Seeking help on gratuity
ajay
(Querist) 10 March 2015
This query is : Resolved
I am working for Software industry(works 5 days a week) from last 4 years and 192 days. i consulted about grauity to HR and he is claming that Clause 2A.1
"(1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order [***] treating the absence as break in service has been passed in accordance with the standing order, rules or regulations governing the employees of the establishment), lay off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act."
of continuous service is applicable for me instead of 2A.2.a.i.
"(2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer -
(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -
(i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week;"
I can share the email communication with you.Can you please help me on two things. 1.)my eligiblity for gratuity.
2.)if eligible,neccesary supporting document/argument.
3)Can i fill form I as only 10 days of my relieving.
4)one copy of Form I will be sufficient addressing Employer?
Thanks in advance.
P. Venu
(Expert) 10 March 2015
You are eligible to get the gratuity.
Kumar Doab
(Expert) 10 March 2015
Repeated Query:
http://www.lawyersclubindia.com/experts/Seeking-help-on-gratuity-queries-527221.asp#.VP67BdKqqko
ajay
(Querist) 11 March 2015
Sir,I have attached mail conversation with HR for your kind reference which i forgot to attached with previous query.
Kumar Doab
(Expert) 11 March 2015
No attachment is found in other thread too.
Attachment option is not provided in Experts section.
Don't bother on emails.
Rather show these to an able Labor Law Consultant/service matters lawyer/law firm in person and let them draft your representations if required.
Submit FormI...........of course under proper acknowledgment.
T. Kalaiselvan, Advocate
(Expert) 12 March 2015
As correctly observed by experts, you are eligible for gratuity, you can fight it out legally if the management declines to accede to your claim.
ajay
(Querist) 13 March 2015
Can someone tell me the approximate expenses if I go ahead with legal procedure against my organization. I wanted to weigh it against the gratuity amount which I am eligible for.
Kumar Doab
(Expert) 14 March 2015
There is no expense for submitting FormI.
Submission of FormI is not litigation.
There is no expense fro approaching ALC/DLC at your location.
Unions (Employee's/Trade Unions) of which you are a member may ask to deposit a few hundred rupees in welfare funds or so.
You have to settle the lawyer's fee with your lawyer on your own.It may vary from lawyer to lawyer.
You may do some work on your own too.....................and instead of asking here and there may personally visit CGIT/Labor Court and inquire. The fee may not be much.
ajay
(Querist) 22 June 2015
Experts,Thanks for your guidance.I submitted the Form I to organisation for which i was working and today got response below,
"As confirmed by legal ( Pallavi Pathak)-, You are not eligible as you have not completed 190 days of actual working days (including earned paid leave) during the year. Please note that one cannot read the act in isolation. It has to be read with the our trust rules and the funds are managed by"
As per my calculation i had completed 203 days from 30 August 2014 to 20 March 2015.30 August 2010 was my joining date.
Can you please let me know whether i should count Saturday,Sunday and Public holidays.
if i am on right track,then please let me know the next step for my case.
Kumar Doab
(Expert) 23 June 2015
Since a reference has been made to 'Our Trust Rules' you may download/demand certified copy of the Trust Rules etc!
2012 was a leap year.
All off days/holidays are counted.
The employer, HR, legal cell personnel in connivance are trying to rake up the issue ‘Actually worked…………Actually employed’…………………that has already been clarified by courts of law.
It should have no force in your case.
Don’t remain entangled with HR, legal cell and escalate to appointing authority, MD, Chairman……………………….and don’t keep on waiting for ever.
The Payment of Wages Act 1972 applies to the establishment (Software Company) and the trust if any formed to manage the Gratuity has to adhere to the Act. The trust can not form rules that violate the Act.
If the Funds are managed by say LIC then employer can not retain even a penny from the amount released by LIC even if the amount payable as per formulae of calculation of Gratuity is lower than amount released by LIC……
LIC is no authority to frame Gratuity rules.
Legal Cell personnel or lawyer or law firm of the employer is no authority to frame any rules for the payment of Gratuity and can not render advise to not to pay Gratuity.
The penalty and punishment including jail time is very well provided for in Sec 9 and it is clearly stated ::::: ‘Whoever avoids to pay Gratuity………………’
The employer can not pass the buck to its Legal Cell or even LIC.
Even if LIC has not released the Gratuity as per T&C of the policy firmed up by employer with LIC ………………….the employer has to release the Gratuity from its own resources.
Since you are unable to handle the matter on your own, entrust it to your counsels in Employee’s/Trade Union leaders, an able Labor Law Consultant/service matters lawyer/law firm.
Your counsels can draft and structure your communications/representations/case.
You may wait for advise by learned experts/members.
Beyond this I have nothing more to add.
Kumar Doab
(Expert) 23 June 2015
I have gone thru the extract of the email posted by you once again.
"
"As confirmed by legal ( Pallavi Pathak)-, You are not eligible as you have not completed 190 days of actual working days (including earned paid leave) during the year. Please note that one cannot read the act in isolation. It has to be read with the our trust rules and the funds are managed by"
{ Lay emphasis on ............'cannot read the act in isolation. It has to be read with the our trust rules'}
As per the Act:
Registration of Establishments
every employer shall get his establishment registered with the controlling authority in the prescribed manner and no employer shall be registered under the provisions of this section unless he has taken an insurance or has established an approved gratuity fund
The email from the company gives another employee rather a meritorious opportunity to penalize another employer and its cronies in HR/Legal cell.
Approach your counsel(s).
You may wait for advise by learned experts/members.
Beyond this I have nothing more to add.
