Can i claim for gratuity, if i am working in chartered accountant firm, from last 8 years.

please answer

According to Section 3 of The Payment of Gratuity Act, 1972, it is applicable to

(b) every shop or establishment  in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;

No doubt, a Chartered Accountant Firm will covered under the definition of Establishment.

However, what is to be seen is whether there are ten or more persons employed.  

The CA qualified persons are not employees.  TSimilarly, the Partners in the Firm are not employees. herefore you have to exclude them.  

Only the Clerks, Typists, Stenos, PAs, peons, chowkidar etc., are employees.  If there number is more than 10 in any year, then the Act would be applicable.

Based on the above, you can verify whether your Firm is covered under the Act or not. 

The employee can represent to employer to pay Gratuity per eligibility.

If eligible, you can also do the same.

The employer is under obligation to supply the Notice of determination of Gratuity, payment of gratuity, requisite forms if any..and if doesn’t pay within 30days from LWD then has to tender payment of interest @ 10%pa..for the delayed period.

The eligible employee may write under proper acknowledgment to good offices of designated employee/appointing Authority/MD/CEO/employer that Notice of determination of Gratuity, payment of gratuity, requisite forms if any is not supplied and may be supplied immediately by Redg. Post .

Thereafter employee can submit FormI under proper acknowledgment.

The employer is under obligation to reply and either decline payment citing justified reason or supply payment with correct calculation..

Have you ( and other employees) represented to employer and received any reply in writing?

Apparently you are still working and have not separated and have not represented.

Hope you have irrefutable evidences of having worked from DOJ to till date ( and LWD in future)!

In case of other employee’s as per your post employer has not paid and that bothers you…. Since employer has quoted some policy …………

Is IT a published policy and circulated to employees?

Employer cannot act like a street magician and produce things from thin air.

The law of land/statute/precedence’s shall prevail upon any private policy/rules/agreement drafted by employer and signed with employee..

You may understand the provisions, Act(s), Rules…

Check at website of state Govt Labor deptt. And you can download the Act and related rules..addresses/contact details of authorities..

e.g; Maharashtra

[NO. 39 OF 1972]

THE PAYMENT OF GRATUITY ACT, 1972; 1{3(b)(c),3A}, 2A, 4(5), 4A,5,7,9

Rules framed by the state under the Act e.g;

The Payment of Gratuity (Maharashtra) Rules, 1972

APPLICABILITY

(i) Every factory & shop, establishment in which 10 or more persons are employed. ELIGIBILITY (i) Any person employed on wages / salary.

(ii) At the time of retirement or resignation or on superannuation, an employee should have rendered continuous service of not less than 5 yrs.

State Shops & Estbs Act

e.g; The Bombay Shops and Establishments Act, 1948; 2(4,6,7,8,16,27,30) and NOTES therein carefully..

 If the establishment is covered by the Act(s), as in your state and your relationship is that of employer-employee, then you should be eligible.

There are many threads on similar query that you can search by using SEARCH option e.g;

Home / Experts / Labour & Service Law

‘Eligible for gratuity’

{However the advice posted therein is contrary to provisions of THE PAYMENT OF GRATUITY ACT, 1972; 1{3(b)(c),3A}

Ignore the wrong, misleading posts and postors posting wrong, misleading, illegal advises and repeatedly posting wrong advises on one subject e.g; Gratuity ( and others say; WILL, Nomination etc etc ).}

And;

Home / Experts / Labour & Service Law

‘Eligible for gratuity’

Also go thru citations and judgments;

Delhi High Court

Sh. Lalit Bhasin vs The Appellate Authority Under ... on 17 March, 2010

Author: Rajiv Sahai Endlaw

Madras High Court

Pithavadian & Partners vs Deputy Director on 7 April, 2010

Karnataka High Court

Phillipos & Company And Others vs The State on 11 September, 1989

Equivalent citations: 1990 67 CompCas 154 Kar, ILR 1989 KAR 3135

Bench: K Navadgi

Articles under my Profile;

Off days, holidays are counted in service period for the Payment of Gratuity !

No Limitation to Claim Payment of Gratuity

This should give you clear idea for your and other employee’s case(s).

You ( and others) may Pick up relevant points…and decide.

Approach seasoned employees/trade union leaders, 'Seasoned and Experinced Authorised representative' , your own very able senior LOCAL counsel of unshakable repute and integrity specializing Labor/service  matters  and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..and show the documents/evidence for a considered opinion..

At each location three are some counsels that specialize in such matters and they are well known.

Check for such counsels at LOCAL Labor court/CGIT, O/o Controlling Authority of Gratuity, CAT, School-Educational Tribunal, civil courts, HC, SC……

You ( and others) may Pick up relevant points…and decide.

Approach seasoned employees/trade union leaders, 'Seasoned and Experinced Authorised representative' , your own very able senior LOCAL counsel of unshakable repute and integrity specializing Labor/service  matters  and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..and show the documents/evidence for a considered opinion..

At each location three are some counsels that specialize in such matters and they are well known.

Check for such counsels at LOCAL Labor court/CGIT, O/o Controlling Authority of Gratuity, CAT, School-Educational Tribunal, civil courts, HC, SC……

You ( and others) may Pick up relevant points…and decide.

Approach seasoned employees/trade union leaders, 'Seasoned and Experinced Authorised representative' , your own very able senior LOCAL counsel of unshakable repute and integrity specializing Labor/service  matters  and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..and show the documents/evidence for a considered opinion..

At each location three are some counsels that specialize in such matters and they are well known.

Check for such counsels at LOCAL Labor court/CGIT, O/o Controlling Authority of Gratuity, CAT, School-Educational Tribunal, civil courts, HC, SC……