Notice period deduction from gratuity

1. Notice Period; of 90days may not be neccessarily be applicable in your case.

You may confirm:

Whats is this establishment; Commercial,Industrial?

What is its line of business?

What is your designation and nature of duties?

Since how long you have been working and located in which state?

Do standing orders apply and certified and applicable to yourt desigantion?

You are confirmed or not? etc etc 

Has the notice period been inserted in appointment letter or corrigendum or subsequent communications and accepted by you?

Whats is rate of notice pay mentioned by employer e.g.; @ Basic/Gross/CTC?

What rate it applies if it initiates termiantion?

2. Gratuity: The notice pay can not be adjusted in Gratuity.

Forfeiture of gratuity has been explained in the Act, and it has be a speaking order after opportunity of natural justice.

Did the company supply 'Notice of Determination of Gratuity'?

Demand to supply it? Don't compromise on it?

Did you submit FormI?

Who has deeducted :HR or employer/appointing authority/MD/Board?

Who has reversed; HR or employer/appointing authority/MD/Board?

Who has declined to pay interest: HR or employer/appointing authority/MD/Board?

3. If company has not paid Gratuity even if no application was made by employee, within 30days from LWD, then interest @ 10% pa for the delayed period is to be paid.

Employer ha s no right to appropriate your Gratuity towards your notice  perid salary. You may forfeit your Gratuity only in the following two circumstances:

FAQ  2: Can employer forfeit Gratuity, even if employee has completed 5 years?

• If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
• If the service of such employee have been terminated for any act which constitutes an offense involving moral turpitude, provided that such offense is committed by him in the course of his employment.
• But that is not the case here. He has to pay your full slary. All these you can agitate before  a Labor court and recover your dues.If you appreciate this answer please click the  thank you  button on this forum.
•  

Forfeiture of Gratuity can not be at the whims and fancies of employer or personnel designated by employer say ;HR personnel.

The intent seems to be to avoid payment of Gratuity ( + interst).

This is offence and pnalty and punishment with jail term can be awarded to 'Whoever' avoids to pay Gratuity.

You may find the following thread and ilustrations relevant:

https://www.lawyersclubindia.com/forum/details.asp?mod_id=90740&offset=2

Hello Mr. Kumar,

Please find the response on your querry even i agree to pay the recovery amount as earlier in my Resignation email.

1. Notice Period; of 90days may not be neccessarily be applicable in your case.

You may confirm: as per Company Policy the Notice period is 90 days and No buyout 

Whats is this establishment; Commercial,Industrial? It is a IT & ITES company

What is its line of business? Company is into IT Software development & BPO services

What is your designation and nature of duties? I worked there as Asst. Manager in Procurement

Since how long you have been working and located in which state? Iam working from 2008 and it is in Gurgaon,Haryana

Do standing orders apply and certified and applicable to yourt desigantion? I have no idea on this

You are confirmed or not? etc etc Yes i am Confrimed employee

Has the notice period been inserted in appointment letter or corrigendum or subsequent communications and accepted by you? In appointment letter it is one month ,later the company changed teh Ploicy and floated in Email

Whats is rate of notice pay mentioned by employer e.g.; @ Basic/Gross/CTC? as they annouched there will be no buyout of Notice period

What rate it applies if it initiates termiantion? 

2. Gratuity: The notice pay can not be adjusted in Gratuity.

Forfeiture of gratuity has been explained in the Act, and it has be a speaking order after opportunity of natural justice.

Did the company supply 'Notice of Determination of Gratuity'? NO

Demand to supply it? Don't compromise on it? NO

Did you submit FormI? NO

Who has deeducted :HR or employer/appointing authority/MD/Board?HR or employer

Who has reversed; HR or employer/appointing authority/MD/Board?HR or employer

Who has declined to pay interest: HR or employer/appointing authority/MD/Board?HR or employer

3. If company has not paid Gratuity even if no application was made by employee, within 30days from LWD, then interest @ 10% pa for the delayed period is to be paid.

Did you have any authority to sanction (not just recommend); leave/increment/appoint/terminate.

