clearing of gratuity
vandana
(Querist) 24 July 2015
This query is : Resolved
Hi,I have worked in a school for seven years and resigned due to some reason.now I m asking for my gratuity but they r saying its not applicable to teachers.its a private cbse school. Can they deny on any basis.
Kumar Doab
(Expert) 25 July 2015
NO.
Sec2(e)was inserted in Payment of Gratuity Act 1972 and teachers were made eligible with retrospective effect from 1997.
Submit FormI under proper acknowledgment, with a seal and signature with date on your copy and/or by Redg. Post followed by scanned image of FormI and Redg. Post receipt.
Download POD from indiapost.gov.in
and also obtain certified copy of run sheet of postman from PO against a fee of Rs.10/-
Kumar Doab
(Expert) 25 July 2015
You may go thru following threads and download the notification and judgments:
http://www.lawyersclubindia.com/forum/Is-the-private-school-teachers-applicable-for-gratuity--92288.asp#.VbMjUbV-jMo
http://www.lawyersclubindia.com/forum/Gratuity-to-teachers-66082.asp#.VbMjrrV-jMo
You may also go thru CBSE Affiliation Bye Laws at:
http://cbseaff.nic.in/cbse_aff/attachment/onlineservices/affiliationbyelaws_14112012.pdf
CHAPTER – I; Sec;2 (xxiv),
10. Staff and Service Conditions : 4. The school should have Contributory Provident Fund and Gratuity or Pension, Gratuity and General Provident Fund as retirement benefits. These schemes should be as per Government rules of the State/Centre. In addition, it will also consider providing other welfare measures like free children education, leave travel concession, medical benefits, leave encashment etc.
You may submit a gentle letter addressed to Principle,Chairman narrating that on dated……………..Mr/Ms……………..declined to make the payment of Gratuity and hence intervention of superior/authority is sought for Payment of Gratuity and that you have also submitted FirmI on dated…………..(You may not necessarily make a mention of above Bye Laws). Later you can approach CBSE,State Education Board officials. In any case you shall be entitled to interest@10%pa in payment is not made to you within 30 days of LWD even if you have not submitted FormI. In case of dispute you can even demand to invoke the provisions of Sec9 of Payment of Gratuity Act that provides for penalty of Rs.20000/ and jail time of 6 months to ‘WHOEVER’ that avoids to make the payment of Gratuity.
In another thread a member posted that:
http://www.lawyersclubindia.com/forum/Private-school-teachers-gratuity-effective-from-which-date--96881.asp#.VbMkDbV-jMo
“FYI. Recently a judgement given by Indore labour court stated the payment of gratuity to school teachers from their date of joining not from 1997.“
All members /experts are requested to post the link to such judgment if available.
vandana
(Querist) 25 July 2015
Thanks for advice.but they got signed a paper by teachers during job in which they said they r not going to give any gratuity ;bonus and leave encashment. Can I still apply for this.I have 27 days EL also.I resigned because they were not giving maternity leave to me on 8 august 2014.can I ask for interest also.
Kumar Doab
(Expert) 25 July 2015
You have posted that:
".but they got signed a paper by teachers during job in which they said they r not going to give any gratuity ;bonus and leave encashment. Can I still apply for this.I have 27 days EL also.I resigned because they were not giving maternity leave to me on 8 august 2014.can I ask for interest also. "
You can still demand payment of Gratuity and you should........................and if the payment has not been made within 30 days of LWD you are eligible for interest and also press for penalty and punishment as per Sec;9 mentioned above.
Such extraction of a paper and signature from employee can be termed illegal and offense and CBSE should be happy to cancel the affiliation.
You can demand for correct FnF statement showing computation of earned wages/bonus/Leave encashment etc and also Form16 as per correct FnF statement, service certificate,relieving letter,PF number and a/c slips of each year etc..............
You may mention in your letter that you had informed about pregnancy in office on dated and payment of Maternity Benefit was denied and no form/format was provided to you for submission and demand payment of Maternity Benefit by attaching (copy) of doctor's Rx showing tentative date of delivery and report showing having delivered the child.
