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Eligibility for gratuity in an it organization (private ltd)

Page no : 2

Vikas Dharmendra (Consultant)     20 January 2017

If I gives/extends notice period just before one month of gratuity eligibility ( 4 years 190/240 days) stating my last day on which I am eligible for gratuity as per their version/interpretatin and if somehow employers relieves me before completing that period (4 years 240 days) paying extra on their part .

a) Then also I will be eligible and they have to do FnF settlement with gratuity?

b) What other possibiltes may be there?

 

Thanks

Vikas

Kumar Doab (FIN)     20 January 2017

You may show your appointment letter, service conditions to a very able counsel specializing in Labor/service matters for a considered opinion on your last post.

Generically speaking: If the employee has decided to retire, by resignation/notice, then the notice of resignation can not be accepted, before expiry of notice period/LWD chosen by employee.

The employer may although offer/pay notice pay in lieu of notice period.

The employee may accept or reject and demand to let him/her serve the notice period.

The employee may term such action deemed termination.

The employee may even claim Retrenchment.

The employee may even claim, artificial break so as to deny Payment of Gratuity.

 

 

Kumar Doab (FIN)     20 January 2017

Employer and/or LIC cannot behave as 'Extra Constitutional Authority', Parallel Government.

The beauty of Republic of India is unlike lawless pastures of say; Pakistan/Pakistani's, or even developed countries......................Republic of India and her citizens are governed by Constitution, Rule of Constitution.........

Everything/everyone is subservient to constitution……….

The provisions of statues, ACTs, laws shall prevail upon any private agreement……………….. 

Kumar Doab (FIN)     21 January 2017

You can download the judgment also from the following thread; https://www.lawyersclubindia.com/forum/Gratuity-eligibility-124335.asp

Vikas Dharmendra (Consultant)     22 January 2017

Thanks Kumar Doab for sharing judgement.

Andhra High Court
Kothari Industrial Corporation, ... vs Appellate Authority Under The ... on 12 September, 1997

So as per my understanding from this judgement, high court awarded gratuity(for those perioed) even the employer han't completed 240 days in year and mentions that Now Section 2-A along with sub-sections has been brought on the statute book.

hence high court interpreted that,

"The employees in both the cases fell squarely within the meaning of Section 2-A(1) of the Act and were therefore, in continuous service during those years for which they are sought to be deprived of the gratuity by the employer. It is only when the case of the employee does not fall within Section 2-A(1) of the Act, that the provisions of Section 2-A(2) come into play. The argument advanced on behalf of the petitioner that the employee had to put in 240 days of actual work in an year to entitle him to claim gratuity in that year is not a sound proposition of law in the instant case. Such is the requirement only when the case does not fall under Section 2-A(1) of the Act. Section 2-A(2) of the Act envisages a deeming fiction of continuous service under the employer (is envisaged) only when the employee is not in continuous service within the meaning of clause (1) of Section 2-A of the Act."

 

Hence I have completed 4 years 190 days of service without any interruption. hence as per section 

[2A. Continuous service] (1)  " I am in continuous service" and/or

[2A. Continuous service](2)(a)(1) "My organization works less than 6 days in week"

either/any/both section is considered I am eligible for gratuity.

 

Vikas Dharmendra (Consultant)     22 January 2017

Any Citations/Case Law,  from High Court Maharashtra explaining section [2A. Continuous service] (1)  or/and

 [2A. Continuous service](2)(a)(1) where organization works less than 6 days a week ( 5 days/Week).


 
 

Kumar Doab (FIN)     22 January 2017

All options have been discussed and you are at Liberty to choose any option that is suitable to you.

Including:  the option to withdraw notice of resignation,  and tender it again.

Including; the option to apply your own skills and succeed like many other employees succeed.

Including: to succeed with support and help of employee’s/trade unions, counsel specializing in Labor/Service matters.

 There are many threads at:

 

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

e.g;

 

https://www.lawyersclubindia.com/forum/details.asp?mod_id=111887&offset=1

https://www.lawyersclubindia.com/forum/details.asp?mod_id=111887&offset=2

 

Payment of Gratuity Act, 1972 is welfare legislation and a Statue.

Employer and LIC are under obligation to comply.

You may also go thru: another thread and one of the latest judgment cited therein:

 

https://www.lawyersclubindia.com/experts/Gratuity-521706.asp

“According to Section 2-A(2)(a)(ii), if an employee renders continuous service for a period of 240 days in a year he will be deemed to have continued in service for one year. This deeming provision contained in Section 2-A must be applied interpreting the period of five years mentioned in Section 4(1)………………………………………. The test is whether he has actually worked for the number of days in a year as provided under the Act. If he was actually employed and had actually worked for not less than the specified number of days in a year, he will be entitled to payment of gratuity under the Act.”

 

 

The discussion may continue, but finally it is your call and your decision. 

Kumar Doab (FIN)     22 January 2017

Dear LCI Author @ Mr. Vikas Dharmendra,

There are many experts from Maharashtra that have been posting at LCI and helping the querists/authors..............like;

Mr. Hemant Agarwal, Mr. Kishore Mehta, Mr. M.V.Gupta..................

You can get in touch with them and they may agree to counsel you.

 

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Kumar Doab (FIN)     22 January 2017

 

Dear LCI Author @ Mr. Vikas Dharmendra,

 

I do not permit Dhingra to comment on my comments and my posts.

Any details that I send to you are not to be shared with Dhingra.

 

It is because of years of abuse, nuisance that Dhingra has been littering at LCI.

You may go thru the threads placed by LCI under his profile.

The readers who have gone thru have known that Dhingra is abuser and have been raking disputes, fights, controversies and littering nuisance.

The experts are perfectly aware of his abuse.

He has not spared anyone:: be it querist/author/member/fellow experts.  

Yesterday also he has been stalking me from about 4.20 pm to 10pm.

He remains glued to his computer and loitering at LCI and the moment I log in he starts stalking.

Although Dhingra has been downloading and storing the highly illustrated threads, attachments, citations, ACTs, etc etc  posted by me, and storing these in his computers, and using these to allure the unsuspecting querists/authors.

 

Dhingra is NOONE and NOBODY to ask you or anyone to ask to do anything at LCI, including but not limited to asking you to question me.  

 

Kumar Doab (FIN)     24 January 2017

Dear LCI Author @ Mr. Vikas Dharmendra,

The decision given by any HC in any state on a central govt enactment is valid throught the jurisdiction of territory of India.

Still the local counseld specializing in Labor/service matters can help you with the decisions that are looking for.

 

I ma sending you details of more LCI experts specializing in Labor/service matters from your state/location.

If you wish you may take up with them also.

 

 

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