Is claim necessary for gratuity payment from employee?


Dear Sir,
 
I have not filed my gratuity claim with a Central PSU where I worked from 1991-1998 due to my ignorance.
 
The employer has not paid any gratuity payments to me so far.
 
I intend to apply for the gratuity payment now.
 
I found in your website that an employee is liable to pay gratuity even if an employee does not apply for it within 30 days. Will penal interest be applicable otherwise?
 
Is there any rules/rulings in support of it?
 
Thanking you and expecting your reply,
 
Yours sincerely,
R. GANESAN.
 
Reply   
 
Advocate

Send notice in form "I" and file the case with jurisditional Assistant commissioner of Labour

 
Reply   
 


lawyer

You should file application claiming gratuity before the Controlling Authory under the Payment of Wages Act alongwith application for condonation of delay. In the application you can claim simple interst at the rate of 10% from the date it become du to tll actual payment is made..


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Reply   
 
ADVOCATE

Dear Friend  

It is not mandatory for employee to apply his gratuity in form -I.  it is the duty of employer that to make payment of gratuity within 30 days of retirement/supernuation or otherwise termination of services. in this regard please find hereunder  a ruling of Hon'ble High Court Judicature at Allahabad, Lucknow Bench, which is very clear itself.

Thanks,

Avinash Pandey

 

 

Court No.22

 

Writ Petition No.2841 (M/S) of 2008

 

Organic Fertilizers                                                                                 Petitioner

 

Versus

 

Assistant Labour Commissioner (Controlling Authority)

 

and another                                                                                             Opp. Parties

 

-------------

 

Hon'ble S.S. Chauhan, J.

 

Heard learned counsel for the petitioner and learned counsel for the opposite parties.

 

The present petition has been filed challenging the order dated 31.3.2008 passed by the opposite  party no.1 in Case No.31 of 2006 under the Payment of Gratuity Act, 1972. (for short the 'Act').

 

Submission  of  learned  counsel  for  the  petitioner  is  that  petitioner  has challenged the age of retirement and, therefore, unless and until the said retirement age is determined the payment of gratuity cannot be made. It is also submitted that gratuity  is  liable  to  be  paid  to  opposite  party  no.2  only  when  full  and  final settlement between the parties is settled finally. Hence, the impugned order cannot be sustained in law and is liable to be quashed.

 

Learned counsel for the opposite parties, on the other hand, has submitted that the impugned order cannot be faulted in any manner and moreover the opposite party no.2 is entitled for payment of gratuity in accordance with the provisions of Section 7 of the Act. He has further submitted that employer is able to release the gratuity amount in accordance with the years of service rendered by the employee. It is also submitted that identical controversy has been decided by this Court by way of Writ Petition No.  2919 (M/S) of 2008, Organic Fertilizers vs. Assistant Labour  Commissioner  (Controlling  Authority)   and  another  and  this   Court considering the argument of counsel for the petitioner has proceeded to uphold the order of payment of gratuity.

 

I have heard learned counsel for the parties and gone through the record.

 

This Court while adjudicating the identical controversy in respect to another employee in Writ  Petition No.2919 (M/S) of 2008 has proceeded to decide the matter in the following terms:

 

A bare perusal of provisions of Section 7 of the Payment of Gratuity Act, 1972 reveals that employer is under duty to prepare the gratuity and given notice in writing to the employee. Though the


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employee  is  also  under  obligation  to  submit  the  Form-I  as prescribed,  which   requires  certain  informations  unless  certain informations as are required, are  received to the employer, it is difficult for the employer to ascertain the facts and pay the gratuity as is demanded. Overall, it is not disputed that after retirement, the gratuity is payable to the employee. Therefore, I hereby observe that the petitioner shall extent the benefit of the gratuity to the opposite party no.2 as per order passed by the Prescribed Authority. So far as the interest is concerned, I do not find any error in the  direction issued by the authorities concerned as only the direction has been issued to pay the interest w.e.f. the institution of the case till the date of decision. The petitioner shall pay the gratuity irrespective of the case pending before the Labour Court regarding the dispute of age of retirement. Learned counsel for the petitioner  complaints that even after the retirement, the respondent has retaining the quarter without payment of rent etc. Learned counsel for the opposite party no.2 undertakes that as soon as the gratuity along with interest is paid, the opposite party no.2 shall vacate the quarter, considering which, in the interest of justice, I hereby provide that as soon as the amount  of  gratuity  along  with  interest  is  paid,  the  contesting respondent shall vacate the quarter forthwith. It is further provided that the petitioner shall be at liberty to deduct the amount of rent from the amounts which are payable against the gratuity.

 

From the above judgment, it is clear that the claim of payment of gratuity has been accepted by this Court and the said order has become final. So far the question of age of retirement is concerned, that will be considered in accordance with law and if the claim of the opposite aprty no.2 is allowed, then consequences will follow in accordance with law.

 

I am in full agreement with the judgment rendered in Writ Petition No.2919 (M/S) of 2008. In this case there is no question in regard to payment of rent and so the direction issued in the aforesaid case  shall not be applicable in the present case to that extent.

