I have worked with a company for 5 years and 6 months. I have applied for leave from 27th July to 10th August but didn't come back. I informed the reporting manager that I am not coming back and I want to leave the organization. There was no written or email communication, only verbal. Subsequently, my company's HR sent a notice to my Mumbai address to report within 2 days on 12th August. They sent another letter on 14th (stating I am absconded), and then a termination letter on 17th August. Now, HR claims that I am not eligible for gratuity and is asking for recovery as the notice period was not served. Kindly suggest me on this matter.
Regards,
kmsingha
From India
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Regards,
kmsingha
From India
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Dear KMSingha,
To consider whether you are eligible for gratuity or not, a few details are necessary. Please let us know:
- The type of industry or company you were engaged in and what type of business it was.
- How many employees were working in the organization.
- Whether you have some documents to show that you have completed a service period of 5 and a half years.
- What type of job you were doing.
- Whether you were initially appointed as a trainee/apprentice, and if so, for how long.
All these points will certainly help us guide you through.
Adv. K. H. Kulkarni
From India, Kolhapur
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244To consider whether you are eligible for gratuity or not, a few details are necessary. Please let us know:
- The type of industry or company you were engaged in and what type of business it was.
- How many employees were working in the organization.
- Whether you have some documents to show that you have completed a service period of 5 and a half years.
- What type of job you were doing.
- Whether you were initially appointed as a trainee/apprentice, and if so, for how long.
All these points will certainly help us guide you through.
Adv. K. H. Kulkarni
From India, Kolhapur
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Dear KMSingha,
Your gratuity will be given. Are you sure that your tenure of working is more than 5 years? Do you have any documents to prove this? If you do, then there is no problem, and you will receive your gratuity.
Secondly, things like taking long leave have to be requested formally in an email to your immediate boss.
Thirdly, you should avoid discussing your plans to leave the job with your seniors, as they might misinterpret and convey it inaccurately to the administration.
Thank you.
From India, Hyderabad
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Your gratuity will be given. Are you sure that your tenure of working is more than 5 years? Do you have any documents to prove this? If you do, then there is no problem, and you will receive your gratuity.
Secondly, things like taking long leave have to be requested formally in an email to your immediate boss.
Thirdly, you should avoid discussing your plans to leave the job with your seniors, as they might misinterpret and convey it inaccurately to the administration.
Thank you.
From India, Hyderabad
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Dear Kulkarni Sir and Tony Sir,
Thank you for your suggestion. Yes, I have the appointment letter dated 27th Feb 2008. I have been continuously working since then. The company is running its business nationwide and has more than 5000 employees. I have been working in the company's payroll department.
From India
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Thank you for your suggestion. Yes, I have the appointment letter dated 27th Feb 2008. I have been continuously working since then. The company is running its business nationwide and has more than 5000 employees. I have been working in the company's payroll department.
From India
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Dear Singa,
Please go directly to your company and inquire about your settlement with all claims. If they are not ready to provide such a settlement, you must visit the Assistant Commissioner of Labour (Gratuity Section) in the district and file a complaint about what has been happening.
Thank you.
From India, Chennai
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Please go directly to your company and inquire about your settlement with all claims. If they are not ready to provide such a settlement, you must visit the Assistant Commissioner of Labour (Gratuity Section) in the district and file a complaint about what has been happening.
Thank you.
From India, Chennai
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Dear K. M. Singha,
In your post, you have not stated the type of job you were doing in the company and how many employees were working in the office where you were employed. Also, please let us know what type of business the company is engaged in.
Thank you.
From India, Kolhapur
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In your post, you have not stated the type of job you were doing in the company and how many employees were working in the office where you were employed. Also, please let us know what type of business the company is engaged in.
Thank you.
From India, Kolhapur
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As per sections 13 and 14 of the Payment of Gratuity Act, notice pay cannot be adjusted from gratuity. Any deduction or forfeiture is allowed only if an employee is terminated by an action of the employer for committing certain misconduct specified in section 4(6) of the Act.
Varghese Mathew
09961266966
From India, Thiruvananthapuram
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Varghese Mathew
09961266966
From India, Thiruvananthapuram
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Dear Mr. K.M. Singha,
First of all, I would like to inform you that your company has the right to hold/waive off your gratuity amount. As per the Payment of Gratuity Act, gratuity paid to an employee is a token of gratitude for the loyalty of an employee for more than 5 years in the same organization.
According to the act, the company can hold the gratuity amount in case of any behavior/misconduct found by an employee. Based on your previous discussion, it was found that you were absconded from the company. In fact, they have issued you a show-cause notice to explain, but you neither appeared physically in front of them nor sent a reply by registered post as you had informed your immediate supervisor. This could be considered misconduct, such as starting absenteeism without informing the company, and in that case, the company can hold your gratuity amount.
