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Eldho Joy (Technical)     28 July 2012

Clarification

Dear Sir

I was in service in a Govt.undertaking for a continuous period of 5 years.However when left the institutioin I was denied gratuity benefits by the organization citing the reason that I was RELIEVED OF from service not resigned.

Am eligible for gratuity? If yes,how to forward and please  give court order/any other suppoting documents

Eldho Joy



Learning

 15 Replies

Kumar Doab (FIN)     30 July 2012

 

Kindly go thru the letter supplied to you relieving you from the service and communication preceding it, and specific communication related to payment of gratuity to you..

The speaking order with reasons stated in sec 4(6) to forfeit the gratuity to the extent of the damage is must following due process of natural justice.

Payment of Gratuity Act, 1972

Section: 4
Payment of gratuity.

(6) Notwithstanding anything contained in sub-section (1), -

(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused.

(b) the gratuity payable to an employee may be wholly or partially forfeited]­ -

(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or

(ii) if the services of such employee have been terminated for any act which

constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.

Some Companies/Establishments manage their Gratuity Fund. You may look into the Gratuity rules of your establishment.

Gratuity Rules: Bank of Baroda

III.  The expression “Salary” or “Wages” or “Pay” shall mean.

iii)  Notwithstanding anything  contained in Rule 12(1) (A) or  12(1) (B)  here in
above

•  Thegratuity payable to an employee shall be wholly forfeited:
•  If the services  of  such employee have been terminated for his  riotous  or disorderly
conduct or any other act of violence on his part, or
•  If the services of such employee  have been terminated for any act which constitutes
an offence involving moral turpitude provided that  such offence is committed by him
in the course of his employment.

 


Attached File : 839010986 paymentofgratuityact(1).doc, 839010986 gratuity rules bank of baroda.pdf downloaded: 113 times

Eldho Joy (Technical)     01 August 2012

Dear Sir/Madam

Thank you for the response.

Let me further clarify. The institution in which I worked for almost 7 years was actually following the rules and guidelines applicable to the State Government employees.The relieving order was issued as per my request,for the purpose of taking up a new job under the same state government.In the relieving order nothing is mentioned about gratuity and other benefits.

The latest development in this matter,  on enquiry, is that my request for gratuity benefits was addressed to the state govt.,and the reply from there is that since I left the institution for taking up further employment I am not eligible for the said benefits. If I have to approach the court how should I go ahead?Should I approach the labour court? If any legal assistance is available?

Please advice me further in this matter. 

Eldho Joy E

Kumar Doab (FIN)     01 August 2012

The said reply is verbal or in writing?

You may obtain the copy of rules applied in your case from the dept/state govt.If required you may adopt RTI route.

For relief you can approach Controlling Authority which may be ALC in your case.

You may submit form I to your employer with a copy to Controlling Authority under proper acknowledgment from both.

You may approach a competent and exeprienced service lawyer/labor consultant at your location having in depth knowledge of rules applicable to your institution. If there is union in your institution it may help you.

Valuable advice from learned experts/members is sought.

 

 

 

Section: 4
Payment of gratuity.

(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -

(a) on his superannuation, or

(b) on his retirement or resignation, or

(c) on his death or disablement due to accident or disease:

darshana sawant (associate consultant)     03 August 2012

dear mr joy,

 

In which govt undertaking were you working?  Did it have its own gratutiy rules ?  As per section 4 of the gratuity act, gratuity is payable to an employee on the termination of his/ her employment after he he has rendered continuous service for not less than 5 years, on his superannuation, or on his retirement or resignation, on his death or disablement due to accident  or disease;  Why were you relieved, or how was was service terminated?

Eldho Joy (Technical)     03 August 2012

Dear Sir

I was working in organization working under the govt.of Kerala which hasbeen following the gratuity rules of Kerala Service(KSR).It is the rule that is following the govt.employees of the Kerala State.The crucial question here is that I was relieved of service not terminated when I got another job (Kerala University).I am given a relieving order by the organization.So it IS NOT RETIREMENT,RESIGNATION OR SUPERANNUATION.IT IS RELIEVING WITH THE PERMISSION OF THE EMPLOYER FOR TAKING UP ANOTHER JOB.

Kumar Doab (FIN)     04 August 2012

It is felt that you were appointed in your present employment and some appointment letter must have been issued to you.

In the appointment letter the terms of separation should have been expressed.

While seeking an order to be relieved you must have expressed your wishes to end the employment with present employer and to be another employer. At the best this can be an expression for resignation/termination initiated by employee.

The contract of employment has ended after you have been relieved.

In the rules is there any provision to transfer your gratuity to next employer?

PF and Gratuity are covered under social security laws. Gratuity can be forfeited under provisions as expressed in

Section: 4
Payment of gratuity.

