Payment of gratuity including the provision period
MRINAL KANTI SAHA
(Querist) 11 October 2014
This query is : Resolved
I have worked in a W.B. Government Registered Partnership Firm in Kolkata, since from 01.09.2009 up to 31.08.2014. I have submitted them my Notice for Resignation before one month i.e. on 31.07.2014. That means ultimately I have resigned there w.e.f. 01.10.2014. According to my Appointment letter initial 6 months from the date of my joining was my Probation Period.After successfully completion of my Probation Period, the company verbally confirmed me that my Probation Period had completed and after seven months from the date of my joining, that means from the first day of the eighth month, they have started to take my attendance in the Attendance Register.During my Probation Period, there was no attendance system of myself. Now, the company is telling that I have worked there 4 Years and 5 Months according to the Attendance and 7 months was my Probation Period, so I will not be entitled to get the Payment of my Gratuity. ARE THEY RIGHT BY LAW OF GRATUITY ? PLEASE LET ME KNOW IMMEDIATELY!
Kumar Doab
(Expert) 12 October 2014
>>> Probation period is counted in service!
You may count your service period from Date of joining to last day/date in office, including notice period served by you.
>>> You have tendered notice of resignation or resignation with immediate effect? Did you submit it thru Redg. Post?
Do you have copy and acknowledgment with POD?
Download your attendance record!
You have posted that:
----“ the company is telling that I have worked there 4 Years and 5 Months according to the Attendance and 7 months was my Probation Period, so I will not be entitled to get the Payment of my Gratuity.”
Do you have any evidence of such statement (audio/visual/witness)?
Is this statement in writing?
Saying and telling i.e. verbal mode of communication is not a written record and might be difficult to prove.
If possible for you, prepare a strategy and drive the discussion during meeting/calls and record………………….that on dated………………..you called from phone number, at phone number/ visited in person on dated and …………………..was said by Mr/Ms………………and let the employer decline to pay the Gratuity…………………….and keep the bills of the calls and recordings safely.
Once you have the evidence you can charge the offender u/s Sec9: Payment of Gratuity Act: and appeal for award of penalty and punishment with jail time.
----“According to my Appointment letter initial 6 months from the date of my joining was my Probation Period.After successfully completion of my Probation Period, the company verbally confirmed me that my Probation Period had completed and after seven months from the date of my joining”
This implies that appointment letter was issued to you at the time of joining, Isn’t it?
If yes this should suffice as proof of employment.
Other proofs of employment are: Salary Slip, attendance record, service card, various forms/registers prescribed under various enactments applicable to the establishment e.g. under West Bengal Shops and Commercial Establishments Act, PF deductions mentioned in salary slip/ac slip, ESIC card, emails, letters, work reports, expense reimbursements, Bonus, TDS/ITR record etc…………………….
Salary/Slip::::: The salary has to be paid on usual pay day and Salary slip has to be issued at least a day before the disbursement of wages (on fixed pay day) and signed by both employer/employee, as per :
Payment of wages Act: Sec13A
Min. Wages Central Rules: Sec 26(3,4)
Or employer can be penalized say Rs.7500/instance.
---“ from the first day of the eighth month, they have started to take my attendance in the Attendance Register.During my Probation Period, there was no attendance system of myself.”
This is a wrong practice.
Various forms/registers prescribed under various enactments applicable to the establishment e.g. under West Bengal Shops and Commercial Establishments Act, have to be maintained.
You may go thru various sections of:
West Bengal Shops and Commercial Establishments Act
and
West Bengal Shops and Commercial Establishments Rules and the forms/registers prescribed under it.
You can pursue to obtain record from Inspector appointed under this Act.
---Since you are retiring from employment by notice of resignation, you can submit FormI one month before effective date of resignation/expiry of notice period. Prefer to submit it under proper acknowledgment by Redg. post and demand notice of determination of Gratuity and payment of Gratuity by Bank DD only thru Redg. post only.
If the company has obtained mandatory insurance of Gratuity from say LIC then you may demand the certified copy of payment certificate issued by LIC………………………………..The employer can not keep a penny from the amount released by LIC even if amount payable as per formulae for calculation of Gratuity is lower than amount released by LIC.
If you are unable to handle the mater on your own, you may approach an able labor law consultant/service lawyer with copies of all docs on record.
T. Kalaiselvan, Advocate
(Expert) 17 October 2014
The expert advise and suggestions made by expert Mr. Kumar Doab is highly appreciable and very useful to the author, who may follow the same and if necessary take the help of local lawyer too in this regard.
MRINAL KANTI SAHA
(Querist) 19 October 2014
Thanks to both the Honorable Advocates. Now, I want to disclose more information in details which would be clear to the honorable Advocates and I think that automatically I will get the correct and best advise from the Honorable Advocates, in this subject.
Please, note the following points :
(1)I was only the Diploma Holder in Mechanical Engineering with 17 years experience in Industrial Marketing in June,2009.
(2)In the response of one Advertisement in the daily Newspaper at Kolkata, I had applied to the Advertiser, through their E-mail ID in the month of June, 2009.
(3)Then the said Advertiser / Company called me for the interviews, totally for the 3(three) times and finally they selected me for the Post Of "BUSINESS MANAGER (SALES)" for looking after their Business, based on Sales w.e.f.01.09.2009. There was only one VACANCY in the said Post at that time.
