company 5 years 2 months. Our company doesn't have PF deduction for the employees.  I sopek to my HR he said we dont provide gratuity and dont have the policys.  My doubt is am i eligible for gratuit, May i get the gratuity by legal action. 

My salary no deduction like PF, ESI others, Only Deduct Professional Tax.

Kumar Doab (FIN)     03 May 2013

 

 

 Applicablity of PF; Wages up to Rs.6500/pm, ESIC; Wages up to Rs.15000/pm as per def. of wages in these enactments.

 

Gratuity: No limit. Applicable to all employees.

 

Applicable to all establishments where 10 or more persons are employed.

 

------Has the central Govt. exempted your company under Sec 5 of the Act? If yes ask this HR person to provide you the certified copy of the exemption.

You should also draw the attention of this HR person to word “WHOEVER” in :

Section: 9
Penalties.

(1) Whoever...........................

............ Provided that where the offence relates to non-payment of any gratuity payable under this Act, the employer shall be punishable with imprisonment for a term which shall not be less than [36] [Six months but which may extend to two years] unless the court trying the offence, for reasons to be recorded by it in writing, is of opinion that a lesser term of imprisonment or the imposition 01; a fine would meet the ends of justice.

 

 

--------The HR person is not your employer. He is another employee in the company.

 

Submit FormI under proper acknowledgment to o/o appointing authority/MD by redg. post (avoid speed post/courier). After 10 days obtain POD (free of cost) and certified copy of the run sheet of post man (by paying Rs.10) from sub postmaster of PO from which redg. post was booked.

 

 

If the company does not pay gratuity, submit copy of FormI with POD of redg. post to Controlling Authority of Gratuity (which may be DLC in o/o Labor Commissioner at your location).

If company has not taken compulsory Insurance as per Sec4A and has not registered with Controlling Authority you (employee) are not at fault.

Company shall have to pay.

 

There are many threads at LCI regarding Gratuity at:

https://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp#.UXrEe5indTs

 

 

 

 

 

 

 


Attached File : 301466049 paymentofgratuityact(1).doc downloaded: 34 times

Raja (Consultant)     03 May 2013

I got an update from HR that they are correcting the joining date, However after I informed about the salary notice period due, gratuity eligibility as per the gratuity act, HR is not responding to the email communication, though earlier used to respond. What would be the best way you suggest with this kind of situation. Thanks in advance.


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