Gratuity eligibility
Mehboob Khan
(Querist) 01 April 2013
This query is : Resolved
HI,
I have been associated with a company for more than 6 years and was promoted on several occasions in my tenure. I joined the company on 5th Jan 2005 and resigned on 29th April 2011 on immediate basis without serving the notice period and joined another company. Also my Salary for that month was not credited to my salary a/c nor a cheque received.
Later on 11th Aug 2011, we were detained by the the cyber police under ipc sec 408, 34, 66B & 72A. As our previous company complained that we have stolen their data which is freely available on search engines. Also the data they claim to be stolen is not owned or purchased by the company. We were granted bail by the court after 60 days as the police failed to submit chargesheet. Till date the charge sheet is not submitted. As per the previous query experts advised me to go for quashing.
However, my query now is that am I eligible to get gratuity as i served the company for more than 6 yrs but left the company on immediate basis and resigned by sending my resignation letter via e-mail to the concerned authorities. But I did left my last months salary with the company which was not deposited to my salary a/c. Also recently I filled my Provident Fund form and submitted the same at that company.
The company dont seem to clear my dues as they have filed a criminal case against us.
Is it possible that the company can stop my gratuity and my last month salary which i did not receive. Also can the company stop and not clear my pf dues as they have made criminal proceedings against us???
Please Advice..... !!!!
Guest
(Expert) 01 April 2013
For eligibility of gratuity, process of acceptance of resignation or termination is necessary. It seems the company did not formally accept your resignation. It is better for you to wait for clearance of your cyber crime case, otherwise, if the company issues orders of your termination on the plea of willful omission, negligence causing any damage or loss to, or destruction of, property belonging to the employer, the company would be able to forfeit the gratuity.
On clearance of your cyber crime case, you would be able even to claim interest on delayed payment of gratuity.
About your PF, you need not feel handicapped by the inaction of the company. If the company has not sent your claim form to the EPFO, you can send that direct to the zonal office of the EPFO by getting the form signed by your banker.
The company can withhold salary only to get adjusted any dues from or amount of loss caused by the employee.
Isaac Gabriel
(Expert) 01 April 2013
Gratuity should be paid within 30 days of termination of servcie.Else, the Management is liable for the payment of interest for belated payment. In your case, the excuses like pendency of criminal case, charge sheet, arrest etc., are no tenable grounds for imponding of gratuity.Fiel a case with the conttrolling Authority of your area for the recovery of your gratuity.
H.M.Patnaik
(Expert) 01 April 2013
Hi Mehboob,
Just to add a little more to what has been advised by learned Experts above.
what I find from your query, you have not yet filed any application with your previous
Employers for release of Gratuity. In such an event , you can not move the Court of Controlling Authority under Payment og Gratuity act for recovery of dues.
Raj Kumar Makkad
(Expert) 01 April 2013
Nothing to add more in the given advice.
Isaac Gabriel
(Expert) 02 April 2013
It is a statutory duty cast upon the employer to pay gratuity on termination of employment ie.resignation,superannuation,retirement,dismissal etc.,and no application is necessary from the employee as per section 4 of the Act.The employer can forfeit the gratuity only when the eventualities contemplated under section 4(6) of the Act.If an employee is terminated or dismissed on charges of misconducts the employer can impound the gratuity and that too after notice to the employee.In the given case, no such circumstances have been stated.So, there is no justification on the part of the employer to stall the gratuity.Approaching the Authority is the only option in view of the circumstances explained.
Guest
(Expert) 02 April 2013
Mr. Isaac,
I hope you would like to agree with me that the question of statutory duty of the employer fr gratuity would arise only after formal acceptance of resignation of the employee. If not, you would like to throw some more light on statutory duty of employer to have become due merely after receipt of resignation of the employee irrespective of whether that is accepted or not due to pendency of any disciplinary or criminal case.
Isaac Gabriel
(Expert) 02 April 2013
Respected Dingraji, The resignation was tendered in Nov 2011.It appears,the Management has not informed about the acceptence or otherwise.The service rules specify time limit, after which deemed acceptance is presumed. The gratuity act takes cognizance of tendered resignation whereby the service stands terminated.
Guest
(Expert) 02 April 2013
Dear Isaac,
I may correct you, the querist submitted his resignation in April 2011, NOT in November 2011, as mentioned in your reply.
Further, if he submitted his resignation in 2011, the incident of cyber crime was also reported against him by the employer to the police within about 2 months. Irrespective of whehter that case was true or false, but employer made a cause of withholding of gratuity.
The question arises, has the employee anywhere stated that he was formally relieved after acceptance of his resignation? Rather he joined another company immediately after tendering his resignation without caring for getting his resignation formally accepted and relieved officially.
Anyway, do you believe that the action of the employee was not tantamount to indiscipline, if he joined another company without caring for getting his resignation formally accepted and relieved officially?
We should not forget that there is a marked difference between the Government sevice and private service. Presumption or deemed action has no scope in private service unless provisions of some law state for deemed acceptance of resignation. Moreover, even in Government service, the employee is not relieved without getting clearance from the concerned departments and handing over of his charge properly before leaving his organisation. Even in Government service, there is no provision of deemed resignation.
Raj Kumar Makkad
(Expert) 02 April 2013
Private service cannot be equatted with government job and therefore the rules governing government sector should not be expected in favour of the persons working in private sector. specific contract of service is the guiding factor in private sector. I do agree with relevant reply of Dhingra g in this regard.
Mehboob Khan
(Querist) 03 April 2013
Thanks a lot Mr.P.S. Dhingra, Mr. H.M Patnaik, Mr. Isaac Gabriel and Mr. Raj Kumar Makkad for your valuable advice.
I really appreciate your efforts and most importantly your time you gave to understand my situation and the initiative you took to suggest me different ways as resolution.
Thanks once again....!!!
Guest
(Expert) 03 April 2013
You are welcome, Mr. Khan.
H.M.Patnaik
(Expert) 04 April 2013
You are welcome Mr. Mehboob.