The maternity benefit of period prior to delivery should have been supplied in advance within 48 hours and after delivery on informing delivery.
You can approach Inspector appointed under Maternity Benefit Act (state/central as applicable in your case) also. There is provision of penalty and punishment under this Act too.
If you are unable to handle on your own take help from elders in the family, teachers associations,Labor Law Consultant/service matters lawyer/law firm.
Kumar Doab
(Expert) 25 July 2015
Needless to mention that you shall be eligible if the Acts apply to the school and it is felt that you have checked on it.
vandana
(Querist) 25 July 2015
Thanks for help. I will try my best.
Kumar Doab
(Expert) 26 July 2015
If the Acts apply to the school and if you shall be eligible then the establishment/school is liable to pay to you and alongwith interest.
You seem to have a good case.
Take help from elders in the family, teachers associations/forums ,Labor Law Consultant/service matters lawyer/law firm, and they can help you to have further and finer understanding of your rights and can also draft your representations.
You should submit everything under proper acknowledgment, preferably thru Redg. Post.
You may also check if there is an Educational Tribunal in your state.
Keep this thread active and revert.
I am not getting updates on this thread.
Hence you may send PM with weblink to this thread, if you find a delay in response.
vandana
(Querist) 26 July 2015
How can I know acts apply on school or not.it is in sector 37 Faridabad.(haryana).what is pm web link.
Kumar Doab
(Expert) 26 July 2015
For all issues as already pointed out you should consult elders in the family, teachers associations/forums, Labor Law Consultant/service matters lawyer/law firm, and they can help you to have further and finer understanding of your rights and can also draft your representations.
First of all submit your demands and FormI under proper acknowledgment preferably under Redg. Post.
You may visit the local labor Court, CGIT, Civil Court and inquire about the Labor Law Consultant/service matters lawyer/law firm and consult them.
Teachers associations have done commendable job in many states and have defended the rights of its members!
http://timesofindia.indiatimes.com/city/aurangabad/Supreme-Court-rejects-state-plea-challenging-retired-teachers-gratuity/articleshow/25204611.cms
>>> Gratuity: If at any point of time school employed 10 or more no. of employees (direct/contractual) you should be eligible.
Payment of Gratuity Act 1972:
http://labour.gov.in/upload/uploadfiles/files/Divisions/social_security/ThePaymentofGratuityAct1972.pdf
Sec:1 (3): (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.
1*[(3A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten.]
Calculation of Gratuity: (Last Drawn Basic+DA)/26*15*7
Educational Tribunal Does exit in State of Haryana.
You may obtain the latest notification issued by the state Government to understand the scope and coverage provided to Tribunal as per executive powers of the state government of Haryana.
It is one of the possibilities that Haryana state government might have included the issues like Leave encashment, Gratuity, Maternity Benefits etc within the ambit of Educational Tribunal.
If the educational tribunal is not empowered then you can very well approach Controlling authority of Gratuity (state/central as applicable in your case).
You may go thru:
“Punjab-Haryana High Court
Management Of S.D. Model Senior ... vs District Judge -Cum- Service ... on 27 November, 2013
http://indiankanoon.org/doc/151977938/
On the other hand, learned counsel for the respondents argued that the basic intention of the court to constitute Educational Tribunal as per the directions of the Supreme Court in T.M.A.Pai Foundation's case (supra), is that the teachers should not be made to fight their claims before the Civil Court. Therefore, all disputes which could be decided by the Civil Court would be required to be decided by the Educational Tribunal. Reference is made to the orders passed in CWP No.4148 of 2008 titled 'Ramesh Kumar & others Vs. State of Haryana & others' on 16.03.2009 and 20.05.2009. Reference is also made to an order passed in CWP No.20611 of 2010 titled 'Ramesh Kumar Vs. Ambala College of Engineering and Applied Research, Devsthali (near Mithapur), Ambala & others' decided on 12.03.2012 and subsequent order dated 06.02.2013 passed in LPA No.1084 of 2012 titled 'Ambala College of Engineering and Applied Research Devsthali (near Kumar Vimal Mithapur), Ambala & another Vs. Ramesh Kumar & others', whereby the 2013.11.27 11:44 I attest to the accuracy and integrity of this document Chandigarh C.R.No.4315 of 2012 appeal has been allowed and the matter remitted back to the Educational Tribunal.
