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Prashant Sinha (asdsfr)     11 July 2013

Gratuity

Dear Sir,

I have served the company for 6.5 years. Inspite of my repeated reminders to them since last NINE months I have not yet received my Gratuity amount. The HR dept says that speak to the owner directly. I tried but in vain. I have been sending repeated mails to HR dept and owner since last NINE months. All mail copies are with me.

I need your advice on this matter

Thanks and Regards

Prashant Sinha



Learning

 12 Replies

Kumar Doab (FIN)     11 July 2013

What was  the need and logic for remaining entangled with HR for 9 months.............

 

Submit FormI as ap. Later you may have another burden of getting the delay condoned.

Although the company has defaulted as per Payment of Gratuity Act Section7 (2) (3)…

{It is for sure that if company has not determined the amount of gratuity and given notice to you it would not have submitted to Controlling Authority as well and the  authority won’t state that notice was received in its office. You may peruse the RTI route if required.}

 

Section: 7: Determination of the amount of gratuity: 
(1) A person who is eligible for payment of gratuity under this Act or any person authorized, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such 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.

 Bring the attention of HR and Owner both to the word ‘WHOEVER’ in Section 9:

{ If the owner gets prosecuted he would most probably cite that the necessary notice or processing is to be done by concerned personnel in HR}

Section: 9
Penalties.

(1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.

(2) An employer who contravenes, or makes default in complying with, any of the provisions of this Act or any rule or order made there under shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year, or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both:

 

 


Attached File : 798696635 paymentofgratuityact(1).doc downloaded: 100 times
1 Like

H.S.ACHARYA (Project Logistics Advisor )     11 July 2013

Is Gratuity payable after retiement age if person is allowed to work for another 5 years or more? Also whether retired person to be paid notice pay if company wants to remove him?

Prashant Sinha (asdsfr)     11 July 2013

Sir,

I have already submitted FORM 'I' on 10.12.2012 through courier and mail.  One HR personnel says that he has already submitted my requisite documents to the owner and till the owner doesn't clears he can't do anything. 

Since then (approx 15.12.2012) I have been sending reminder mails to owner and HR deptt. One day again I spoke to HR personnel and again I received the same response. 

Thanks and Regards

Prashant Sinha

Kumar Doab (FIN)     11 July 2013

Regd post should be used.Obtain POD from courier or download from its website.Record the call when acknowledgment is stated by HR.Submit minutes of all representations and mention date time of each call, emails, names of HR personnel and conclude that Form I has already been supplied on dated and its receipt is confirmed by  Mr.............designation........... dept............on dated.............and you have been clamoring to get the payment and the DD should be supplied within next ..............days. If the company does not respond you have the option to approach your lawyer for issuing legal notice & to approach controlling authority.

Adv k . mahesh (advocate)     11 July 2013

after work of more than 6.5 you are not able to get your grautity from the boss to whom you were so much effiicient and honest (by your words) even after nine months you are not being paid by your preious boss and you are raoming (just i saw yesterday r u using paragon chappels ) :)

as of now you should have know the procedure but you are unable to solve your problem if you want to take extreme step then immedietely consult a lawyer and take his advice normally he will draft a letter with all the details and the amount you would be receiving and sending to the office mentioning of 15 days time if they thus not settle will take legal action after that he will send a legal notice this is a formal letter and see the result 

1 Like

Sudhir Kumar, Advocate (Advocate)     12 July 2013

मैं महोदय कुमार दोआब व के. महेश से सहमति रखता हूं

joseph (nil)     13 July 2013

Dear Expert

 

i was appointed on contract basis for one year in a psu in 1984. after it one it got extended several times but without any break in my service. i was regularised in this psu  on 1st august 1990 although my contract period was expiring on 31st august 1990. I am still working in this psu. but this psu is  considerting my case for gratuity from august 1990 but not from my initial joining of 1984. from november 1984 till date i am continuing in this psu without any break. the management says as per the gratuity scheme of this psu casual /contract employees are not eligible for gratuity. sir,  as far as my limited knowledge anyone who renders 5 years of continuous service is eligible for gratuity as per gratuity act. Is there any special gratuity scheme for each psu or are they governed by gratuity act of india. Sir, Am i elgible for my gratuity of my contract period  from 1984 to 1990. if so where should i put my grievance. kindly advice

with best regards

joseph

Kumar Doab (FIN)     14 July 2013

@ Joseph,

Always start a new thread.

-----Payment of Gratuity Act, 1972

Section: 2: Definitions.

