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Vikram   05 February 2017

Not given application in form l for 7 years

My mother in law worked as a lecturer from 1980 to 2010 in a college managed by a meera college siksha samiti. after retirement at the age of 60 in 2010, she was refused to payment on gratuityby the management on the ground that institute has no funds. But she has written many application in this regard to institute but no response from institute. since she is not legal minded so she was not aware of the gratuity act, and about labour commisionor. so she has not given application like form I. but she used to write application by normal way demanding gratuity. In the meanwhile after 2010 the institute was taken over by state govt. 

so my questions are?

1. can form "I" be sent to institute now?

2. can they refuse to pay on gratuity on the ground that the management is changed and new govt management has no liabilty in the matter of gratuity cases of earlier managent?

3. Can gratuity not be given on the late application ?

4. If no positive response come after sending form "i" to institute then I want to know that how much time it take to solve the case before labour commisioner?

5. what are the chances of getting gratuity in this case?

 

 

 



Learning

 32 Replies

Akash Kapoor (Owner at Shramsamadhan India)     05 February 2017

Now let us answer this one by one :-

1) Payment oof gratuity is madatory. So fund or noo fund it has to be pad untill the reason are as below specified :-

The gratuity payable to an employee may also be wholly or partially forfeited
 
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
 
 
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.
 
As held in the case of Bharat Gold Mines v Regional Labor Commissioner, Any decision under the (i) and (ii) cannot be taken unless employee has been given due chance to fair hearing from employer. Also theft is an offence involving moral turpitude.
 
 
2) Delay in form "I" is not decissive for a claim. So you can file the form "I" with reason of delay. If in the eyes of Gratuity commissioner the cause of delay is genuine. He can condone delay. Read this
 
3)If an employer
  1. Refuses to accept a nomination or to Entertain an application.
  2. Rejects Eligibility or Issue notice of a lesser payment.
  3. Having received application fails to issue notice of payment in 15 days.

The Employer, Nominee, Legal Heir may apply to controlling authority within 90 days. If the authority wishes to do so it may accept after 90 days.

 

It is advised to read this https://www.shramsamadhan.com/p/payment-of-gratuity-act-rules.html

1 Like

Ms.Usha Kapoor (CEO)     06 February 2017

As gratuity is  a  statutory right - PAYMENT OF such service dues or benefits will PASS ON TO THE NEW GOVERNMENT mangement and the new government management is duty vbound topay gratuity to the retired lady lecturer for no one can defeat statutory rights.She HAS to apply for her gratuity dues in Form i.

1 Like

Vikram   06 February 2017

Thank u Mr Akash Kapoor and Miss Usha kapoor for providing such a wonderful input in such a fast manner Just one more thing i want to ask that Form I have been sent to the college today , do I need to send a copy of it to the labour commisioner?

Ms.Usha Kapoor (CEO)     06 February 2017

Yes!You Can.

1 Like

Vikram   06 February 2017

is it mandatory or optional?

Ritesh Maity (Labour Law Advocate)     06 February 2017

1. can form "I" be sent to institute now?

Yes, send it through registered post. Wait for a month for payment, if not paid, approach Controlling Authority with Form N without any delay. Since there is already a delay of 7 years, your application in Form N should also consist another application for condonation of delay (which should explain the details of the delay as much as possible - law says day to day delay needs to be explained)

2. can they refuse to pay on gratuity on the ground that the management is changed and new govt management has no liabilty in the matter of gratuity cases of earlier managent?

They can. But this is not a valid ground in the eye of the law.

 

3. Can gratuity not be given on the late application ?

No. But first the delay has to be condoned by the authority before going into the merit of the case.

 

4. If no positive response come after sending form "i" to institute then I want to know that how much time it take to solve the case before labour commisioner?

Check answer #1. Time span of any litigation cannot be predicted. It depends on the complications of the case, work load of the Controlling authority, participation of the other side etc. 

 

5. what are the chances of getting gratuity in this case?
If delay is condoned, then there is 99.99% chances of getting the gratuity provided that the service of the employee was not terminated on the grounds of moral turpitude.  
 

1 Like

Ritesh Maity (Labour Law Advocate)     06 February 2017

Originally posted by : Vikram
Thank u Mr Akash Kapoor and Miss Usha kapoor for providing such a wonderful input in such a fast manner

Just one more thing i want to ask that
Form I have been sent to the college today , do I need to send a copy of it to the labour commisioner?

You may send a copy of the FORM I to anyone you want, but there is no legal requirement of it. 

Form I should be sent to company. If they don't pay, file application under Form N before Controlling Authority (the controlling authority will send a copy of the Form N to the company along with a notice to appear before him and explain)

1 Like

Vikram   06 February 2017

Thank you Ritesh Maity Sir for your wonderful support and explanation. You have cleared my all doubts in this regard. I will wait for a month then see what haapens.

Thanxs a lot Maity Sir

1 Like

Kumar Doab (FIN)     09 February 2017

There is NO limitation to claim Gratuity.

First of all determine  which Gratuity Rules applied in her case.............e.g; Payment of Gratuity Act,1972.

 

Download Gratuity Rules.

Then check as per applicable Gratuity Rules which is the relevant form to be submitted………………..and if was titled FormI?

Kumar Doab (FIN)     09 February 2017

 

You have posted that:

"but she used to write application by normal way demanding gratuity"

FormI is a formal request.

She seems to have made many requests.

If the request was with mention of name, period of service then relate with FormI. FormI also contains the descripttion of name and tenure...............

Download FormI and go thru it.

If she has already submitted the requisite form ( say FormI) by post then attach a photocopy.

 

Kumar Doab (FIN)     09 February 2017

Mention in covering letter that she had represented previously also on dated.................to Mr/Ms...............by letters/phone calls/in person/emails etc, but ‘Notice of Determination of Gratuity’ and its Payment was never supplied.

Employer is under obligation to supply ‘Notice of Determination of Gratuity’ and Payment of Gratuity even if NO application was submitted by employee.

 

She is eligible for interest on late payment.

If Payment of Gratuity Act, 1972 applied then it is 10%pa if gratuity is not paid within 30days from LWD.

 

Kumar Doab (FIN)     09 February 2017

If the establishment was under: say Local Bodies then she can succeed to claim Gratuity from DOJ to LWD.

If the establishment was not under: say Local Bodies, then can claim from 1997 to LWD only.

Hence first of all determine the applicable Gratuity Rules and then initiate the communication.

Vikram   09 February 2017

Kumar Daob Sir

She has recently sent application in form I for the first time (because earlier she didnt have this knowledge about form I).

She has only some of proof as a photocopy of applications which she filed( because she is not legal minded , so she was not aware of the importance of this), but the available proofs are enough to show that there was communication from both side. 

Sir please explain about  DOJ and LWD and their connection with local bodies.

The institute was managed by a samiti( I think registered under " Registration of societies act 1956" ) and was affiliated to maharaja ganga singh university, bikaner. Now the college is under Rajasthan Govt , (affiliated to same maharaja ganga singh university)

 

Kumar Doab (FIN)     09 February 2017

DOJ; Date of Joining

LWD: Last Working Day

 

Depending upon what is this establishment e.g Local Body she may be eligible from DOJ or from 1982 or from 1997…………………to LWD.

 

Inquire locally about it.

Get details of applicable Gratuity Rules from some old staff, or office or Univ, or thru RTI or from some local counsel (senior) specializing in Labor/Service matters and handling Gratuity Matters.

I am sending two links that you may go thru, carefully.

 

You can download FornI also from these links.


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