AKudva (Manager) 29 May 2014

Gratuity elligibility

hi,

I had a query about my previous job.

I was working with a PVT company

Date of Joining: 17 Jun 2005

Date of Leaving: 30 Jun 2010

However, my last two months was unpaid leave of absence. My last drawn salary was till 31-Mar-2010. Which makes my total paid employment of 4 years 287 days.

I also has leave of 35 days which was encashed when I left. Hence, total is 4 years 322 days counting leave.

At the time of my leaving, I was told that I am inelligible for gratuity as paid service was less than 5 years. However, later I came across this site where I saw the Supreme Court judgement of 4 years 240 days.

i wrote back to my employer and the response I got is:

" You are right as you had not completed 5 years at the time of leaving hence you were not eligible for gratuity. We are not governed by Gratuity Rules.

The Firm has kept the internal policy for payment of gratuity and it is Pay as you Go basis."

is this correct? can a company claim to be not governed by Gratuity rules? they definite employed more than 15 employees when I quit in India.

also, now it is almost 4 years since my resignation, if eligible can I still claim gratuity and how?

thanks

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1 Replies

Kumar Doab (FIN) 29 May 2014

Payment of Gratuity Act:1972: Sec: 1(3) (b)(c)(3A), 2(a)(s), 2A (1),2 (a)(i) (ii) (b) (i) (ii), 4(2)(5), 7, 7A,8,9

Formulae for calculation:

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

Basic+DA as per last drawn salary.

Ina year if you have worked for >6M you may count it as 1Y.

Sec;2A was inserted after the said Supreme court judgment, and it is self explanatory and ends all speculations.

Sec;2A (2) shall come into play after Sec: 2A(1)

The unpaid leave shall also be counted in service if it is approved and company has not caused break in service by its standing orders.

You may count period of service from DOJ to DOL.

If company has made false statement in writing as posted by you then you may 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 employee can claim Gratuity anytime in his lifetime and after his demise nominee/legal heir can stake their claim.

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 the establishment does not have offices in many states then appropriate govt. in your case may be state. The Inspector appointed under this Act, DLC-Gratuity, O/O Labor Commissioner can help, guide you and provide details. You can pursue RTI route if you ant and if required.

You may show all docs on record and give inputs to a labor consultant/service lawyer and proceed under expert advice of the lawyer. The lawyer that has examined all docs can advice you the best.

Attached File : 946246970 paymentofgratuityact(1).doc, 946246970 form i gratuity9.pdf downloaded: 175 times