 

Petition is devoid of merit. It is accordingly dismissed.

 

 

 

23.11.2009

Rao/-


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Reply   
 
ADVOCATE

Dear Friend  

It is not mandatory for employee to apply his gratuity in form -I.  it is the duty of employer that to make payment of gratuity within 30 days of retirement/supernuation or otherwise termination of services. in this regard please find hereunder  a ruling of Hon'ble High Court Judicature at Allahabad, Lucknow Bench, which is very clear itself.

Thanks,

Avinash Pandey

 

 

Court No.22

 

Writ Petition No.2841 (M/S) of 2008

 

Organic Fertilizers                                                                                 Petitioner

 

Versus

 

Assistant Labour Commissioner (Controlling Authority)

 

and another                                                                                             Opp. Parties

 

-------------

 

Hon'ble S.S. Chauhan, J.

 

Heard learned counsel for the petitioner and learned counsel for the opposite parties.

 

The present petition has been filed challenging the order dated 31.3.2008 passed by the opposite  party no.1 in Case No.31 of 2006 under the Payment of Gratuity Act, 1972. (for short the 'Act').

 

Submission  of  learned  counsel  for  the  petitioner  is  that  petitioner  has challenged the age of retirement and, therefore, unless and until the said retirement age is determined the payment of gratuity cannot be made. It is also submitted that gratuity  is  liable  to  be  paid  to  opposite  party  no.2  only  when  full  and  final settlement between the parties is settled finally. Hence, the impugned order cannot be sustained in law and is liable to be quashed.

 

Learned counsel for the opposite parties, on the other hand, has submitted that the impugned order cannot be faulted in any manner and moreover the opposite party no.2 is entitled for payment of gratuity in accordance with the provisions of Section 7 of the Act. He has further submitted that employer is able to release the gratuity amount in accordance with the years of service rendered by the employee. It is also submitted that identical controversy has been decided by this Court by way of Writ Petition No.  2919 (M/S) of 2008, Organic Fertilizers vs. Assistant Labour  Commissioner  (Controlling  Authority)   and  another  and  this   Court considering the argument of counsel for the petitioner has proceeded to uphold the order of payment of gratuity.

 

I have heard learned counsel for the parties and gone through the record.

 

This Court while adjudicating the identical controversy in respect to another employee in Writ  Petition No.2919 (M/S) of 2008 has proceeded to decide the matter in the following terms:

 

A bare perusal of provisions of Section 7 of the Payment of Gratuity Act, 1972 reveals that employer is under duty to prepare the gratuity and given notice in writing to the employee. Though the


-2-

 

employee  is  also  under  obligation  to  submit  the  Form-I  as prescribed,  which   requires  certain  informations  unless  certain informations as are required, are  received to the employer, it is difficult for the employer to ascertain the facts and pay the gratuity as is demanded. Overall, it is not disputed that after retirement, the gratuity is payable to the employee. Therefore, I hereby observe that the petitioner shall extent the benefit of the gratuity to the opposite party no.2 as per order passed by the Prescribed Authority. So far as the interest is concerned, I do not find any error in the  direction issued by the authorities concerned as only the direction has been issued to pay the interest w.e.f. the institution of the case till the date of decision. The petitioner shall pay the gratuity irrespective of the case pending before the Labour Court regarding the dispute of age of retirement. Learned counsel for the petitioner  complaints that even after the retirement, the respondent has retaining the quarter without payment of rent etc. Learned counsel for the opposite party no.2 undertakes that as soon as the gratuity along with interest is paid, the opposite party no.2 shall vacate the quarter, considering which, in the interest of justice, I hereby provide that as soon as the amount  of  gratuity  along  with  interest  is  paid,  the  contesting respondent shall vacate the quarter forthwith. It is further provided that the petitioner shall be at liberty to deduct the amount of rent from the amounts which are payable against the gratuity.

 

From the above judgment, it is clear that the claim of payment of gratuity has been accepted by this Court and the said order has become final. So far the question of age of retirement is concerned, that will be considered in accordance with law and if the claim of the opposite aprty no.2 is allowed, then consequences will follow in accordance with law.

 

I am in full agreement with the judgment rendered in Writ Petition No.2919 (M/S) of 2008. In this case there is no question in regard to payment of rent and so the direction issued in the aforesaid case  shall not be applicable in the present case to that extent.

 

Petition is devoid of merit. It is accordingly dismissed.

 

 

 

23.11.2009

Rao/-


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Reply   
 
lawyer

Dear Avinash,

You are right, it is duty of the employer to pay gratuity within stipulated period. In case, employee fails to claim, it duty of the employer to calculate and deposit the same with the Controlling Authority. But in case, employer does not act accordingly, the employee has only option to apply for the same fore the Controlling Authority. However, I am greatful to you for providing the judgment. I was in acute need of any citation in this regard as I have to file a writ. Many many thanks.


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Reply   
 

Dear Sir,

 

Does the act says that the employee has to deposit the gratuity dues with the controlling authority.

 

Pl. exactly quote the section for my benefit.

