Gratuity 4 years 190 days
Kanhaiya Lal
(Querist) 18 April 2013
This query is : Resolved
Hi LAW Experts,
I am working at Noida in a USA based MNC which works 5 days in a week. I have completed 4 years 1 month in this company and I am willing to leave this company in 4 years and 190 work days.
Joining date Feb-26-2009
Expected leaving date Nov-30-2013.
I have checked with my HR for gratuity. They says that company will not pay gratuity if I leave company in 4 years 190 working days. I have to complete at least 5 years.
My question is, If I leave my current company in 4 years 190 working days and company deny for gratuity, then do I have some legal option against company for my gratuity payment?
If there is any law, please let me know, law name/number.
Your expert advise is highly appreciated.
Best Regards
Kanhaiya Lal
Vidhi Joshi
(Expert) 19 April 2013
yes as per section 4 of gratuity act, 1972 you need to have a "continuous service" of five years in a particular company in order to be eligible for gratuity, it is advised to stick with the company for few more days to have your stand..rest is your conscience.
Kanhaiya Lal
(Querist) 19 April 2013
Thanks for your quick response.
One of my friend (in other company) had completed 4 years 190 work days. At the time of EXIT, he got gratuity despite not completing exactly 5 years in that company.
Is it depends on company if they want to give you gratuity in less than 5 years case?
H.M.Patnaik
(Expert) 19 April 2013
As per the Provisions of Payment of Gratuity Act, period of completed service exceeding six months continuously shall have to be reckoned as full year of service for the purpose of calculation .
So, the given circumstances, you will be entitled to gratuity treating the period of continuous service as five years.
Kanhaiya Lal
(Querist) 19 April 2013
Thanks Patnaik for your response.
It means, 190 working days (in a company who work 5 days in a week) becomes more than 6 months.
So if one is completing 4 years and 190 working days, he/she will be eligible for gratuity.
Please correct me, if I understood your statement wrongly.
Why I am asking this question, I have to leave my current company in 4 years 190 working days and I have already completed 4 years 1 month. Hence do not want to loose my gratuity.
If by law I am eligible for it in 4 years 190 working days, then I will leave otherwise I will complete 5 years in current company.
Kanhaiya Lal
(Querist) 19 April 2013
Your response is highly appreciated
Kumar Doab
(Expert) 19 April 2013
If employee has tendered notice of resignation, then employee has notified the employer about his date of retirement.
{ Address your notice/resignation to good offices of MD, appointing authority}
Employee can submit FormI for the payment of Gratuity a month before date of retirement.
{Submit FormI under proper acknowledgment to MD, appointing authority.}
Educate/Explain the HR on payment of Gratuity by other company and penalties, punishment, imprisonment of Whoever..........as described in Sec9.
Emphasize upon the description of word
" WHOEVER"..........
-----The provision in the Payment of Gratuity Act, 1972 are crystal clear and there is no ambiguity:
Section: 2A
Continuous service.
(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -
The Section 2 (a) (i) -----190 days = 1 year if company operates 5 days/week.
Section 2 (a) (ii)-------240 days= 1 year in any other case (if company operates 6 days/week).
Section 2 (b) (i) (ii) may also be looked into.
----The company of your friend is aware and has therefore paid the Gratuity.
You may make the HR in your company understand.
Section: 7
Determination of the amount of 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:
( It is felt that the interest is simple @10%/pa)
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……………
Raj Kumar Makkad
(Expert) 19 April 2013
You are duly entitled to claim gratuity in the given facts.
H.M.Patnaik
(Expert) 20 April 2013
Mr. Kumar has reproduced the right provisions for clearing the doubts .
Now, you can go ahead with the advice of the Experts.
Kanhaiya Lal
(Querist) 20 April 2013
Yes Mr. Patnaik, I got all required information.
While sharing this information with my HR, they will definitely ask government website link, which this information is there.
Please can you help me for this link as well.
I am very much thankful for your expert advise.
Regards
Kanhaiya Lal
Kanhaiya Lal
(Querist) 26 August 2013
Hi LAW Expert,
As per posts in this thread, I am about to leave my current organization and I will completing 4 years 190 work days while exiting from current organization.
I had asked my company for gratuity however company stated cleary that I have not completed 5 years hence I will not get 5 years gratuity. As per company HR, they not follow 4 years 190 work days gratuity law.
Please advise here, what and to whom I can approach for help in this matter.
Kumar Doab
(Expert) 26 August 2013
Nothing new is to there to be posted.
As already suggested "Submit FormI under proper acknowledgment" preferably by redg. post.Avoid verbal transactions.
If gratuity is not paid approach your lawyer and under expert advice of your lawyer the Controlling Authority of Gratuity (DLC-Gratuity)
Kanhaiya Lal
(Querist) 26 August 2013
Thanks Kumar. I will approach said lawyer.
Kumar Doab
(Expert) 26 September 2015
I had come across publication that............
Supreme Court ÃÂs obiter in Kusum Ingots v. Union of India was referred by the Madras
High Court in Textile Technical Tradesmen Association v. Union of India to hold that a High Court's judgment on the constitutional validity of a central legislation will be applicable throughout the territory of India.
The payment of Gratuity is one of the tools for social security and so far the courts have taken pro employee stance.
This should help all querists to whom unscrupulous employers/HR personnel have quoted that Madras High Court Judgment is not applicable in their case.
This issue has been discussed even by reasonable HR personnel at various good HR portals also...
The issue has been discussed in detail at:
http://www.lawyersclubindia.com/forum/details.asp?mod_id=28768&offset=21#.VgZU131-jMo
Kumar Doab
(Expert) 26 September 2015
Madras High Court
Textile Technical Tradesmen ... vs Union Of India on 29 September, 2010
http://indiankanoon.org/doc/441531/?type=print
Supreme Court of India
M/S. Kusum Ingots & Alloys Ltd vs Union Of India And Anr on 28 April, 2004
http://indiankanoon.org/doc/1876565/?type=print
