Eligibility of gratuity
Stanlly Xavier
(Querist) 22 October 2013
This query is : Resolved
Hello sir,
I have a query regarding gratuity eligibility.
currently I am working in FDI approved Singapore based promoter’s company in india -Chennai, unfortunately now this company has been taken over by Indian company, and have worked nearly 4y-7m, (my joining date is 15th Apr’09 ,and my last working day is 31st Oct’13),am I eligible for gratuity?
Awaiting for a reply.
Thanks
Stanlly
Stanlly65@gmail.com
Kumar Doab
(Expert) 22 October 2013
The old company has been sold to new company or it is a merger?
The T&C in the agreement of new company taking over the old company and the circulars issued by the old and new company to employees should be looked into carefully.
If there are employees unions and the Trade Union those may also have all the details.
You may refer to:
>> Payment of Gratuity Act, 1972
Section: 2A: Continuous service: (2) (a) (i) (ii)
If the establishment worked for less than six days/week and you have been separated, you should be eligible.
If you are still in the employment of the establishment the new management has taken over with stock, flock and barrel and there has been consensus on no change in service conditions and for counting of past service of employees and accordingly arrangement for Payment of Gratuity has been made, then there should no effect on continuity in service and hence on eligibility for payment of Gratuity.
However if there is no such agreement with new company and new company has not taken any such liability then the employees that have completed 190 days or 240 days in 5th year of service should be eligible for the payment of Gratuity from old company.
>> If the old company has been sold to new company and closed and employees have been retrenched you may look into:
ID Act: Sec 25FFF: Compensation to workmen in case of closing down of
Undertakings.
And the retrenched employees that have worked 240 days in preceding 12 months should get:
- Retrenchment compensation @ 15 days wages/year of service
-1 month Notice pay if no notice was tendered
-Payment of Gratuity to all eligible employees as per Payment of Gratuity Act, 1972:
Section: 2A: Continuous service: (2) (a) (i) (ii), (b) (i) (ii)…………….
In case of issues the employees may approach local o/o Labor Commissioner.
Stanlly Xavier
(Querist) 22 October 2013
Sir,
Thanks for the information,as far as the subject concern, the new managmnet is asking most of the pepole to resign, (aprox 200+) by issueing a latter that the company is in lose for last two years,, and the new managmnet is not willing to accept the current manpower, therefore you have asked to leave (as you said retrenchment),
coming to agreemnets, there is no any clarity ,and it is unknow us, and i am still working. stanlly
Kumar Doab
(Expert) 22 October 2013
In such a case it shall be appropriate to approach a competent and experienced labor consultant/service lawyer with copies of whatsoever record and letters you have with you, spend quality time with your lawyer and proceed under expert advice of your lawyer.
The lawyer that has seen all the docs and has analyzed your inputs can advice you the best.
All affected employees may join hands and trade unions may be involved in such matters.
If the separation is by resignation then the total onus may be on employee.
If employee resigns by his free will then how can it be retrenchment?
If the company is asking to resign in writing by issuing a letter the employees may have a chance to claim deemed retrenchment/lay off.
Your lawyer can advise you conditions applicable in case of workman and non workman.
Approach your lawyer as ap.
Valuable advice of learned experts is sought.
Ms.Nirmala P.Rao
(Expert) 22 October 2013
I'm in agreement with Mr.Kumar Doab's opinion.If they are forcing you to resign then it shall be considered a deemed retrenchment and if you've put in 240 days of service in the preceding 12 months you are entitled to claim gratuity as per Industrial Disputes Act 25FFF.
Rajendra K Goyal
(Expert) 23 October 2013
Well advised by the experts, nothing more to add.
Stanlly Xavier
(Querist) 23 October 2013
Thank for the information,, i am still discussing with managmnet,, if i need further any assistance, i will get back you all.
stanlly
Raj Kumar Makkad
(Expert) 24 October 2013
You are always welcome as and when you require legal help.
