Gratuity
KAVITHA
(Querist) 01 July 2016
This query is : Resolved
Hi All,
I had worked In a partnership firm from 07.04.2006 to 15.03.2016. In between I had taken a Maternity leave from 15.03.2010 to 10.04.2011 (I had not given my resignation) during this leave period I had received my incentive/bonus amount and 50% of my salary for 03 months.
And also I had taken leave of 02 months (Oct-11 & Nov-11)for my Hernia Operation.
Now my X-employer is telling that I am not eligible for Gratuity and hence he has given Exgratia of Rs.60000.00 (Rs. sixty thousand only) through 6 post dated cheques of Rs.10,000.00 each (monthly 01 cheque from July-16 to Dec-16)
Now I have the following doubts.
1.whether I am eligible for Gratuity or not
2.settling my full & final payment by an employer by issuing post dated cheques are legal.
Thanks in advance.
Siddharth Dev
(Expert) 01 July 2016
Your matter has some complications so please provide proper details or documents you received.
Thank You;
www.satron19.com
KAVITHA
(Querist) 01 July 2016
Thanks for your reply,
what details are required.
Regards,
KAVITHA
(Querist) 01 July 2016
I don't want to disclose the documents. please clarify
Kumar Doab
(Expert) 01 July 2016
>>> First thing first: Is the Payment of Gratuity Act applicable to establishment in each year from 2006-2016?
If yes you are eligible.
If Act is applicable the employer can not pay Ex-Gracia in lieu of Gratuity and in no case can tender post date cheques.
All approved leave is counted in period of service.
The Maternity Benefit for the 6 weeks period delivery is to be paid in advance and 6 weeks period after delivery immediately after pregnant woman employee has submitted proof of pregnancy delivery.
The rate of maternity Benefit is not 50% of the regular wages.
>>> You have posted that; "I don't want to disclose the documents. please clarify "
In that case consult an able counsel in person with all copies of all docs on record. Even during paid consultation, all docs on record would be required.
Guest
(Expert) 01 July 2016
What was the strength of the employees in that parnership firm?
Rajendra K Goyal
(Expert) 01 July 2016
If the documents can not be disclosed here, please show the same to local lawyer dealing in service matters and discuss.
R.K Nanda
(Expert) 01 July 2016
Contact local lawyer.
KAVITHA
(Querist) 01 July 2016
thanks a lot for your valuable reply sir,
in addition to the above information, wanted to add one more thing that gratuity was paid to all other employees who have left the establishment before and in 2015-16 financial year also.
regards
Kumar Doab
(Expert) 01 July 2016
you have not replied to the point raised by Expert Mr. P.S.Dhingra!
Your last post is noted.
KAVITHA
(Querist) 01 July 2016
More than 10 employees were there In the establishment.
As I said before all x employees who had left the firm after 05 years of services have got gratuity paid
EXCEPT ME
Kumar Doab
(Expert) 01 July 2016
Telling, saying, asking etc are all verbal mode of communication and difficult to prove.
You may disclose why you alone are not being paid gratuity?
Was you leave for both periods ( Maternity Benefit, sickness due to hernia) duly informed to employer under proper acknowledgment and approved?
Was any show cause notice issued against you, domestic inquiry conducted, opportunity of natural justice granted, speaking order for forfeiture of gratuity passed?
You may post full facts.
KAVITHA
(Querist) 01 July 2016
no other problem was there. After notice period also my employer said me to work for some more months, but I was not able to continue due to my personal problem.
so,.....
Kumar Doab
(Expert) 01 July 2016
If you have served notice of resignation, served full notice period, tendered final resignation, then ideally nothing is pending at your end.
The employer during notice period should have arranged to complete the exit formalities if any, and provided FnF statement ( Gratuity can be computed in it) showing earned wages/leave encashment/bonus/OT etc etc , service certificate, relieving letter, PF a/c slips, Form 16 as per correct FnF statement etc ...............by LWD..........
The employer can not withhold due to any personal grouse.
Still try to resolve by applying your own skills.
If you are unable to resolve on your own entrust to your able counsel.
H.M.Patnaik
(Expert) 01 July 2016
Experts have advised adequately.Now, you have consult an experienced service/labour law practitioner locally who can examine the facts and documentary evidence and take suitable legal recourse to realise your legitimate dues.
