Clarity between gratuity eligibility service (5 or 4.8 yrs)?

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@ Harsha, Sripati,

Refer Sec 2A: 2(a) (i) (ii), which has been discussed many times in this thread and other threads at:

https://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.Ubx2VeeAqWM

The date of retirement from company (LWD) has already been communicated to you.

You can submit FormI 30 days before date of retirement.

HR is not your employer.

Submit FormI under proper acknowledgment to o/o appointing authority/MD by redg. post (avoid speed post/courier). 

You should also draw the attention of this HR person to word “WHOEVER” in :

Section: 9
Penalties.

(1) Whoever...........................

............ Provided that where the offence relates to non-payment of any gratuity payable under this Act, the employer shall be punishable with imprisonment for a term which shall not be less than [36] [Six months but which may extend to two years] unless the court trying the offence, for reasons to be recorded by it in writing, is of opinion that a lesser term of imprisonment or the imposition 01; a fine would meet the ends of justice.

Hi,

I joined my current organization on 6 Feb. 2009. I have resigned from current organization on 20 Sept 2013 and going to complete notice period by 20th Nov 2013.

Till this time, I am completing more than 4.9 years. I asked in my organization regarding gratuity. But they are saying that person is eligible for gratuity only if he has served 5 years with us.

Organization is following 5 days working policy.

Are there any amendments regarding this or am I eligible for gratuity?

Thanks

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@ GN,

The query you have posted has been discussed in this thread many times.

Refer Sec 2A: 2(a) (i) (ii), which has been discussed many times in this thread and other threads too.

https://www.lawyersclubindia.com/experts/Gratuity-law-420856.asp#.UlEEvdKAqWM

https://www.lawyersclubindia.com/experts/Applicablity-of-gratuity-427216.asp#.UlQXmtKAqWM

The Section 2A was inserted in the Act to clarify the applicability and explanation of yearly service. This section is elaborated and illustrious and is self explanatory.

Final date of retirement (resignation) from company (Last Working Day) has already been communicated by you to company.

You can submit FormI one month before date of retirement.

Don’t rely upon verbal replies and even written replies of the company.

Submit FormI under proper acknowledgment.

This is the first step you need to take.

Don’t remain entangled with HR. HR is not an authority and HR does not decide which notification is to be issued by govt and which section is to be inserted in the Act that is Statue.

If you are not able to handle the matter on your own entrust it to your lawyer.

Dear Concern,

Kindly let me know if the employee worked for 10 years in one company and availed the Gratuiy payment & again he worked with another organization for 6 years can he/she claim the same from this company also?

Regards

Priti singh

Hi ,
           I am sivaraj. I am currently working in Private Ltd company. I am going to complete 5 years of employement service.
Details are below :

Date of Join : 9th March 2009

Date of Releave : 28th Feb 2014.

So, totally 4 years 11 month and 7 days completed totally as of today. My office working days 3rd and 5th saturday will be working day. So far I took 10 days leave and I am having 16 days EL(Annual Leave or Earn Leave).

Please tell Whether I am elgible or not for Gratuity?

Dear Sir,

              Good afternoon. I have been working in the current organization from June 3, 2009. I have put down my 3 months notice on December 31, 2013 and relieving on March 31st. I have completed 4 years and 10 months. People in the organization are saying that I have to complete 5 years. Am I eligible for applying Gratuity?

This question has been addressed innumerable times in this thread.

The employee can submit FormI one month before the date of retirement (resignation. Of course under proper acknowledgment.)

During employment you may demand to supply the notice of determination of Gratuity.

After separation, you may submit in writing (preferably by redg. Post) to good offices of appointing authority, MD that the notice of determination of Gratuity has not been supplied to you despite representations in office/by email…………………….dated…………………..to Mr/Ms……………………….and FormI is attached/was submitted and copy with acknowledgment issued by company is attached.

The employer should pay Gratuity within 1 month of being eligible or shall have to tender interest @10%pa………………….

Request your support in solving my querry related to gratuity.Presently Iam working as an officer in a Pvt.Scheduled bank at Kerala.I had joined the bank on 3-11-2009 and inclusive of 90 days notice period ,i will be resigning on 28-08-2014.While doing the calculations it's found i will be completing continous 4 years and 9 months and 22 days.My querries are as below.

1)Iam I eligible for gratuity considering 4 years and 8 months as an employee with pvt.bank   ?

2)The corporate office or the registered headquarters of our bank is at Bangalore and Iam working at kerala.so which rule of Gratuity applies here?

3)If Iam asking my organisation for a gratuity and If I get the reply ineligble,where should i approach for my justice?(Infact I had already raised a querry through Internal communiction regarding gratuity and has recieved the reply continous service of 5 years)

Request your valuable reply regarding the same. 

Regards,

Varghese

Dear Sir,

I have a doubt in gratuity. One of My friend working in a private organisation . because of sick health he was unable t attend his work for one month, now he is ready to join in the same organisation but the HR is saying he will not consider it as continuous service although my friend is ready to submit medical certificate he is not accepting, my friend completed his 4 years of service with the same organisation. Is my friend is eligible for continuous service or not please clarify my doubt.

