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Joydev Kalita (Software Engineer)     07 June 2014

Gratuity eligibility - confusion with working days

Hi,

I work for a private software firm based in Bangalore working 5 days a week. My joining date with this firm is 21st December 2009 and my last working day will be 28th July 2014. So my continuous period of service will be 4 years and 220 days. Hence accordingly I am eligible to get Gratuity payment.

My company says that any employee who works for 4 years & 190 calendar days is eligible for Gratuity payment. This is present in my offer letter too.

But when I asked the HRs of my company, they said the continuous service calculation will be done basis on 4 years and 190 working days. So if I have to calculate on basis of working days then it will be obviously less than 190 days. Hence I am not eligible for the Gratuity payment.

Do I have any say here ? Can I challenge my company saying that it can not be working days alone basis on which I will be eligible for the gratuity payment ?

Experts please provide your inputs.

-- Joydev



Learning

 18 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     07 June 2014

190 days, in case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week , and 

240 days, in any other case

As per the definition in  Gratuity Act, 240 days of service should be considered as one year of continuous service. 

Kumar Doab (FIN)     07 June 2014

All paid off days/holidays/approved leave/lay off days/legal strike days etc all are considered days worked and is counted in period of service. The continuous service is uninterrupted service and is well defined in the Act.

Is the statement of HR in writing or have you recorded the response (audio/visual)?

If NO you should.

Don’t remain entangled in verbal transactions.

Saying and telling is not on record until it is record (audio/visual) or you have irrefutable witness, evidence.

Submit a written representation narrating all previous representations (mention names, dates, brief minutes……………………) and conclude despite so many representations notice of determination of Gratuity and payment was not supplied to you and on dated……………………….Mr/Ms…………………..has declined to make the payment of Gratuity?

 

 

You may submit FormI under proper acknowledgment preferably by redg. post and obtain POD and certified copy of runs sheet of postman from PO.

 

If company makes false statement verbally record it (audio/visual) or Let company decline in writing.

If you have evidence You can put emphasis on word’ Whoever’ in Sec;9 and provision of penalty, punishment with imprisonment.

 

 

If company has made false statement about applicability of the Act to it and has denied payment then it shall have to pay interest @10%p.a. for delayed period. 

 

The HR personnel or for that matter even employer himself can not assign a personal/private/internal interpretation to the Act/enactment/law………………

The private/internal policies of the  employer are not and can not be law unto itself.

You may draw the attention of the designated HR personnel to the Sec:2{(b) [2] [(c)}, 2A {(1), (2)(a)(i)(ii),(b) (i) (ii)}……………………………….and also to word’ WHOEVER’ IN Sec:9 and the award of penalty, punishment with imprisonment

There are many threads on similar queries at:

https://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.U43E6UeBmXU

e.g:
https://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp#.U43FBkeBmXU

 

The formulae for calculation is  

{( Basic+DA)/26*15*No. of years in service}

Basic+DA as per last drawn salary.

In one  year you have worked for >6M you may count it as 1Y.

 

 

IN this formulae the figure 26 is taken to arrive at one day wages…………………..only, of a monthly rated employee!

If you can't handle the matter on your own entrust it your Labor Consultant/Service lawyer.

Since you are anticipating a dispute consult your Labor Consultant/Service lawyer NOW and let your lawyer draft your representations.

The payment of Gratuity Act is attached, the latest version should be available on the dept. of labor website of your state or you can buy from market.

If you are member of employee's union, trade union the well informed leaders can also help you.

 

The Trade Unions: e.g CITU, INTUC, BMS, AITUC…………………………. have been attempting to unite employees from your sector and willing to embrace employees from your sector.

The employees unions can form ‘Works Committees’ in companies and the Chairman is on rotation from employees/employer, and has equal number of members from employees/employer……………………

 

‘Works Committees’ is an authority as in ID Act…………………………………and employees/unions can negotiate service conditions with employer………………………….