Regarding the recovery of the notice period, the company can recover the notice period salary from you as per the company's HR policy, as it should also be mentioned in the terms and conditions of your appointment letter. This is a separate issue from gratuity.
From India, Delhi
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First of all, I would like to inform you that your company has the right to hold/waive off your gratuity amount. As per the Payment of Gratuity Act, gratuity paid to an employee is a token of gratitude for the loyalty of an employee for more than 5 years in the same organization.
According to the act, the company can hold the gratuity amount in case of any behavior/misconduct found by an employee. Based on your previous discussion, it was found that you were absconded from the company. In fact, they have issued you a show-cause notice to explain, but you neither appeared physically in front of them nor sent a reply by registered post as you had informed your immediate supervisor. This could be considered misconduct, such as starting absenteeism without informing the company, and in that case, the company can hold your gratuity amount.
Regarding the recovery of the notice period, the company can recover the notice period salary from you as per the company's HR policy, as it should also be mentioned in the terms and conditions of your appointment letter. This is a separate issue from gratuity.
From India, Delhi
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Mr. K M Singha,
You have made a mistake by not submitting your resignation. You are supposed to complete the formalities of the clearance procedure. As per the act, gratuity can be kept on hold if an employee is involved in the loss of the capital of the management or engaged in acts of moral turpitude.
Please complete the clearance formalities and then request your terminal benefits.
Regards,
Satish
From India, Bangalore
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You have made a mistake by not submitting your resignation. You are supposed to complete the formalities of the clearance procedure. As per the act, gratuity can be kept on hold if an employee is involved in the loss of the capital of the management or engaged in acts of moral turpitude.
Please complete the clearance formalities and then request your terminal benefits.
Regards,
Satish
From India, Bangalore
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Mr. Singha Ji,
@Mr. Anonymous and @Mr. Satish, are absolutely right in guiding you. You worked in a company for 5+ years and are eligible too. However, you failed to follow the right procedure of quitting the company. First of all, you need to get yourself regularized with your problem of absconding and settle down with your clearance with them. For this, you will have to present yourself to Company management/HR. Thereafter, you can claim the gratuity as per the laid-down procedures for the same.
Thanks and regards,
Bijay.
From India, Vadodara
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@Mr. Anonymous and @Mr. Satish, are absolutely right in guiding you. You worked in a company for 5+ years and are eligible too. However, you failed to follow the right procedure of quitting the company. First of all, you need to get yourself regularized with your problem of absconding and settle down with your clearance with them. For this, you will have to present yourself to Company management/HR. Thereafter, you can claim the gratuity as per the laid-down procedures for the same.
Thanks and regards,
Bijay.
From India, Vadodara
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Mr Anonymous Can you please tell the members the provisions in POG Act to the effect that gratuity is a gratitude for loyalty and can be withheld for any termination. Varghese Mathew
From India, Thiruvananthapuram
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From India, Thiruvananthapuram
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Let us first be clear of what Gratuity means. The dictionary meaning of "Gratuity" says "something given as a reward for long and meritorious service". However, upon passing of Payment of Gratuity Act in 1972, Gratuity became a right of the employee, and its non-payment became a liability calling for recovery as well as prosecution. So the old concept of bounty or reward is no longer in existence. The rules, rights, and quantum of Gratuity have been framed, and one cannot overlook them with the old concept of gratuity as the grace of the Employer.
Considering the provisions of the Payment Of Gratuity Act, generally, the employer cannot withhold the amount of gratuity. However, Section 4(6) of the act allows the employer to forfeit the amount of gratuity if the services of the employee have been terminated for acts of negligence, willful omission causing any damage or loss, then to the extent of loss or damage.
It may be totally or partially forfeited if the services of the employee are terminated for riotous or disorderly conduct or an act of violence; and for an offense involving moral turpitude committed in the course of employment.
I have some resentment over the use of the word "absconding" as referred to in the Notice. Normally, such a description is used in Criminal Law when an accused or a convict is untraceable or his address is unknown and then by moving the Court by the prosecution, he is declared as "abscond". Are the employees who are absent from work for a few days automatically become "absconding" by merely being called such by the employer? Will not this remark of the employer amount to aspersions?
So considering all, in the case of Mr. Singha, nothing of the above has happened so that he is deprived of his right to claim Gratuity.
However, it is not clear what type of job he was doing in the company.
I think Mr. Singha is fully entitled to the amount of Gratuity for his service, and as such, he must take proper steps to claim the amount.
From India, Kolhapur
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Considering the provisions of the Payment Of Gratuity Act, generally, the employer cannot withhold the amount of gratuity. However, Section 4(6) of the act allows the employer to forfeit the amount of gratuity if the services of the employee have been terminated for acts of negligence, willful omission causing any damage or loss, then to the extent of loss or damage.