We find that the issue has been touched in some of the orders passed by the Learned Single Judges of this Court but the Division Bench orders does not deal with the issue specifically.
It may be noticed that on 29.10.2013, learned Additional Advocate General, Haryana sought time to examine the provisions of the Act, its scope and the powers to be exercised by the Educational Tribunal in terms of the judgment of Supreme Court in T.M.A.Pai Foundation's case (supra). Thereafter, Mr. Poonia made a statement on 14.11.2013 that the State Government is contemplating amendment in the Act to provide disputes settlement mechanism between the teachers and the management of the recognized schools within six months. It was stated that such mechanism will address issues of disputes regarding pay-scales and disciplinary proceedings.”
>>> Maternity Benefit:
If you have worked for 80days in the twelve months immediately preceding the date of expected delivery:
You have as per your post, worked for these periods hence are eligible.
You may go thru;
MATERNITY BENEFIT ACT, 1961
http://pblabour.gov.in/pdf/acts_rules/maternity_benefit_act_1961.pdf
Sec: 1,2,3{(d) (iii),g,n,o},4,5,6
Calculation of Maternity Benefit: every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day.
You shall also be eligible for Maternity Bonus that was last noted as Rs.3500/ and could be higher now.
>>> PM is for personal message at LCI.
Weblink is link to this thread initiated by you and as mentioned in address bar i.e;
http://www.lawyersclubindia.com/experts/clearing-of-gratuity-549796.asp#.VbSuHLV-jMo
Hope everything is clear to you, now.
vandana
(Querist) 26 July 2015
Thanks sir
vandana
(Querist) 30 July 2015
Thanks sir.I have talked to school authority's they got agreed to pay gratuity as I shown to them gratuity act papers but they are not ready for EL.is there any act for it also.can I get my job back on any basis.I m not asking for Maternity benifit but need job.which they promised before getting my resign
T. Kalaiselvan, Advocate
(Expert) 01 August 2015
Good that your employer was able to be convinced about your gratuity eligibility through the support you received from this club.
On further issues too, you may go through the leave rules of your school and revert.
Kumar Doab
(Expert) 01 August 2015
The best possible support has been provided to you in this thread.
It is expected that you should carefully go thru each post, link.
It has been pointed out that you should consult elders in the family, teachers associations/forums, Labor Law Consultant/service matters lawyer/law firm, and they can help you to have further and finer understanding of your rights………..
In my second post I have already posted the link to CBSE Bye Laws and it is duly mentioned by CBSE that school will provide leave encashment.
“You may also go thru CBSE Affiliation Bye Laws at:
http://cbseaff.nic.in/cbse_aff/attachment/onlineservices/affiliationbyelaws_14112012.pdf
CHAPTER – I; Sec;2 (xxiv),
10. Staff and Service Conditions : 4. The school should have Contributory Provident Fund and Gratuity or Pension, Gratuity and General Provident Fund as retirement benefits. These schemes should be as per Government rules of the State/Centre. In addition, it will also consider providing other welfare measures like free children education, leave travel concession, medical benefits, leave encashment etc.”
If resignation was extracted from you against your wishes then it is forced resignation and it can be termed offense and ‘Deemed Termination’………………….that you can contest.
No employer can terminate a pregnant woman during pregnancy and it well explained in Maternity Benefit Act. Termination during Maternity Benefit period is illegal and employer can be punished.
Thus you may get your job back…………………..if you handle the matter carefully.
If you are unable to handle the matter on your own seek help from your counsels.
vandana
(Querist) 01 August 2015
Thanks sir