The Industrial Disputes Act, 1947

CHAPTER II: AUTHORITIES UNDER THIS ACT

3. Works Committee

 

This is precisely what employees in your sector should strive for.

 

Unions in your state have done a good job.

 

The employees in your sector have formed many unions and they have done good job too.

https://www.itecentre.co.in/

https://ithiworld.wikispaces.com/News+Update

IT/BPO Voice of India | Facebook

UNITES Professionals

www.unitespro.org

https://www.wbitsa.org/

www.itpfindia.org/

https://itnitesunion.wordpress.com/author/itnitesunion/

 

 

Shiv Mahiti Ani Tantradyan Sena(Shiv IT SENA)

mankar.janardan@gmail.com


https://www.shivsena.org

 

 

 

https://www.amrc.org.hk/node/1088         CBPOP

https://www.freepatentsonline.com/article/Indian-Journal-Industrial-Relations/185430721.html

https://bpo.knowledgehills.com/Directory/BPO-Jobs/CBPOP-Centre-for-BPO-Professionals.aspx

 

 

https://www.dnaindia.com/mumbai/report-shiv-sena-forms-first-union-in-information-technology-sector-1465435

Shiv Sena forms first union in information technology sector

 

 


Attached File : 295497743 paymentofgratuityact(1).doc, 295497743 list of labor officials in banglore.doc, 295497743 trade unions in karnataka.doc downloaded: 270 times

Joydev Kalita (Software Engineer)     07 June 2014

@Kumar Doab

Hello Sir,

Thanks a lot for the precious information. Really appreciate it!

Actually our HR is neither accepting nor denying the eligible calculation of my gratuity period.

The HR is simply saying if somebody has worked for continuous 4 years and 190 working days,  then gratuity payment is feasible. But they are putting stress on working days. 

Till now I have asked 4 times via our internal ticketing portal for handling internal employee cases. All of the same time the answer is vague as stated above.

So next, I am going to raise a ticket once more asking what all days are included in the working days. If they say Saturday, Sunday, National Holidays & Paid/Sick Leaves (as I have availed only these kind of holidays) then I need to point them to Scetion 2A of Gratuity Act.

I have a doubt here, please answer me with facts from the Act perspective. I do see 'leave' mentioned in Continuous service under Section 2A, but I do not see  'Saturday/Sunday' or 'National Holidays'.

Need your advice in this regard, as I need to retaliate to the HR department if they ask me the same question.

-- Joydev

Kumar Doab (FIN)     07 June 2014

Download and print all internal tickets raised by you and response of HR even if vague.

This is your personal matter and can be sent from personal email id however should be submitted preferably by redg. post addressed to appointing authority,MD...........................

The employee that has tendered notice of resignation can submit FormI one month before date of retirement (by resignation in your case)...............................of course under proper acknowledgment.

You may submit FormI under proper acknowledgment.

IN a week employee is eligible for rest.................................and in your company by its own choice it has kept 5days/week working days..........................all weekly off days and holidays/national Holidays are paid days...........................................

All paid days/approved leave is counted in service.

If the need be don't hesitate to approach local labor consultant/service lawyer in person.

T. Kalaiselvan, Advocate (Advocate)     07 June 2014

Well advised by expert Mr.Kumar Doab on the subject issue.  Thus, it is always better to have them recorded so that any dispute on it can be handled with evidences thus gathered.  It is still long time to go, why are you worried so soon about this, you can fight for it only when you become due for it and have been denied your rights. 

Kumar Doab (FIN)     08 June 2014

Submit FormI One month before Date of retirement/ OR Later as suitable to your aptitude......................under proper acknowledgment.

The employer has tender payment within 30 days even if employee has not made any application,  or has to pay interest@10%pa.

The employee can submit application anytime in life time and after him his Nominee's/Legal heir can do so......................................