 

Thanks for your replies and judgement quote.

 

Yours sincerely,

R. GANESAN.

 
Reply   
 
lawyer

The obligation of  employers to deposit the gratuity amount is inferred from section of of the Act, which is as followss

 

Section: 6
Nomination.

(1) Each employee, who has completed one year of service, shall make, within such time, in such form and in such manner, as may be prescribed, nomination for the Purpose of' the second proviso to sub-section (1) of section 4.

(2) An employee may, in his nomination, distribute the amount of gratuity payable to him under this Act amongst more than one nominee.

(3) If an employee has a family at the time of' making a nomination, the nomination shall be made in favour of one or more members of his family, and any nomination made by such employee in favour of a person who is not a member of his family, shall be void.

(4) If at the time of making a nomination the employee has no family, the nomination may be made in favour of any person or persons but if the employee subsequently acquires a family, such nomination shall forthwith become invalid and the employee shall make, within such time as may be prescribed, afresh nomination in favour of one or more members of his family.

(5) A nomination may, subject to the provisions of sub-sections (3) and (4), be modified by an employee at any time, after giving to his employer a written notice in such form and in such manner as may be prescribed, of his intention to do so.

(6) If a nominee predeceases the employee, the interest of the nominee shall revert to the employee who shall make a fresh nomination, in the prescribed form, in respect of such interest.

(7) Every nomination, fresh nomination or alteration of nomination, as the case may be, shall be sent by the employee to his employer, who shall keep the same in his safe custody.

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.

(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.

(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify:

Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.]

(4)

(a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.

(b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.]

(c)] The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.]

(d)The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto.

(e)As soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit -

(i) to the applicant where he is the employee; or

(ii) where the applicant is not the employee, to the nominee or, as the case may be, the guardian of such nominee or] heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity.

(5) For the purpose of conducting an inquiry under sub-section (4), the controlling authority shall have the same powers as are vested in a court, while trying a suit, under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely :

(a) enforcing the attendance of any person or examining him on oath;

(b) requiring the discovery and production of documents,

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses.

(6) Any inquiry under this section shall be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code, 1860 (45 of 1860).

(7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf:

Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days.

Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under subsection (4), or deposits with the appellate authority such amount.]

(8) The appropriate Government or the appellate authority, as the case may be, may, after giving the parties to the appeal a reasonable opportunity of being heard, confirm, modify or reverse the decision of the controlling authority.


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labour enforcement officer (central)

If the company has not paid you the Gratuity, within 30 days of your leaving/resigning/retiring from the company, you may prefer your claim before the Assisstant Labour Commissioner (Central) in charge of the territory, wherein your copany (CPSU) is located.  In your case, the Assistant Labour Commissioner (Central) of the area is the Controlling Authority under PG Act and the Regional Labour Commissioner (Central) of the Region , would be the Appellate authority.

 
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Company transfered to place where company do not have establisment operating from home and company denied future estsblishment for last 2 yrs.

I was keep asking for GM-marketing & lower staff also company infrastructure.. But management replied no support will be given.

At last... after 2 yrs mental & physical harassment (my opinion)and salary reduction by LOP on a/c non reciept of daily work reports by post for many months without giving valid reasons....it seems daily reports sent by personal ID emails are not considered as leagal document as attendance (note,: Intialy on Manger post many months mail reports are recognized as attendance )

 

In last March 16, some officer came to cross check my work in NE region of India & he was trying to find mistake to charge sheet me & threatened to sign wrong report.. but I denied & vacated the place by sending mail for official reason(the official reason is management is not provided GM-marketing position status & supporting infrastructure).

 

Since last March16, I was not reported to duty irrespective of many reminder letters from company (As I was mentally dippressed at age of 52 &I have medical certificate from doctor& GM-marketing has given in writing that any kind of leaves will not be sanctioned,even earlier sick leaves are not sanctioned.

 

Now in January 16 company HRD has applied appointment letter clause I.e

"Any employee is absent from duty without senior approval for 10 days,it is considered as self termination "

 

So company settled my dues the way they want .I.e..March16,salary was paid in January16 and gratuity amount check received late.

Company has taken decision without conducting enquiry/chargesheet/suspension etc,with mear clause of appointment letter & settled my a/c( I have signed the appointment letter as token of reciept no legal bond is signed)

 

Now I in privet job market as engineer of 25yrs experience & 2 years experience in pharmaceutical medicine marketing.. So industry is not accepting as a engineer or experienced marketing- GM.

 

This company has ruined my next 8 yrs of career ,now in pvt job market neither experienced engineer nor Hard core Marketing person.

Note:

For the last 8 yrs I have clean records in company book but I was due for promotion.

The above information is not binded leagaly as company is public sector unit under ministry of chemical & fertilizer,may be right in taking decions as per rules & I don't know the company standing order/CDA rules.

"The abv appointment letter clauses would applied by company,after 10 days of myself joined duty in Guwathi,as company do not have any infrastructure for attendance system"..?

 

Request all expert to advice on grounds to get relief in HC/SC or CAT.

Regards

 
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