Hello everyone.
I am Umesh Sharma, worked as an Assistant Professor in a private engineering college on regular basis for 4 years and 276 days (from 3-8-2012 to 5-5-2017). At the time of resignation, HR staff told me that i was not entitled for gratuity as it was not completed 5 years. But recently i got that 4 years and more than 240 days are sufficient to entitlement of gratuity in India. Then i had sent an gratuity application in december 2018 but not got any response till now. If they dont respond to my application, where should i complaint regarding this matter?
File case to Labour Court for Gratuity Purpose. It is appropriate authority to decide 240 days or 5 yrs criteria.
Dear Anony,
It is mandatory to serve a period of 5 years of continuous service to be eligible for Gratuity. In your case, you are not eligible for gratuity as you did not serve for 5 years.
Section 4 of Payment of Gratuity act mandates completion of 5 years of continuous service to be eligible for gratuity.
Speaking of 4 years and 240 days: unless you are in the state of TN or your company policy/appointment letter states completion of 4 years and 240 days for gratuity eligibility; you are not eligible for gratuity before completion of 5 years of continuous service.
What learned member Rahul has mentioned above is correct.
Not withstanding file a complaint with the Labour commissioner of the area with full details and see whether the Commissioner is ready to take up the matter.
5 years service is must and in last year 240 days service is mandatory. for being given gratuity.
There was a verdict in TN about gratuity,but automatically other states are not bound by the verdict.
Though in principle the law needs an employee to put 5 years of continuous service to be eligible for gratuity, you have nothing to lose if you proceed to file your claim and also cite the judgment of the Madras High Court to emphasize your argument. After all you got nothing to lose but may stand to gain if the Court accepts the argument and you get to receive the money. There is nothing to stop you from filing the claim and moving forward. Advise is for those who are about to resign but in a dilemma whether the amount would be received or not for gratuity. They can hang around till completion of 5 years of service and be rest assured. The judgment of the hon'ble court makes sense in the calculation of the fifth year issue. After all end of the day anything better for the employees is always welcomed by all the Courts so why not here.
Thanks and Regards
Indeed there is nothing to loose but time and effort in case you decide to make a representation against non payment of gratuity and cite the Madras High Court judgement. It is suggested that you fill "Form I" as per PoG act and send to your previous employer. If they refuse to pay or reject your claim within 15 days from day they receive the claim; you can file a formal complaint at the local labor inspector and take it up. The inspector will be the first government official to guide you on whether you claim is admissible under law or not.
As per my knowledge Gratuity act says 5 years of continuous service requires to claim Gratuity and also says 4.6 years of service also eligible. So I think you are eligible for claim. And Gratuity amount is insurance amount. Employer just needs to submit claim form. May be your employer didn't paid contribution amount to insurance company. Consult labour laws advocate for legal appeal.
Seniors let me know if I'm wrong
Though 5 years of service is mandatory as per law, but 4 years and 276 days are no less than 5 years to make you eligible in my view.
Mention Madras High court decision while filling the case with local labour office and let them use their discretion.
Now when govt was heard planning to reduce the eligibility to 3 years, I hope you will win as your demand is not unreasonable.
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