Dear Sir,

my date of joining is: 01-07-2008 & DOL is 07-12-2012 (at employer's behest)

5 days a week

3 months salary will be paid by the employer, along with leave encashment etc, as per the appointment letter.

Now, am i eligible for gratuity?

with regards,Rajesh

dear sir,

my date of joining is : 01-07-2008 and DOL is 07.12.2012 (leaving at the behest of employer)

5 days work

3 months salary as per notice period in the appointment letter is due

am i eligible for gratuity?

rds

rajesh

You have not reached the minimimum service period for claiming gratuity.Yet the employer is at liberty to pay you gratuity if there was any agreement or contract to that effect.

@ Rajesh,

Mr. Gabriel has given valuable advice. Kindly follow it.

Section: 4
Payment of gratuity.

(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.

You have posted that:

“(leaving at the behest of employer)

3 months salary as per notice period in the appointment letter is due.”

Do you mean that you have tendered notice of resignation of 3 months and employer has accepted it before the expiry of notice period? If yes you can term the acceptance unlawful, bad and ask to withdraw the acceptance and allow you to continue in office and complete the notice period, and in such a case the 3 months shall add to your period of service. Or you may accept notice pay of all three months but you may loose on period of service and hence gratuity. If employer agrees in writing by proper communication from competent authority to pay gratuity it shall be a private arrangement/agreement. However in any of such situation it should be proper to obtain FNF statement, FNF settlement and payment including that of gratuity on the spot. Later your claim may not have force in it.

It shall be appropriate to consult a labor consultant/service lawyer now and show all documents and give inputs in person and proceed under expert advice.

Or you have resigned with immediate effect on demand of employer and employer has assured you that 3 month’s notice pay shall be paid by employer to you?

If you have resigned with immediate effect without mentioning notice period or effective date of resignation/last day in office employer may deduct 3 month’s notice pay from payables to you.

Make your calculations immediately and take the right steps to safeguard your interest.

Valuable advice of learned experts/members is sought.

dear sir, thank you very much indeed for the prompt response and advise extended.

To counter my eligibility of gratuity, the firm has asked me to submit the resignation
on 7th December by accepting 3 months salary as notice period, mentioned in the appointment letter. I have not submitted my resignation yet to the firm, and asked them to forward me the FNF details. They have forwarded me the FNF details, excluding the gratuity in which i have requested them to add the gratuity and forward the FNF details again. i am not in service since 7th December, but not submitted the resgination letter also yet.

kindly advise what step i have to take in the above case. kindly also advise some labor consultants/lawyer's contact details in delhi so that i can establish a contact with them.

Regards,
Rajesh
 

Dear Mr.Rajesh,

As you have not completed 5 years of services you are not eligible for gratuity payment...

Thanks

Anisha Mittal

@ Rajesh,

You have posted that:

--“i am not in service since 7th December, but not submitted the resgination letter also yet.”

Are you not attending the office as per some orders by the competent official of the company in writing? If not it is to your disadvantage. You can be easily declared absconding by the company. Abscondment is misconduct. Company may later claim you have abandoned the job. Company may lead it to termination and deny the notice pay citing its rules on misconduct. Although company should follow the process of issuing the communications/notices/legal notice/advt etc and thus providing the opportunity of defense and natural justice. Companies are known to claim communications were sent by ordinary post/thru line manager and insert docs in personnel file.

It shall be your advantage if you mark your attendance for each day from the date of 7^th Dec, and/or get the absent from 7^th Dec adjusted by getting some written communication from company.

It is to be seen by you how you would handle it.

--“ They have forwarded me the FNF details, excluding the gratuity in which i have requested them to add the gratuity and forward the FNF details again.”

The gratuity payment …. 15 days pay/year…..shall not be big amount for the company and it can lead to win -win situation for both the parties.

Company can pay the equivalent amount under some head as well e.g. tax free ex gracia.

If company has mentioned Gratuity in your CTC sheet then you may cite it for better chances of getting the payment.