(e) "employee" means any person (other than an apprentice) employed on wages, ………………………………

 but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity].

Thus if employee is not appointed as apprentice under Apprenticeship Act uninterrupted service of 5 years as per provisions in Sec 2A, should make employee eligible for payment of Gratuity.

------You have posted that:

the management says as per the gratuity scheme of this psu casual /contract employees are not eligible for gratuity. “

You may download/obtain printed version of Gratuity Rules of the PSU and refer to it.

If these are not available on employee/HR portal you may peruse thru the concerned personnel of the company who is custodian of such rules or RTI route, and show it to a competent and experienced labor consultant /service lawyer.

In case the matter is not resolved to the satisfaction the Trustees ( if the PSU Gratuity is managed  by a trust) appropriate government as described in Sec 2 (a) and controlling authority as in Sec 2 (d) may be approached.

The employee’s trade unions are sensitive to such matters and can be approached.

 

Valuable advice of learned experts/members is sought.

Kumar Doab (FIN)     14 July 2013

@ H.S. Acharya,

Always start a new thread.

Gratuity:

Section: 2 :Definitions.

(e) "employee" means any person (other than an apprentice) employed on wages, ………………………………

 but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity].

{Thus if employee is not appointed as apprentice under Apprenticeship Act uninterrupted service of 5 years as per provisions in Sec 2A, should make employee eligible for payment of Gratuity. If employer has been issuing contracts with artificial breaks to circumvent the payment of statutory benefits e.g. Gratuity which is a social security tool also, employee may approach the controlling authority for relief and addressal.}

(q) "retirement" means termination of the service of an employee otherwise than on superannuation;

[8] [(r) "superannuation", in relation to an employee, means the attainment by the employee of such age as is fixed in the contract or conditions of service at the age on the attainment of which the employee shall vacate the employment;]

 

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

(3) The amount of gratuity payable to an employee shall not exceed three lakhs and fifty thousand] rupees.

{This limit has been enhanced to Rs.10 Lacs. The limit stands for payment received from one or multiple employers. Above it employer may pay and subject the additional amounts to tax treatment.}

(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.

{The employer can certainly provide additional payment or better terms.}

{In practice companies settle all a/c’s of employee including gratuity, at the age of superannuation as stated in standing orders of the company. Thereafter company might issue appointment as contractual/FTC basis. Such employees are also eligible for the payment of gratuity if they have rendered uninterrupted service of 5 years as per provisions in Sec 2A}

Notice Period/Pay:

It is the penalty inserted as liquidated damages inserted in contract of employment which one party which has breached the terms of contract, pays to another…………….

Service condition are stated in the certified standing orders (CSO) of the company, appointment letter issued by it……………………………….Notice period/pay is part of service conditions and is stated in CSO, appointment letter ……………………If company has its CSO extended to your designation and notice period/pay is stated in CSO as 2months  it can not be 1 month in appointment letter…………………….The service conditions stated in CSO can not be negated to employee in appointment letter.

If notice period/pay is stated in CSO/appointment letter/contract of employment, it is applicable to both employer/employee.

Notice period/pay is also stated in Shops and Establishments Act of the state and thus should apply to establishments covered by this enactment.

Notice period is also stated in IESO Act/Model Standing orders. Thus if establishment is covered and standing orders are extended to the designation of the employee, notice period/pay is applicable…………………….

Jignesh (Proprietor)     14 July 2013

I was working with a Limited company for 2 years & 11 months as a permanent employee. Gratuity was a part of my committed CTC. Could you pls. let me know if i am eligible to claim the gratuity as it was a part of my committed CTC from the company.

Prashant Sinha (asdsfr)     07 August 2013

Dear Sir,

Unfortunately, while speaking to some lawyers here, they are not taking interest in this matter. Would like to request if any learned experts/member lawyer can help me out.

Kind Regards

Prashant Sinha

 

 

Kumar Doab (FIN)     07 August 2013

If you wish to avail the services of LCI lawyer you can conduct search at:

https://www.lawyersclubindia.com/lawyers_search/#.UgIGItKAqWM

The related lawyers list being flasshed by LCI on the bottom of this web page.
You can access Pro Lawyers.

Your near and dear ones can also guide you to a competent and experienced lawyer.


The experts and seniors can also guide you to a lawyer.

 

The lawyer in your neighborhood can also help you.

 

You may approach controlling Authority of Gratuity ( Dy. Labor Commissioner- Gratuity) at your location with copy of the FormI, its POD, and detail of all communications you have exchanged by phone, email, letters, in person……

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