LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
LAW Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Ajay Hebbar   03 April 2017

Refusal of payment of gratuity

Dear Sir/Madam,

My name is Ajay Krishna Hebbar. 
I have resigned from my job recently. 

I have attached herewith a snap shot of the service certificate provided from my previous employer. 
D.O.J = 21- July- 2011

D.O.A (Absorption) = 21-July-2012

D.O.L = 29-March-2017

I had recently approached my HR team to check if I am eligible for payment of Gratuity. I was informed that I am not elgible as per the company policy. The following is the reason provided from theHR team. 

As I was recruited as a Graduate Engineering Trainee, the start date for calculation of Gratuity is from D.O.A and not D.O.J. 

And since the time frame between D.O.A to D.O.L is less than 5 years ; Gratuity is not appicable. 

Can you please confirm if the argument on these lines is valid. 
My HR seem to stress on the relation of my G.E.T tenure as under the apprentice clause of Gratuity act, though there was no mention of Apprenticship in the letter of employment as G.E.T.

Do i have a case here?

Are the terms Trainee and Appretice the same ?

Thanking you in advance. 

Regards
Ajay



Learning

 12 Replies

Kumar Doab (FIN)     03 April 2017

Were you an apprentice? (Check Apprenticeship Act.This act is applicable to limited trades of engineering other important thing is apprentice must be registered with appropriate government) If NO count from DOJ.
1 Like

Kumar Doab (FIN)     03 April 2017

Otherwise also

DOA- DOL=4Y08M08D

So you are eligible.

Ther are many threads on similar query

 

Go thru:

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

e.g;

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

Kumar Doab (FIN)     03 April 2017

Payment of Gratuity Act   Section: 2  (e) "employee" means any person (other than an apprentice) 

Khalifathullah   05 April 2017

D.O.A (Absorption) = 21-July-2012
Even if you take into account date of absorption you are entitled mean you have completed 04 years and 240 days which should be treated as 5 years service for entitlement to gratuity.  

Kumar Doab (FIN)     05 April 2017

Submit FormI under proper acknowledgment and mention that ‘Notice of Determination of Gartuity’ amd correct Payment of Gratuity has not been supplied to you and request to supply both.

Kumar Doab (FIN)     05 April 2017

One Presdpective: You may enter period from DOJ. Let employer reply whatever it wants.

Other Prespective: Confirm and mention that you were not apprentice.

If payment is not supplied within 30days frfom LWD interest @10% shall be applicable, for the delayed period.

NJR   07 April 2017

Dear friend, Ajay

Recently I had the similar issue. Issue went with Labour Commissioner also.

By considering your DOA also, your Total Service is: 4 years, 8 months, 10 days. So, you are perfectly eligible for the Gratuity. 

The Payment of Gratuity Rules in case the Service is less than 5 years:

4 Years 190 Days - For the Organizations which work 5 days/per week.

4 Years 240 Days - For the Orgnaizations which work 6 days/per week.

If we meet the above mentioned days, then the service will be considered as complete 5th year. 

So, you are meeting both the conditions and surely elible for the Gratuity. These inputs are from my realtime experience.

Labour Rules are very powerful. Please log a complaint with Labour Department with all the proofs from the Employer where they denied to pay the Gratuity. As Kumar Doab said you may get additional interest benefits as well. If they still don't agree to pay, Labour Commissoner may forward the Case to Labour Court as well, if needed.

Good Luck. Lets celebrate a big party if everything goes smooth. :)

Ajay Hebbar   07 April 2017

Dear Friends,

Good evening. Thank you for your time  and your insights. I have gone through your input.

1) The first one being the question of I being an apprentice. Are there any standout points that identify apprenticeship as I am unable to determine if I was one during my training period. 
The last time I asked my HR (after leaving the organisation) for a written explanation for denial of gratuity, I was replied with two kind words; "Please Sue". I do not see any additonal information coming from their end. 

2) I have also gone through the second point regarding my service falling well within 4 years and 240 days tenure.
My previous employer as per policy approves NO form of leaves during the notice period. I have however due to some  committments have gone on a unpaid leave which my employer terms as "Loss of Pay". (Note that; irrespective of the employee possesing a sizable number of earned leaves , as per the company's policy, employees are not permitted any leaves during the notice period. I had to go on a LOP inspite of having enough eaned leaves in my kitty)
These LOP's were taken during the 6th month of the 5th year. Does this violate the requirement as stated in the act of "Continuous service"?

My preivious employer observes 5 days working for 2nd and 4th week and 6 days working for the rest of the weeks. 

Kindly advise. 

Regards
Ajay

Kumar Doab (FIN)     07 April 2017

Originally posted by : Ajay Hebbar
Dear Friends,

Good evening. Thank you for your time  and your insights. I have gone through your input.

1) The first one being the question of I being an apprentice. Are there any standout points that identify apprenticeship as I am unable to determine if I was one during my training period. 
The last time I asked my HR (after leaving the organisation) for a written explanation for denial of gratuity, I was replied with two kind words; "Please Sue". I do not see any additonal information coming from their end. 

2) I have also gone through the second point regarding my service falling well within 4 years and 240 days tenure.
My previous employer as per policy approves NO form of leaves during the notice period. I have however due to some  committments have gone on a unpaid leave which my employer terms as "Loss of Pay". (Note that; irrespective of the employee possesing a sizable number of earned leaves , as per the company's policy, employees are not permitted any leaves during the notice period. I had to go on a LOP inspite of having enough eaned leaves in my kitty)
These LOP's were taken during the 6th month of the 5th year. Does this violate the requirement as stated in the act of "Continuous service"?

My preivious employer observes 5 days working for 2nd and 4th week and 6 days working for the rest of the weeks. 

Kindly advise. 

Regards
Ajay

 

Did you submit leave application under proper acknowledgmrent?

NO leave during notice period seems to private policy.

Otherwise atleast I am not aware of any law that states “NO Leave during Notice period’!

https://www.lawyersclubindia.com/forum/Leave-during-notice-period-in-software-industry-147438.asp

Kumar Doab (FIN)     07 April 2017

Similar queries have been discussed many times at LCI and can be searched in "Search option" and corresponding rules/ACT/judgments can be downloaded. 

 

Many authors/querist have posted such queries and have resolved without need of any litigation. 

Or with help of employee's/trade unions

 

Or with help of Officials of Dept of Labor

Or with help of a very able counsel specializng in Labor/service matters

 

Kumar Doab (FIN)     07 April 2017

Go thru:

https://www.lawyersclubindia.com/forum/Leave-during-notice-period-in-software-industry-147438.asp

https://www.lawyersclubindia.com/search_results_new.asp?module=Forum&q=Payment+of+Gratuity+to+trainee

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

 

 

 

https://www.lawyersclubindia.com/forum/details.asp?mod_id=31880&offset=2

https://www.lawyersclubindia.com/forum/Absconding-as-trainee-employee-case-68931.asp

Kumar Doab (FIN)     07 April 2017

Did you apply for Gratuity in writing and/or submit FormI, under proper acknowledgment?

The establishment works for less than 6days/week.

Even if establishment works for 6days/week, you should be eligible.

 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading

Post a Suggestion for LCI Team
Post a Legal Query