--“ the firm has asked me to submit the resignation
on 7th December by accepting 3 months salary as notice period, mentioned in the appointment letter.” And “They have forwarded me the FNF details”.

Apparently the company is inclined to settle the matter amicably without the burden of litigation, bad taste, and heartburn on either side.

Therefore you may also apply exceptional levels of reasoning, negotiation, persuasion, persistence skills and settle the matter. Remain amiable and keep the channels of communication open. Don’t loose patience and tilt the negotiations in your favor. You may have to drill sense.

If you tender the notice of resignation {if the situation arises obtain acknowledgment on copy of resignation with seal of the company from the desk where all mail/dak of company is received} with effective date of resignation/last day in office mentioned in it, under proper acknowledgment. If the company accepts it before expiry of notice period/last day in office you can agitate.

 You may find the judgment of Supreme Court of India useful

“Nand Keshwar Prasad vs Indian Farmers Fertilizers ... on 1 April, 1998

the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date.”

Another employee has initiated a very interesting thread on such a matter at the following link:

https://www.lawyersclubindia.com/forum/details.asp?mod_id=70662&offset=2#.UN22hvLZ1JI

You may go thru it.

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

https://www.lawyersclubindia.com/lawyers_search/#.UN22BPLZ1JI

Your near and dear ones can also guide you to a competent and experienced labor consultant/service lawyer.

Valuable advice of learned experts/members is sought.

Dear Mr. Kumar,

I have been working as a contrctual employee with my present company (lets say Company A) from Feb-2008. I had left company A and moved to another company (lets say Company B) in Dec-2009. I came back again to my old company (Company A) after 2 and half months (i.e. in Feb-2010). Now my questions are:

1) If I resign from my current company (company A), am I eligible for Gratuty?

2) If I am, then will the two years that I served before Dec-2009 accounted for Gartuty calculation?

Following are few more details to bring in more clarity on my situation:

a) I have the same employee ID even after joining back

b) PF has been deposited by company A for months Dec-2009, JAN-2010 even though I was not working for company A.

thanks for your advice and guidance.

Vaibhava

Did you submit resignation and did the company accept resignation?

Did you submit job application to Company B and did it issue appointment letter, salary slip, PF number, form 16 etc?

The facts mentioned by you show break in service. Thus you do not have uninterrupted service for being eligible for gratuity.

Section: 2A
Continuous service.

(1)

The company A at its discretion can decide to pay Gratuity which is reward for long service with employer.

The company can treat the period as absence without pay (without any break).

All depends upon your rapport, goodwill, approach of the management towards you.

The company can decide to disburse an amount under its power to disburse tax free Ex-Gracia, if not grauity.

Section: 4
Payment of gratuity.

(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.

Valuable advice of learned experts/members is sought.

Dear Mr.Kumar,

Yes, I submitted resignation and the company A accepted my resignation. Company B issued me appointment letter, salary slip, PF number, form 16.

So I guess, I need to complete 5 years starting from the date of joining back company A (i.e. from Feb-2010) to be eligible to receive Gratuty from Company A?

Thanks for your valuable advice and guidance.

-Vaibhava

Dear Sir,

I have joined an organization on 24 Dec 2007 and leave the same on 30th Aug 2012 (total duration 4 year 8 month 6 days). I have taken maternity leave from 10 Jan 2012 to 31 may 2012 (Total 143 days (84 days maternity leave period with basic salary , 30 days work from home  cheque of basic salary provided  by company after mat. leave joining and 29 days without salary). 

My delivery was cesarean.  So my question is: whether I will be eligible for gratuity? As I have completed 4 year 8 month (including maternity leave).  

I am confused in the 1st point of section 2A (continuous service ) and 4th point (in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.)

As I had extended by leave due to cesarean pregnancy, is it cover in continuous service? If yes then what is the meaning of point 4 and if no what is the meaning of continuous service.

 Please guide me.

Your suggestion will be highly appreciated.