(4)The Company issued my Appointment Letter on the Letter Head, being No.: Nil, Dated 21.07.2009. In the said letter they have mentioned my date of joining,Designation, Basic
Salary,H.R.A.,P.F.@10% of Basic & Retention Bonus amount per year. They have also mentioned in the same letter that I will be entitled for the Leave of One month per year, other than Provisional Period and the Provisional Period would be six months from the date of joining. They have also mentioned that (i) the Management could increase the Provisional Period after review of my performance and (ii) for leaving the Service by two months notice in either side.
(5)As per my Appointment Letter, I had joined in the said Company (Govt. of W.B. Registered Partnership Firm) on the exact date of joining i.e. 01.09.2009.
(6)There was no system of Attendance in the Company for myself up to 31.03.2010.
(7)During this period that means first seven months, they have given my Salaries in every month, by issuing the A/C Payee Cheque in the name of myself by calculating my Salaries as [Basic + H.R.A.+ P.F.(@10% of Basic)- Professional Tax]. The Company had paid my P.F. amount since from the first month, because they did not send my P.F. amount to the Govt.Dept.which they told me during the interviews. Though the Company has the system of P.F. for other employees with the Govt. Dept. of P.F.
(8)In every month, the company has taken my Receiving Signature of my A/c Payee Cheque for Salary,on a Register Book by affixing a Revenue Stamp of Rs.1/=, since from the first month.
(9)The Company verbally confirmed me that I had successfully completed my Provisional Period and they had requested me to sign. on the Attendance Register, since from 01.04.2010.
(10)There was no increment or no change of my Salary amount from April,2010 and the Company had not issued any letter to me regarding my completion of my Provisional Period.
(11)Starting of Attendance is the only change of my job, since from April,2010.
(12)There are no system of issuing the PAY SLIP to any employee in this Company.
(13)Now,I have verbally informed them about my better job on 15.07 2014 and requested them to release me with one month's Notice Period for my Resignation.They have also accepted it verbally and ultimately I have submitted my written "Notice for Resignation" on 31.07.2014 to continue mt service up to 31.08.2014 that means my Resignation will be effected on and from 01.09.2014.
(14)On the last day of my job i.e. on 30.08.2014 (31.08.2014 was SUNDAY)the Management told me that they would clear my all the dues within on month from my date of Resignation i.e. within 01.10.2014.
(15)I have requested them to pay my all the dues for the several times over phone and on my personal visits at the Company,but not through any letter till today.
(16)Now, one of the retired and service extended employee of the said Company is guiding / mis-guiding the Management by telling them to pay my Leave Encashment of 59 days only, because I have resigned by having the Pending Leaves of total 59 days in my hand. He is telling that I should not get the Gratuity, because according to the Attendance Register, I have worked their only for FOUR YEARS AND FIVE MONTHS.HE IS ALSO ADDING THAT "PROVISIONAL PERIOD IS NOT ENTITLED TO THE GRATUITY". Now,the Management is confused. I have thought to wait up to 31.10.2014 and then I will submit my request letter for Gratuity to the Company on 01.11.2014. If the Company will not pay my Gratuity,then I want to take the LEGAL STEPS in against the Company, even through CRIMINAL PROCEDURE ALSO.
PLEASE, GUIDE ME ABOUT THE LEGAL STEPS IN THE SAID CONDITION. AWAITING FOR YOUR KIND AND SYMPATHETIC ADVICE AT THE EARLIEST.
Kumar Doab
(Expert) 21 October 2014
Everything has already been discussed.
Leave: Leave policy of the company can not be inferior to enactments applicable to the establishment.
If it is a commercial Establishment then it can not be inferior to West Bengal Shops and Commercial Establishments Act. Of course it can be superior. As per this enactment leave is applicable as per length of services that includes Probation Period or provisional Period, or whatever you may call it.
Leave encashment shall also be as per this enactment it can not be inferior to West Bengal Shops and Commercial Establishments Act. Of course it can be superior.
Annual Wages/Annual pay Package/Salary etc: Can not be less than the amounts stated in appointment letter, revision letter etc.
Salary Slip has to be issued.
Gratuity: It shall be payable as per last drawn Basic+DA. The length of service includes from Date of joining to date of leaving. The A/c payee cheque, deduction of professional tax, etc are all proof of employment. You may submit FormI under proper acknowledgment.
PF: If PF has been deducted but has not been deposited with EPFO then it is fraud and you can lodge complaint with RPFC.
MRINAL KANTI SAHA
(Querist) 22 October 2014
Thanks again, Sir. Now, please tell me that "Where it is written that provisional period is considered and calculated as the time period of job, during the calculation of Gratuity.
Because, I have talked with the Company and they told me to show the documents where it is mentioned that "PAYMENT OF GRATUITY SHOULD BE CALCULATED BY CONSIDERING THE PROVISIONAL PERIOD THAT MEANS FROM THE FIRST DATE OF JOINING IN THE COMPANY". IS IT IN THE GRATUITY ACT, 1972 OR IT'S ANY AMENDMENT ? TO GET THE GRATUITY , IT IS URGENTLY REQUIRED BY ME TO SHOW THE COMPANY. So, I am waiting for your kind response at the earliest.
Kumar Doab
(Expert) 22 October 2014
As already suggested submit Form I.
The employer shall quote reason if it wants to decline.
Dont chat.Act.
