Bharat Gera
Principal Hr Consultant
Pan Singh Dangwal
Joint Manager
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
Srinath Sai Ram
Hr Manager
Riteshmaity
Labour Law Advocate
Roop1119
Hr Executive

#Anonymous

I have been working with a private company for past 4.9 years.On feb 17 it was detected that i am pregnant and as per doctors suggestion took a leave for 1 month for bed rest.i received salary for that month as i utilized my leave balance.The situation continued hence as doctor extended bed rest for one more month.I dint got any salary for march month as i exhausted my leaves.within that month i had a miscarriage.Now the manager is asking to resign as according to him i cant handle the pressure which is not true.I have even submitted the fitness certificate.He wants to go backdated in last financial year and pay me for march april and may. i will complete 5 years in this July .He is denying my gratuity saying every companies has different rules and some companies pay after completion of 4 years and 240 days and some pay after completion of 5 years.

I asked him to make my resignation date as april so that i will complete my notice period and complete 5 years on the same date.Nut he is not agreeing.Experts please help.
7th April 2017 From India, Mumbai
please Clarify what is your Gross Salary? are you an Employee covered under ESI Act?For Miscarriage, claim benefits provided in maternity benefit Act,1961, if the same is applicable.If you have decided to submit resignation, please submit the same with present date not from back date.Further, Please comply with notice period requirement as per the Terms of appointment.Til there is clarity hold your resignation letter.please do not yield to the pressures of Hr or any officer.
8th April 2017 From India, New Delhi
Please do not resign. You are entitled to gratuity payment under Payment of Gratuity Act. There is one law on gratuity and every company is obliged to follow that. Companies do not have any option. The manager is trying to bully. At your convenience you can approach gratuity authority which is labor commissioner.
11th April 2017 From India, Thane
Whatever your manager/ company is telling you is totally illegal and trying to get rid of you in order to avoid statutory compliance. As advised by others above, PLEASE DO NOT RESIGN.

1. Regarding pregnancy (whether delivery or miscarriage), Maternity Benefit Act is applicable to you if there are more than 10 employees in the company. Under the Act, you are entitled to 12 weeks paid leave and other benefits, which is now extended to 26 weeks. During pregnancy, no woman can be terminated from her service. In case you are covered under ESI Act, then you will get the maternity benefit from ESI Act. Whatever the scenario is, you are at least entitled to 12 weeks paid leave according to the old Act. So company is really doing everything illegal.

2. Regarding gratuity, gratuity is payable only upon cessation of employment. Though you are advised not to resign at this stage, but still if you wish to resign at your own will, then comes the question of calculation of gratuity. Gratuity is payable for continuous service of 5 years i.e. if you worked 4 years + 240 days in 5th year, you are entitled to gratuity. Again as usual your company is misguiding you. He can tell that different companies have different rules but if you ask him to state that in writing, surely he will go hiding.

I suggest that you simply make an application under the Maternity Benefit Act seeking the maternity leave and benefit. Make such application under proper acknowledgment (most probably under registered with AD post). Surely this will take the company to the back foot.

I against suggest that you DO NOT RESIGN AT THIS STAGE. This kind of companies need a lesson.
12th April 2017 From India, Kolkata
#Anonymous
Thanks experts for taking out time to answer my query.I am highly obliged by your this gesture.

I did not wanted to resign as such as I was thinking of engaging myself in work so that I will forget my loss in miscarriage.But unfortunately I couldn't stand the mental harassment and I resigned.He agreed on 3 months notice period pay. Firstly he agreed on paying gratuity as I have completed 4.9 years and 1 day on the same day i.e.3rd april 2017 but at the time of leaving he said company has a policy of 5 years completion gratuity not even a single day less to complete 5 years.i Tried to convince him instead of considering my resignation date as backdated I.e.1st march 2017 if he considers it as 3rd april 2017 , I will complete 5 years on 2nd july 2017 and the same day I will complete my 3 months notice period as well.But he just yelled at me saying I am teaching him legal terminologies and all that.

Now the latest update is I have send a mail to founders on the very next day when this discussion had happened but haven't got any revert from them.

This weekend I will send them a reminder mail and if they doesn't revert I will go legaly.

The time has come to show these people their place.

I will keep you ll posted here.

Would love to hear from you incase if you have any better approach for this.
12th April 2017 From India, Mumbai
Since you have served your resignation, there is no requirement to consider the maternity benefit part.
After your last date of service, you have to send FORM I under registered with ad post to the company claiming gratuity. Wait for 1 month for payment, if the company does not pay so, then you have to file a case before the controlling authority against the company.
There seems to be no use of any verbal communication with the company.
12th April 2017 From India, Kolkata
#Anonymous
Thank Ritesh..the last date they have conveyed me is 31st May 2017.Along with full and final settlement I will receive the experience letter till 10th June 2017.They wont calculate the gratuity in that calculation. You want me to wait till I get the experience letters? if they will consider 31st may 2017 then I would have completed 4 years 10 months and 27 days. Do you think they will trap me in their policy terms saying we pay gratuity only after completion of 5 years not before that?
So many question I am sorry for that but just thinking in all the aspects.
Can you please help with any of your reference in labour law advocate in Mumbai.
Regards
Roop
13th April 2017 From India, Mumbai
Dear Roop ji,
You are from Mumbai. Since you have not completed 5 years of services, you are not eligible for payment of gratuity under POG Act. Law is very clear on it, in my views.
You have already tendered your resignation to your employer. Presuming that your employer has not issued you a letter of acceptance of your resignation, I would suggest, you should serve a letter to your employer immediately without spending any time stating that you tendered the letter of resignation under mental pressure and now you want to take it back.
Your employer will not accept this letter definitely and will issue you a letter of acceptance of your resignation. Therefore, you have to send this letter to him by Regd AD.
14th April 2017 From India, Mumbai
If your last date of work is 31st May, and if you have completed 240 days in that year (which I assume yes) then you will be entitled to gratuity as per my opinion.
As they have stated have stated that your full and final settlement will be done on 10th June, it is better to wait till that day (its a matter of 10 days). Once all your settlement is done and experience/ relieving letter is in your hand then you may immediately ask for gratuity by way of sending Form I under acknowledgment.
They may trap you through their policy, but remember that the Payment of Gratuity Act is above you, me and their policy.
14th April 2017 From India, Kolkata
Dear Adv. Ritesh Maity ji,
The topic of Gratuity for less than 5 years of completed service is well discussed here on this forum time and again by many experts. I also contributed in this discussion many times. There are different views on it and therefore, I stopped contributing on this subject again.
You being practicing Advocate in Labour Laws, my request to you to kindly go through some of the earlier discussions on this topic including me and help us / me to understand the Law correctly.
Thanks a lot in advance.
14th April 2017 From India, Mumbai
Dear Member,