It may be totally or partially forfeited if the services of the employee are terminated for riotous or disorderly conduct or an act of violence; and for an offense involving moral turpitude committed in the course of employment.
I have some resentment over the use of the word "absconding" as referred to in the Notice. Normally, such a description is used in Criminal Law when an accused or a convict is untraceable or his address is unknown and then by moving the Court by the prosecution, he is declared as "abscond". Are the employees who are absent from work for a few days automatically become "absconding" by merely being called such by the employer? Will not this remark of the employer amount to aspersions?
So considering all, in the case of Mr. Singha, nothing of the above has happened so that he is deprived of his right to claim Gratuity.
However, it is not clear what type of job he was doing in the company.
I think Mr. Singha is fully entitled to the amount of Gratuity for his service, and as such, he must take proper steps to claim the amount.
From India, Kolhapur
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Dear Mr. Singha,
I feel the company should give you your due Gratuity amount since you have worked for more than 5 years. However, check your appointment letter and designation. If your designation was "apprentice" partly during your 5 years of service, then you may not be eligible to receive gratuity. It would be better to check with the company's HR Department once again, and if necessary, approach the controlling authority under the Gratuity Act (Assistant Commissioner of Labor) in the area, who can guide you properly.
B. Dakshina Murty
From India, Hyderabad
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I feel the company should give you your due Gratuity amount since you have worked for more than 5 years. However, check your appointment letter and designation. If your designation was "apprentice" partly during your 5 years of service, then you may not be eligible to receive gratuity. It would be better to check with the company's HR Department once again, and if necessary, approach the controlling authority under the Gratuity Act (Assistant Commissioner of Labor) in the area, who can guide you properly.
B. Dakshina Murty
From India, Hyderabad
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I think you should go and meet your HR department and try to settle the matter. You have made a mistake by not giving them a resignation copy. To claim the gratuity, your employer needs to submit your resignation and your settlement copy. If you are not present in front of them, these formalities cannot be completed.
From India, Mumbai
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From India, Mumbai
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Dear all,
I met with HR, and they informed me that the FNF (Full and Final settlement) is handled by the finance department. HR will contact me once the check is ready. Today, I called one of the senior HR personnel in the company's support office. She also mentioned that gratuity will not be paid as I did not follow the correct process.
I would like to discuss this matter in detail. Kindly contact me at
.
Regards,
kmsingha
From India
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I met with HR, and they informed me that the FNF (Full and Final settlement) is handled by the finance department. HR will contact me once the check is ready. Today, I called one of the senior HR personnel in the company's support office. She also mentioned that gratuity will not be paid as I did not follow the correct process.
I would like to discuss this matter in detail. Kindly contact me at
Regards,
kmsingha
From India
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Dear team,
I need some clarity on gratuity payment. We work five days a week, totaling to 240 days in four years. However, there is a debate as some argue that gratuity should be provided for 190 days within four years. Can you provide any judgment or reference to the provision in the gratuity act for this scenario?
Another issue is regarding employees who have not completed four years but request gratuity upon retirement. Are we obligated to provide gratuity to them?
I would appreciate your valuable advice supported by relevant legal evidence. Thank you.
From India, Madras
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I need some clarity on gratuity payment. We work five days a week, totaling to 240 days in four years. However, there is a debate as some argue that gratuity should be provided for 190 days within four years. Can you provide any judgment or reference to the provision in the gratuity act for this scenario?
Another issue is regarding employees who have not completed four years but request gratuity upon retirement. Are we obligated to provide gratuity to them?
I would appreciate your valuable advice supported by relevant legal evidence. Thank you.
From India, Madras
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Dear Chithambararaj,
The Section 2A of The Payment of Gratuity Act itself says that:
*Continuous service.- For the purposes of this Act,--
(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 orders, 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;
(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; and
(ii) two hundred and forty days, in any other case;
Hope this helps you.
From India, Delhi
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The Section 2A of The Payment of Gratuity Act itself says that:
*Continuous service.- For the purposes of this Act,--
(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 orders, 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;
(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; and
(ii) two hundred and forty days, in any other case;
Hope this helps you.
From India, Delhi
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Dear arya, Do u hav any practical experience in above said matter I.e have u processed gratuity payment for above raised question?
From India, Madras
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From India, Madras
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Dear Mr. Chithambararaj,
I have never faced such a situation in my career till now. This is my 2nd job in 5 years. Normally, what I have seen is that if an employee enters the 5th year of service and wants to change jobs, they don't leave the company by calculating 190 / 240 days as they don't want to create a situation of conflict with the employer. They usually complete the full 5 years and then resign, and I have only seen one case of this so far.