(6) Notwithstanding anything contained in sub-section (1), -

Either the understanding of the matter is inadequate or some brilliant mind/craftsman in your establishment is at work to deny the gratuity.

You should demand the certified copy of rules and laws applied to deny you the gratuity.

Or let controlling authority take over the matter.

Valuable advice of learned experts and members is sought.

 

 

darshana sawant (associate consultant)     04 August 2012

dear mr joy,

 

Please refer to your service rules, which govern the payment of gratuity, if possible reproduce that clause and everything related to gratuity here.  Secondly relieving amounts to termination of service by way of interpretation.  As advised by others, please check if there is a provision for transfer of your gratuity in the rules also.  In my opinion interpretation of relieving from service amounts to severing ties with the organisation which ultimately amounts to resignation or termination.  Unless you resign from present co. you cannot join another co.  In both options gratuity is payable.

sushil (Sr. Clerk)     05 August 2012

Mam,

Pl. find enclosed herewith Hon'ble SC judgement for your reference. If you releiving from service not for any misconduct then your employer should release your gratity payment. Also latese SC verdict says that the period counted for Gratuity is 4 years & 240 days.

 

Regards.

 

Sushil


Attached File : 776740803 gratuity.docx, 776740803 gratuity.docx downloaded: 108 times

Kumar Doab (FIN)     05 August 2012

Dear Mr. Sushil,

Kindly attach the latest "latese SC verdict says that the period counted for Gratuity is 4 years & 240 days."

It shall help many.

sushil (Sr. Clerk)     05 August 2012

 

Originally Posted by yedhulaprakash View Post
Section 4 of the Payment of Gratuity Act, 1972 provides that an employee will entitled to gratuity on completion of countinuous service of 5 years and while clarifying the 5 years complete service, Andhra Pradesh Hight Court had held that the minimum period for becoming eligible for payment of gratuity should not be less than 5 years since it should be complete 5 year service. It was further clarified that the words or part in excess of six months' are only meant for the purposes of computation of gratuity for the subsequent year or years to first complete 5 years. It was also held that if an employee has worked for 4 years 11 months and 10 days, he will not be eligible for gratuity for want of completion of 5 years. Further in a subsquent case, MADRAS HIGH COURT while relying upon the clarification by the SUPREME COURT pertaining to 240 working days in one year will be deemed to be continuous serice of one year meaning thereby that there should not be complete 12 calender months' service. MADRAS HIGH COURT has further held that an employee, who has put in service of 4 Years 10 Months and 18 Days in the 5 years, will be entitled to gratuity.

Case Ref. : Mettur Beardsell Ltd., Madras v. Regional Lab. Commissioner (Appellate Authority under Payment of Gratuity Act), Madras etc., 1998 (3) LLN 414.



Attribution: https://www.citehr.com/104526-sc-ruling-gratuity-act.html#ixzz22gpDKyJe

darshana sawant (associate consultant)     06 August 2012

I ws trying to emphasise the meaning of termination and resignation.  Applicability is not disputed

Eldho Joy (Technical)     06 August 2012

Dear Sir/Madam

Thank You for the advice and attached file.Please let me know how I should proceed further in this matter.Should I submit another application to the employer attaching this copy or approach the court(Labour court) for reddressal of my greivance?

Eldho Joy

Kumar Doab (FIN)     06 August 2012

Learned Darshana Sawant ji has explained the matter and has enriched the forum with valuable advice. Kindly go thru the post of Learned Darshana Sawant ji again, and revert.

The SC and HC Madras judgments cited are enclosed. Learned experts/members are requested to provide other judgments which are delivered after these judgments. This shall help many.

The said reply is verbal or in writing?

You may obtain the copy of rules applied in your case from the dept/state govt. If required you may adopt RTI route. Your employer and state is duty bound to provide the logic and rules for rejecting your claim.

For relief you can approach Controlling Authority which may be ALC in your case.

You may submit form I to your employer with a copy to Controlling Authority under proper acknowledgment from both.

You may approach a competent and exeprienced service lawyer/labor consultant at your location having in depth knowledge of rules applicable to your institution. If there is union in your institution it may help you.

You may go thru another interesting thread :



Discussion > Labour & Service Law > Gratuity > Clarity between gratuity eligibility service (5 or 4.8 yrs)?   Unanswered Threads Post New Topic
 

 

link:

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

 

Valuable advice from learned experts/members is sought.

 

 


Attached File : 990585990 13 13 gratuity 20 20madras 20hc 20judg 5b1 5d 1 .pdf, 990585990 surendra kumar verma etc vs the central government ... on 23 september, 1980.pdf downloaded: 73 times

darshana sawant (associate consultant)     07 August 2012

Dear mr joy,

 

Please send the demand for gratuity in form I if 30 days of your having relieved have passed.  If they still fail to comply, please make an application to the controlling authority who is the ALC of your area. Then he will issue notice to the management and the application will be disposed of in accordance with law.


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