The similar query has been discussed and you may go thru these at link's mentioned in previous post................

You can always approach a local lawyer.....................well versed with such matters.

Joydev Kalita (Software Engineer)     09 June 2014

@Kumar Doab

Thank you Sir, will do as u said. I will consult if any conflict happens in coming days.

PRATHYUSH (Test Engineer)     07 January 2015

Dear Sir, 

 

My name is Prathyush and working in private software company.I joined this company on 7th July 2010. I am working regularly in this company. This company has 5 days working in a week. Now I am in Notice Period and my releaving date from this  organization is on 27th Feb 2015. Will I entitle for gratuity/eligible after working above time period ?.

Kumar Doab (FIN)     07 January 2015

@ Prathyush,

 

This has already answered in this thread..........

 

The employees who persist are able to get their matters resolved.

 

You may go thru:

 

 

https://www.lawyersclubindia.com/forum/Gratuity-eligibility-5-years-or-4-years-240-days-111887.asp

 

 

The employee got the Gratuity payment with interest @10%pa for the delayed period......

 

 

The issue has been discussed in detail at another thread too, at:

 

 

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

PRATHYUSH (Test Engineer)     08 January 2015

@Kumar Doab

 

Thank you for the clarification Sir,

 

I have checked with the HR Depart ment in my company they are telling that Employee completed 4 year and 240 days is eligible for the Gratuity .

 

But by this 27th Feb 2015 i will complete just 4 year and 235 Days in this company (continuous Service) ..

 

I read in this above link that for companies working 5 days in a week ,then the gartuity eligibility is 4 year and 190 days . 

 

so I am eligible for the Gratuity as per the Rule . but as per company policy it is 4 year and 240 days so please suggest whether regarding this company can denie my appeal ?

 

 

 

 

Kumar Doab (FIN)     08 January 2015

 The Payment of Gratuity Act and relevant sections (for 190 days), FormI, example of the employees that have succeeded………………. the  provision of penalty, punishment with jail time for ‘Whoever’ contravenes the provisions of this Act………. has already been cited and attached in this and other threads suggested to you. 

 

Employee can submit FormI (for payment of Gratuity) 30 days before retirement by resignation, of course under proper acknowledgment preferably by Redg. Post…………hence you can also submit it.

 

Let the designated and competent personnel (even if HR person) reply that they shall consider only if employee has completed service period of 240 days in 5th year…….even if by email.

The employer has to supply the notice of determination of Gratuity and payment of Gratuity within 30 days or tender interest @10%pa……   

 

The employee can withdraw notice/resignation before expiry of notice tendered BY EMPLOYEE, and even after expiry of notice period but before the resignation is accepted…..

 

The employee should negotiate properly with next employer and ask to buy all the losses that employee shall suffer by joining on the date preferred by next employer e.g. notice period, Gratuity etc without any conditions and should be paid on the date of joining…….and must learn how to negotiate.. 

 

 

You may choose whatever suits you and proceed further as deemed fit at your end…     

1 Like

Abhinav (Manager)     15 April 2015

Hi Joydev, Prathyush

So did you get your gratuity after serving a period of 4 years and 190 days or you had to stay for 240 days? I am in the same boat and cannot serve 240 days so any help will be appreciated.

Thanks

Abhinav

Abhinav (Manager)     15 April 2015

@Kumar Doab

 

Mr. Kumar, in the Andhra court case, the honourable court already mentions that there is no doubt that employee has served for more than 5 years. I don't think it can be compared to the case for people serving only 4Y190 days, please advise.

 

Thanks

 

Abhinav

Kumar Doab (FIN)     15 April 2015

Payment of Gratuity Act is  statue.

Sec:2A was inserted in Payment of Gratuity Act by gazette notification.

There can be now no contradiction on the provision of the Act.

 

You may download the latest judgments including the latest one e.g. by Chhattisgarh high court from various threads at the link given above.   


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