Regards

Sona

It is felt that for Women Employees of State Public Sector Undertakings / Statutory Boards……the Maternity Leave has been enhanced from 90 to 180 days.

Does your company offer Parental Leave, Child Care Leave and permit it immediately after Maternity Leave? Does your company allow combining maternity leave with any other leave of any kind?

A woman entitled to maternity benefit under the Act shall also be entitled to receive from her employer a medical bonus of 3500 rupees, if no pre-natal confinement and postnatal care is provided for by the employer free of charge. The medical bonus shall be paid along with the second installment of the maternity benefit. {Section 8 & Rule 5}

The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance to the woman on production of proof that the woman is pregnant and the amount due for the subsequent period shall be paid to the woman within 48 hours of production of proof that the woman has been delivered of a child. {Section 6}

Payment of Gratuity Act, 1972

Section: 2A
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 [***] treating the absence as break in service has been passed in accordance with the standing order, 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,

Apparently you have not been absent from duty and no order has been passed by the management for break in service.

You would have been applying for leave with advice of doctor/medical certificate advising bed rest.

Female anatomy is complex and a lady risks her life while giving birth to a child. The effects on the health can be far reaching and in case of some ladies more time may be required to return to normalcy. A small mistake can adversely affect the health of the female may even render her unable to reproduce later. While employer may insist that the lady may resume duties at the earliest the lady may feel that her body does not allow it to join now and she needs some more time.

You had undergone surgery under anesthesia. You needed leave due to after effects of surgery and thereafter other/new medical disorders for which confinement/bed rest was required/you were not declared to resume duties (has your doctor written diagnosis on the prescripttions and medical certificate e.g. Lumbar spondylosis, low back pain,  …) and company has passed it. Since there was no leave balance in your record company instead chose to pass leave without pay.

“A woman suffering from illness arising out of pregnancy delivery, premature birth of child or miscarriage shall be entitled, in addition to the period of absence allowed to her under the provisions of the Act, to leave with wages at the rate of maternity benefit for a maximum period of one month. {Section 10} “Have you availed this leave of one month under Maternity Benefit Act?

You have posted that” I am confused in”.

Who has created the confusion? Has the employer declined to pay gratuity?

Section: 7
Determination of the amount of gratuity.

(1) A person who is eligible for payment of gratuity under this Act or any person authorised, 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.

(Has the employer given any notice to you and controlling authority which might be DLC at your location?)

Did you submit FormI under acknowledgment?

Has the employer declined to pay gratuity in writing in response to FormI?

If yes approach a competent and experienced labor consultant/service lawyer at your location, and show all documents, give inputs in person and spend quality time with your lawyer. Thereafter you may rake up the issue with DLC.

Valuable advice of learned experts/members is sought.

There are many threads at LCI initiated by employees and employers.Yu may find these relevant.e.g.;

https://www.lawyersclubindia.com/forum/Meternity-leave-75127.asp#.USsTO0pMe8A

https://www.lawyersclubindia.com/forum/Maternity-act-74586.asp#.USsUVkpMe8A

I receive my salary under the heads - Basic, House Rent Allowance (HRA), Transport Allowance(TA), Medical Allowance(MA) and Special Allowance(SA). 

The Form 16 appears to tax the Basic + Special Allowance. 

For the calculation of Gratuity which of these components should be included?

I receive my salary under the heads - Basic, House Rent Allowance (HRA), Transport Allowance(TA), Medical Allowance(MA) and Special Allowance(SA). 

The Form 16 appears to tax the Basic + Special Allowance. 

For the calculation of Gratuity which of these components should be included?

Reading your definition of "wages" (and thank you for your very detailed explanation) it would appear that ALL of the components mentioned above should be included in the calculation of gratuity.  Am I correct in that supposition or am I  reading too much in yiur response?

My HR people had mentioned that the Salary for the calculation of Gratuity is Rs.9823.

Completed years of service is 8 years.

Amount of Gratuity is Rs.51004.

Can u explain me how the calculation was made?