Guest
(Expert) 01 July 2016
Send your claim to the competent authority of your state on Form-I.
Kumar Doab
(Expert) 01 July 2016
Submit a gentle representation to good office of Prop. under proper acknowledgment that above mentioned documents, FnF dues, and Notice of Determination of Gratuity and payment of Gratuity has not been supplied and FormI is attached.
After 30days from LWD you should be eligible for interest @10%pa.
If good office also do not provide any relief entrust to your able counsel.
Vijayarajan
(Expert) 02 July 2016
Ms. Kavitha is entitled to get Gratuity. It must be calculated based on the last month salary. Salary devided by twenty six multiplied by fifteen and again multiplied by the number of years. There is no ambiguity in this case.
I feel that the employer is law abiding and if Ms. Kavitha makes an application the Gratuity will be paid. If not you can file an application before the Controlling Authority for deciding the case..
Kumar Doab
(Expert) 02 July 2016
Act on the advise of experts and initiate the process.
Siddharth Dev
(Expert) 03 July 2016
Agreed with experts they have taken great interest to solve your problem.
Thank you
www.satron19.com
Kumar Doab
(Expert) 03 July 2016
>>> @ Author @ Kavitha
You are welcome.
>>> It is indeed good to see the authors that come back and thank the experts for their help.
>>> Today another querist has come back and posted thanks at:
http://www.lawyersclubindia.com/forum/Case-of-succession-widow-remarriage-139272.asp
http://www.lawyersclubindia.com/forum/Duress-used-by-private-concerns-139262.asp
http://www.lawyersclubindia.com/experts/Property-inheritance-606131.asp
>>> Today another member has indulged in indecorous, indecent , rude, rowdy, defamatory conduct with LCI expert.
WE have unanimously condemned the conduct of this member.
All experts are requested to post their views in such threads and condemn such members and their such conduct and also write to LCI Admin and press the LCI admin to share the ID details of such members that litter nuisance and also caution LCI admin to cancel the ID of such members permanently.
The above mentioned thread is at:
http://www.lawyersclubindia.com/forum/Need-advise-on-nbw-against-wife-other-pws-in-498a-139113.asp
KAVITHA
(Querist) 04 July 2016
Dear respected Sir,
Thanks a lot for your advise, I was unable to reply from 02 days as internet problem was there.
Really I am grateful to each & everybody who has replied and given moral support to fight for my rights,
Regards,
Kavitha
Kumar Doab
(Expert) 04 July 2016
Author @ Kavitha,
You are welcome.
We are happy to note that you are satisfied.
Entrust the matter to your able counsel if you are unable to resolve.
KAVITHA
(Querist) 26 July 2016
Sir,
After getting good support from your end I had decided to consult the counsel, but by friends and well-wishers are saying that I may get problem during change of job as now a days companies will be taken feedback from all previous employers. My X-employer may feedback negatively if I take further step against him.
Is it true? ,
I have uploaded my Experience certificate and a letter issued by My previous employer for your review.
Kindly suggest me how to handle this case and with the available documents whether I can claim for gratuity
KAVITHA
(Querist) 26 July 2016
Sir,
no provision to upload the documents..
Kumar Doab
(Expert) 26 July 2016
You were advised to:
--Submit FormI under proper acknowledgment.
--Submit covering letter and what to write.
Did you submit?
Submitting FormI and letter is not offence or litigation.
Were you issued with any show cause notice, stinkers ever?
You have replied in the thread that: NO.
On what count you are apprehending negative feedback?
You have consulted your friends and well wishers.
But did you consult an very able counsel specializing in labor/service matters?
Did your counsel opine that without any adverse record, negative feedback can be posted?
KAVITHA
(Querist) 27 July 2016
Sir,
Friends and well wishers opinion had held me back.
Thanks for support again.
I will file Form I
Regards
Kavitha
Kumar Doab
(Expert) 27 July 2016
You have been advised in detail.
Beyond this you may consult a very able counsel as already advised.
KAVITHA
(Querist) 28 July 2016
Sir,
Thanks a lot for your explanation.
Regards,
Guest
(Expert) 28 July 2016
You are welcome.