First of all I must appreciate the enthusiasm and courage being shown by you in the hard time (for a women miscarriage is the toughest period to overcome). You have determination to get back your rights, and making efforts to find out the different ways (ethical, legal and logical) to win your fight for the justice. You have not stated whether you had ESI facility or not? If so, than the employer is not bound to pay any compensation towards “Miscarriage”. I really appreciate, in order to keep in confidential, you started the Thread with “ANNONYMOUS”, but later you have mentioned (disclosed) your name. I will suggest to remove your name, coz as you are planning (making effort), may be any known of the management also reading the thread. If you really want to fight legally than take every step from lawyer point of view.

The members (who have contributed above) are well known for their valued suggestions in the forum (specially Mr Ritesh and Mr Korgaonkar). However, they have different opinion towards gratuity.

Since you have given the resign, now taking back the resignation is not logical, the company will get idea that you have some backup plan. I would also suggest to work till the last day they allow you to work. By that time you will cover most period to qualify for gratuity payment. Meanwhile, pls don’t sign any document which resembles your entitlement for Full and Final Payment.

Rightly said by Mr. Korgaonkar as per the ACT, an employee is entitled for gratuity only after 5 years continuous service. The Term “240 days” came into existence on basis of qualifying 1 year uninterrupted service. An employee shall be deemed to be in continuous service if he has been actually employed, during the preceding twelve months, not less than 240 days. On basis of that we assumes 240 days working in the fifth year will be entitled for 1 year service (hence five year completed for Gratuity entitlement).

Though the term of 240 days for 5th year is neither provided in the Act, nor any Amendment has been issued. Still we have heard in many cases the Hon’ble court has given decision in favour of employee/s for 5th year eligibility agst gratuity payment. If the employee has worked for 240 days in the 5th year.

With regard to full and final payment I have separate opinion. Don’t accept the Full and Final amount and don’t sign over the F&F Sheet. If you can ask them to give copy of the F&F Sheet (by giving excuse to show this to your family), pls take copy of the sheet.

Later, instead accepting the F&F in response you can write letter regarding your Miscarriage and gratuity payment as well. If they don’t accept/reply to your letter, pls contact to any Lawyer, as per my opinion you will definitely win the battle.

This is my biggest conversation is a single thread, but I considered different opinions to cover most points. Hope you will find it as per requirement.

Good Luck.
15th April 2017 From India, Delhi
#Anonymous
I really appreciate pan sing ji, ritesh sir and korgaokar sir for your detailed views. I don't contribute towards ESIC. I work with a 5 day working company. If they will go ethically and accept my resignation from 3rd April then i will complete 3 months on 2nd July but they don't want to pay the gratuity hence they are going backdated and not allowing me to complete 5 years. I really don't ask for maternity claim as no claim or money can heal the pain i have gone through. I just didn't like their approach towards a loyal employee. Its not about money sir its about my dignity. As he is not allowing me to come to office. Hope you understand my situation. Incase if anyone can help me a Labour lawyer in Mumbai please help.
17th April 2017 From India, Mumbai
Stop being emotional. Emotions have no value in legal system. Think and work practically.
Since you are no longer interested in maternity benefit, then move on.
Regarding gratuity, after the last working day, send them notice in FORM I under registered with AD post. Let them refuse in writing and then only the next course of legal action can be decided.
And you have just stated that your employer is not allowing you to continue duties. If so, state the fact in writing with proper acknowledgment to the management.
Hope someone from Bombay will able to guide you to a local labour matter advocate.
17th April 2017 From India, Kolkata
Dear Advocate Ritesh Maity ji,
In my view if the last date of working is accepted as per Company, the company is definitely going to deny payment of gratuity to her with in the framework of Law and she will not have any remedy. Judgement of High Court Madras and Judgement of High Court Kerala has no binding effect in the jurisdiction of High Court Mumbai. The Judgement of Supreme Court quoted by many members in this forum has no relevance to payment of Gratuity.
I advise the lady to approach any of the practicing Advocate in Mumbai without spending much time with all relevant papers in connection with her employment and resignation.
Keshav Korgaonkar
Advocate and Legal Advisor
Mumbai
17th April 2017 From India, Mumbai
Hi korgaokar sir,
As you are in Mumbai only can you suggest me any help or may be inbox me your number. Ritesh ji and you both know the inside out of this issue.
I would really appreciate your support.
24th April 2017 From India, Mumbai
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