I have always maintained good relationships with the employees in the organization, so they easily discuss their views with me without any hesitation. This situation arises only when there is a problem in the employee-employer relationship, which I believe both parties should handle carefully.
Thank you.
From India, Delhi
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I have never faced such a situation in my career till now. This is my 2nd job in 5 years. Normally, what I have seen is that if an employee enters the 5th year of service and wants to change jobs, they don't leave the company by calculating 190 / 240 days as they don't want to create a situation of conflict with the employer. They usually complete the full 5 years and then resign, and I have only seen one case of this so far.
I have always maintained good relationships with the employees in the organization, so they easily discuss their views with me without any hesitation. This situation arises only when there is a problem in the employee-employer relationship, which I believe both parties should handle carefully.
Thank you.
From India, Delhi
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One very important judgment on the gratuity, I would like to share with you: https://www.citehr.com/208040-madras...-gratuity.html
Whereas, on the question of payment of gratuity to an employee who has not completed 4 years, it never arises. But, as it is due to Retirement, then one important question arises here: was that employee joined your organization for the first time before these 4 years only? Or is there a Service Continuity matter? Or has that employee served your organization at any point in the past?
I am asking this because I have seen a matter in my last organization in which our HR Manager paid Gratuity to an employee with the same case (4-year service). And that was not due to any Act or Law, but only to honor that employee.
From India, Delhi
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Whereas, on the question of payment of gratuity to an employee who has not completed 4 years, it never arises. But, as it is due to Retirement, then one important question arises here: was that employee joined your organization for the first time before these 4 years only? Or is there a Service Continuity matter? Or has that employee served your organization at any point in the past?
I am asking this because I have seen a matter in my last organization in which our HR Manager paid Gratuity to an employee with the same case (4-year service). And that was not due to any Act or Law, but only to honor that employee.
From India, Delhi
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[QUOTE=bcarya;2099980] One very important judgment on the gratuity, I would like to share with you, https://www.citehr.com/208040-madras...-gratuity.html
Whereas, on the question of payment of gratuity to an employee who has not completed 4 years does not arise.
But, as it is due to retirement, then one important question arises here: was that employee joined your organization for the first time before these 4 years only..?? Or is there a service continuity matter..?? Or has that employee served your organization at any point in the past..??
I am asking this because I have seen a matter in my last organization in which our HR Manager paid Gratuity to an employee with the same case (4 years of service). And that was not due to any Act or Law, but only to honor that employee.
Dear Bcarya,
You have raised an interesting point here that if any employee has served, let's say, 4 years+ service but less than 4 years + 190 days, then he/she gets retired... Please tell me, will the employee be eligible for the gratuity. Thanks in advance.
From India, Dehra Dun
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Whereas, on the question of payment of gratuity to an employee who has not completed 4 years does not arise.
But, as it is due to retirement, then one important question arises here: was that employee joined your organization for the first time before these 4 years only..?? Or is there a service continuity matter..?? Or has that employee served your organization at any point in the past..??
I am asking this because I have seen a matter in my last organization in which our HR Manager paid Gratuity to an employee with the same case (4 years of service). And that was not due to any Act or Law, but only to honor that employee.
Dear Bcarya,
You have raised an interesting point here that if any employee has served, let's say, 4 years+ service but less than 4 years + 190 days, then he/she gets retired... Please tell me, will the employee be eligible for the gratuity. Thanks in advance.
From India, Dehra Dun
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Dear FMCG,
On the grounds of laws and acts, service less than 4 years and 190 days doesn't qualify for gratuity. There is a detailed discussion on this; you can check: https://www.citehr.com/95035-eligibi...nths-20-a.html.
Whereas, I mentioned that the above experience of mine only gives an example of the role of HR in motivating the employees and elaborating on the importance of employees to the management. One good step of management towards employee welfare will lead to several steps of employees towards the company's growth. It also helps in the retention of employees.
From India, Delhi
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On the grounds of laws and acts, service less than 4 years and 190 days doesn't qualify for gratuity. There is a detailed discussion on this; you can check: https://www.citehr.com/95035-eligibi...nths-20-a.html.
Whereas, I mentioned that the above experience of mine only gives an example of the role of HR in motivating the employees and elaborating on the importance of employees to the management. One good step of management towards employee welfare will lead to several steps of employees towards the company's growth. It also helps in the retention of employees.
From India, Delhi
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Dear Experts,
Within how many days should I register a complaint for this? What if it is more than 90 days from the date of termination? Is this possible after FNF? How many days may it take after the complaint?
From India
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Within how many days should I register a complaint for this? What if it is more than 90 days from the date of termination? Is this possible after FNF? How many days may it take after the complaint?
From India
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HR Manual (Employee Hand Book).doc