SC Judgement is enclosed.

for 5 days working, the 190 days is working days is it?

I joined IT co on 16-Aug*2007 and quit on 16-Apr-2012.5 days working. Am I eligible for gratuity

Take your date of reference as 16-Apr-2012.

Calculate 4 years from 16-Aug*2007.

Look into the provisions as mentioned in the act.

You should be eligible.

Valuable advice of learned experts/members is sought.

can u please post a copy of supreme court judgment regarding 4 years 8 months

The judgements by honorable HC, SC and the Act are already enclosed in this thread.

The web link to another highly informative thread is given in this thread.

Respected Sir,

I have gone through many discussions on various forums regarding the subject matter and reading comments supporting yes as well as no…

I am stucked up in such a situation now… I am leaving my present employer upon completion of 4 years and 9 months. 12 days. DOJ was 11.09.2007 & Date of Relieving is 22.06.2012... and on 22.06.2012 they discharge my service and giving the letter to transfer the three month notice period salary up to 22.09.2012 in your bank account. But they are not transfer the salary in our bank a/c. The company is saying that they will pay gratuity only upon the completion of 5 years… The company claims that as per Payment of Gratuity Act and Rules, 1972, 240 days of service shall be considered as a continuous service for the year only in the case of death…

What is the actual fact…? Is there any possibility as per gratuity rules for me to get gratuity... How can I convince my company for getting me the gratuity?

Kindly suggest/help me in this matter…

Thanks in advance...

Rakesh Kumar

You have posted that:

-------“The company claims that as per Payment of Gratuity Act and Rules, 1972, 240 days of service shall be considered as a continuous service for the year only in the case of death…”

Ask the concerned person to state so in writing.

Employee should strive to record such transactions ( audio/visual/in writing) and keep some evidence/witness…………………………………………………..

Employee may draw the attention of concerned HR personnel, o/o appointing authority, MD, Chairman.. etc to the word “WHOEVER” AS MENTIONED IN SECTION 9:

Section: 9
Penalties.

(1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.

(2) An employer who contravenes, or makes default in complying with, any of the provisions of this Act or any rule or order made there under shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year, or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both:

--------“ I am leaving my present employer upon completion of 4 years and 9 months. 12 days. DOJ was 11.09.2007 & Date of Relieving is 22.06.2012... and on 22.06.2012 they discharge my service and giving the letter to transfer the three month notice period salary up to 22.09.2012 in your bank account.”

Apparently you have served notice month’s notice of resignation and your effective date of retirement by resignation from employment was notified by you as 22.09.2012…………………..

Whereas it seems that company has accepted the resignation with immediate effect on 22.06.2012……………………………………and has stated that 3 month’s notice pay shall be disbursed by transfer of funds in bank a/c of employee.

Do you want to accept it? Have you accepted it unconditionally and/or in writing?

In your case you have initiated the notice of retirement from company by notice of resignation and company can not prepone it.

{ Payment of Gratuity Act, 1972: Section: 2 Definitions:

(q) "retirement" means termination of the service of an employee otherwise than on superannuation;}

Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers ... on 1 April, 1998

“11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.”

So if you are the loser you may explore the option to decline and affirm to serve the notice period as ap in writing.

If you wish to enter into any negotiation you should mention in writing under acknowledgment (preferably by redg. post) that company has to tender payment of gratuity as you have pledged to serve full notice period, and you have not accepted notice pay. It would be better to restrain the company from transferring any amounts in bank a/c and supply the payment by bank DD only, thru redg. Post only.

Section: 4: Payment of gratuity.

(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.

------For the payment of Gratuity the employee may submit FormI under proper acknowledgment preferably by redg./ post. Employee is eligible to get interest which was last notified as @10%, for the period of delay.

Refer to:

Section: 7: Determination of the amount of gratuity: 1,2,3,3,4

------ Employee can submit FormI a month before date of retirement.

Is notice period considered for gratuity payment ? I joined my current organisation on Jan 17, 2011. If I resign on Jan 1, 2016 & serve the notice period for 30 days, would i still be eligible for gratuity ?

Notice period is counted in service period and gratuity. Mention clear notice period of ..............days .............and LWD in notice of resignation.

Otherwise also if you have served 190/240 days in year and in 5th year you are eligible.

You can submit FormI under proper acknowledgment 30dasy before LWD and ask to tender payment of Gratuity on LWD.

This has already been discussed in this and many threads.

Hello Everyone,

I worked in a IT company 4 years and 352 days. 

Company not paid the gratuity to me. Am I eligible for the gratuity or not?

Please guide

Regards

Sunil

Hello Everyone,

I worked in a IT company 4 years and 352 days. 

Company not paid the gratuity to me. Am I eligible for the gratuity or not?

Please guide

Regards

Sunil

@ S Singla,

The query that you have posted has already been discussed in detail in this thread and other threads also, alongwith how to get the gratuity if employer has not paid..

You are eligible.

You may act on the advise already posted in the threads.

If you are unable to resolve then you may entrust to an able Labor Law Consultant.