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Shiva (Engineer)     06 May 2013

Regarding gratuity

Dear Sir,

I am an IT Professional working in Private form. I have joined my current organization on May 15-2008. Few weeks back my company HR has asked me to put the paper. They are terminating me from service for some reasons. They have asked me to put the paper on May 1st week. May 31 is my last day in the organization. The question here is, I will be completing 5 years on May 15. Since they have asked me to put paper before I complete 5 years, will I be getting my Gratuity?. As per the law I should be getting, but since they have asked me to put paper before the said date, i have couple of soubts in my mind. Are there any chances where in i will not get Gratuity?.

The information will help.

Thanks

Shiva



 4 Replies

Kumar Doab (FIN)     06 May 2013

 

--------If you are resigning from service by submitting notice of resignation/resignation then company is not terminating you by issuing order of termination.

 

Company has extracted a resignation from you and it is Forced resignation.

Forced resignation is deemed as termination.

Employee has to rise and agitate for forced resignation. Extracting resignation by force, coercion within of company is offence.

 

In your personnel file company might have inserted by now adverse comments which may reflect in adverse comments in future.

 

You would know what are the justification, reasons for and act committed by you that company has demanded to put in your papers and your logic of submitting resignation in concurrence to the demands of the company.

------As per Payment of Gratuity Act, 1972

Section (6)  Notwithstanding anything contained in sub-section (1), -

(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused.

 

(b) : the gratuity payable to an employee may 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.

 

------If you have submitted notice of resignation you have notified your employer on your date of retirement and you can submit FormI (under proper acknowledgment) a month before date of retirement for payment of gratuity on date of retirement/last day in office along with FNF dues.

 

----- Employee can withdraw resignation before expiry of notice/last day in office.

 

 

There are many threads at LCI regarding Gratuity at:

https://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp#.UXrEe5indTs

It shall be appropriate to discuss in person with a competent and experienced labor consultant/service lawyer and proceed under expert advice of your lawyer to peruse the most suitable option as deemed fit at your end.


Attached File : 942902912 form i gratuity9.pdf, 942902912 paymentofgratuityact(1).doc downloaded: 263 times

Shiva (Engineer)     06 May 2013

Thanks Kumar for your response.

They are not actually terminating, but have asked me to look for change outside. They had given two months of time. I have already served 1 month. Today I have resigned. May 31 is my last woking day in the office. Termination is something releaving on immediate effect. So i believe it is forced resignation and not termination. 

They have agreed to provide proper documentation on my last day. So i believe it does not hamper my future.

With this in mind, will I get my gratuity. As per the law, I will be completing 5 years and 15 days at the time of my last day. 

Kumar Doab (FIN)     07 May 2013

 

Refer to; Sec 3(b) (c) 3A, Sec5.

If the Act is applicable to your company, company has to pay Gratuity.

You may submit FormI, now under proper acknowledgment, and ask to pay gratuity on last day in offcie along with other payouts in FNF.

Shiva (Engineer)     07 May 2013

Thank you very much for your response. This helps.


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