If he is eligible for continuous service to whom we need approach to file case ? 

@ Sridhar,

Is this HR competent leave sanctioning authority, and appointing authority, approved by Board of the company?

Has the employee informed sickness to office?

It shall be difficult if employee is submitting medical certificate and onus may fall on the HR personnel.

What is this establishment: Commercial, Industrial, Small Enterprise and Redg. office of the company and employee are located in which state?

To

     Kumar Doab

Wit continuation to my previous doubt,

1. Is this HR competent leave sanctioning authority, and appointing authority, approved by Board of the company?

Yes

@Sridhar,

You have posted that:

---“He took approval for 3 days, later the issue became serious and he took 1 month”

The initial leave application for was casual leave or sick leave and extension sought was for sick leave………………….?

Later did he inform to company the need for extension of leave in writing, by leave application (supported by doctor’s advice for bed rest or without it) and does he have copy and proof of delivery? 

Did he send it by normal post, by messenger, or informed by phone?

Did the leave sanctioning authority inform in writing the approval or declinature  of original leave of 3 days and extension of leave  to 1 month?

Did the authority initiate any action e.g. written communication, show cause notice alleging misconduct by employee/unauthorized absence?

---“ Its a private ltd company. It is in the state of Andhra Pradesh.”       

Your response is not sufficient.

Being a HR person yourself you should clarify::::What is this establishment: Commercial, Industrial, Small Enterprise, as the leave rules for the establishment are as per enactments applicable to the establishment and leave policy of the establishment can not offer provisions that are inferior to the enactments applicable to the establishment.

The leave policy can offer superior provisions.

The company should have displayed the registration certificate at a conspicuous place e.g. near entrance, on notice board………………….hence the employee and you can find out.

If it is commercial establishment the employee may look into Andhra Pradesh

Shops and Commercial Establishments Act and rules framed under it, e.g;

Sec;30,33,34,47…………….

All of the enactments should be available on the website of Dept. of Labor of Andhra Pradesh and you can also buy the latest version from market.

Has the company circulated the leave rules by its printed version to all employees?

The leave rules are as per standing orders of the company, or negotiated settlement with employees?

How many employees are employed in it?

What is its line of business e.g: IT, Insurance, mutual funds etc?

What is the designation and nature of duties of employee?

The designation alone does not decide employee shall be covered as per def. of ‘Workman’ as in ID Act, ’Employee’ as in Pradesh Shops and Commercial Establishments Act.

Depending upon his coverage he can approach Inspector appointed under the enactments applicable to the establishment, o/o Labor Commissioner……………….. …or Civil Court.

If he is convinced that this HR person is bent on creating artificial break in service so as to deny eligibility of Gratuity, and he has evidence then  he may go thru word’ WHOEVER’ in Sec:9 of Payment of Gratuity and build his case accordingly……………………..

Do standing orders apply to it, if yes employee and you may look into the standing orders (certified/Model) extended to the designation of employee.

Model Standing Orders: Sec9,10, 13, 14……….

Or Sections on leave in Certified Standing Orders, and in Leave policy/Leave Rules of the company may be looked into.

It is reiterated that leave policy of the establishment can not offer provisions that are inferior to the enactments applicable to the establishment. It can offer superior provisions.

The employee may approach ASAP employees unions, Works Committee (if any in the establishment), Trade Unions ( e.g; CITU, INTUC, AITUC, BMS …………Unions know precise ways to handle such matters.), Lawyer/ Law firm before making any submission in writing and structure his representations to appointing authority, and if appointing/leave sanctioning authority then  MD, Chairman, Board of the company……………………..and explain his position including information sent by messenger, colleague, union members, by phone, email , normal post etc…………….and exercise his lien on employment, uninterrupted service.

It shall be appropriate if his representations are structured and drafted by a competent and experienced labor consultant/service lawyer.

Ask this employee to become member of unions and be properly informed.

A properly informed employee can defend his rights better than an ill informed employee.

 Online discussions have its own limitations. Show all docs on record to your lawyer, understand the merits and proceed under expert advise of your lawyer. The lawyer that has analysed the docs on record and inputs can advice you the best.

 Hope this shall suffice.

I joined a Gurgaon based firm on 27-Jul-2009 and relived on 19-May-2014.(6 days working & 2nd saturday off)) 
I came to know that I should get gratuity but my company HR/Accounts deptt is denying to give the amount in full & final.
Please advise if I am eligible for gratuity or not?

I joined a Gurgaon based firm on 27-Jul-2009 and relived on 19-May-2014.(6 days working & 2nd saturday off)) 
I came to know that I should get gratuity but my company HR/Accounts deptt is denying to give the amount in full & final.
Please advise if I am eligible for gratuity or not?

@ Prashant Pathak,

You have worked for >240 days in 5th year.

Similar query has been answered in this thread many times, in affirmative.

You may go thru the thread carefully and many other threads that are in this section e.g;

https://www.lawyersclubindia.com/forum/Gratuity-not-being-paid-103198.asp#.U5HeQHKSwb8

.

The HR has declined verbally or in writing?

You may submit FormI by redg. post.

If you can't handle the matter on your own entrust it your Labor Consultant/Service lawyer.