Can anyone amend/change/cancel……………….your recommendations.

Approach a very able counsel specializing in Labor/service matters ASAP.

Your counsel may examine your nature of duties on record, and opine that;

You can lodge complaint;

With Inspector appointed under Punjab Shops & Estbs Act ( Haryana Follow it)..............(If you are covered by the def. of employee as in the Act.)

O/o Labor Commissioner; if you are covered by the labor law enactments e.g; if you are covered by the def. of 'Workman' as in the ID Act

Inspector appointed under Payment of Wages Act , If you are covered by the def. of wages as in the Act. ( This Act does not discriminate between ‘Workman’ and ‘Non Workman’).

Controlling Authority of Gratuity

There are many IT/ITeS employee's unions and have been embraced by Trade Unions and have done a good job.

You can seek support and guidance from them.

e.g;

ON paramaters like;"Do standing orders apply and certified and applicable to yourt desigantion? I have no idea on this."

If state govt. has not granted any exemption then the standing orders (Model /Certified) should have been displayed at a conspicious place in establishment. Employee can obtain acertifid copy from employer say against a nominal cost say Rs.10/-.Employee and anyone can opbtain copy from certifying officer e.g; DLC against a nominal cost say Rs3/page.

If applicable these shall prevail upon appointment letter and any revision thereafter in service coditions e.g; Notice Period.

As per Model standing orders max. notice period applicable to Probationer is NIL and confirmed employee is 30 days and notice pay in lieu of notice period does apply to both employer and employee.

https://hrylabour.gov.in/page.php?module=know_about

As an employee you should be aware of standing orders.

As an employee you should be properly informed.

Such matters have been discussed in many thread at LCI e.g;

https://www.lawyersclubindia.com/forum/Notice-period-during-probation-67570.asp

You may go thru and relate with Haryana.

Information Technology Policy:

13. Self-certification/exemption from various Acts : Self-certification/exemption for the IT Software Industry shall be permitted as far as possible regarding requirement of the Factories Act, Employment Exchange (Notification of Vacancies Act), Payment of Wages Act, Minimum Wages Act, Contract Labour (Regulation and Abolition) Act , Workmen Compensation Act , Haryana Shops and Establishments Act ; and Employees State Insurance Act.

https://www.haryana.gov.in/portalapp/citizens/policies/IT_Policy.pdf

• Exemption for the IT and Software Industry under Haryana Shops and Commercial Establishment Act., (Section 9&10), on account which any employer of an IT Industry is at liberty to run his establishment without any restriction of time schedule of opening and closing hours including the close day and Industrial Dispute Act on account which the Government is competent to declare any Establishment of IT Industry as public utility service under clause 2(n) of the Act for specific period not exceeding six month at a time .

(Labour Deptt. Notification Nos.6/15/2000-1 lab dated 13.6.2000).

• The State Government is also contemplating to exempt the IT Industry from the operation of section 30 of the Haryana Shops and Commercial Establishment Act with a view to encourage the employment of women by allowing the employer to have the services of women workers during 24 hours.
• The State will declare awards of excellence for outstanding performance in exports/domestic segment/employment generation.
• Local Area Development Tax(LADT) exempted for importers of goods of IT Industry.

(Prohibition, Excise and Taxation Deptt. Notification No. S.O. 66/Hr,Ord.102000/S. 11.2000 dated 5.5.2000).

https://haryanait.gov.in/New%20htmls/Incentives.htm

Pursue;

The Punjab Shops and Commercial Establishments Act

The Punjab Shops and Commercial Establishments Rules

23. NOTICE BY EMPLOYEE.- (1) No employee, who has been in the service of the employer continuously for a period of three months, shall terminate his employment unless he has given to his employer 53[thirty] days’ previous notice or pay in lieu thereof. (2) Where an employee contravenes the provisions of sub-section (1), his employer may forfeit his unpaid wages for a period not exceeding 1 [ thirty ], days

https://hrylabour.gov.in/page.php?module=know_about

https://hrylabour.gov.in/docs/labourActpdfdocs/The_Punjab_Shops_and_Commercial_Establishments_Act_and_Rules.pdf