Facing Gratuity and Experience Certificate Issues After 11 Years of Service – What Should I Do Next?

Experience Certificate and Gratuity Issues

I joined an IT company in Bangalore and worked there for 8 years. The company then transferred me to another department (Online Production), which later became a separate company. Unfortunately, I have not received any experience certificate or gratuity payment from my first company. I worked in the online system for an additional 3 years.

Now, I have resigned from the job. However, the current HR says he can only provide a 3-year experience certificate and gratuity for me. For the remaining years, he will try to contact the head office company and possibly organize it, or ask me to speak directly to the first company (Head Office).

I have resigned with a buyout and am ready to pay one month's salary as well. The HR has provided a resignation letter for the last 3 years only, and no experience or resignation acceptance letter for the company I worked at for 8 years. He also mentioned that gratuity may be paid for 8 years based on my earlier company's basic salary and for 3 years based on my current basic salary. The amount will be adjusted as part of my buyout payment. So, even though I have worked for the last 11 years, I am not going to receive any gratuity payment. The buyout is acceptable to me, but he is unwilling to provide any calculation details.

What should I do next? Could you please guide me?

Thanks,

Senthil

If the company is adamant, then approach the labor commissioner of the area for redressal. It appears to be a clever way of avoiding gratuity payments.

You can lodge a complaint and also a petition before the Payment of Gratuity authority, who is normally the Local Deputy Commissioner of Labour.

From the facts given by you, it appears you have a good case to represent.

T. Sivasankaran

If your version is factually correct, you can file your claim for gratuity against both companies consequent to your recent resignation.

Agreement Between Companies

When the "Online Production Department" to which you were transferred became a separate company, as mentioned in your post, there should be an agreement between the earlier company and the new one, simply carved out of the "online department" of the previous one. This agreement should include provisions regarding the services of the existing employees working therein, including yourself. In the absence of such an agreement or clause regarding the services of the existing employees, as well as the issuance of fresh appointment orders by the newly formed company, the new company is liable for their service obligations as a successor-in-interest.

Gratuity Calculation

The continuous stretch of 11 years of your service under both companies entitles you to the computation of your gratuity based on the last-drawn salary only, not on a split-up basis as suggested by the HR personnel. If he denies liability for the earlier 8 years, it is questionable how he can approve gratuity for only the 3 years of service in the new establishment. This seems more like a deliberate attempt to delay and frustrate your rightful claim rather than a lack of legal knowledge.

The amount of gratuity payable under the Payment of Gratuity Act, 1972, cannot be part of any buy-out deal for the notice period.

Legal Advice

It would be advisable to seek advice from an experienced advocate and to issue simultaneous legal notices as well as notices for the claim of gratuity to both companies.

Regards

Dear sir,

Thank you so much for your valuable information. The company says they will discuss and confirm the payment balance details after 45 days, so another 15 days is available. As of now, I have only received the current company's relieving letter for the past 3 years. I am yet to receive the complete experience certificate. In the meantime, I have joined another IT company and am currently working.

I fear that this situation should not create any problems in my career.

Thanks,
R. Senthil

Dear sir,

My company still has not provided any commitment on Gravity Payments. Could you please clarify the following points for me:

1. If I go to consumer court, will my experience and service certificate be held by the company?
2. What will be the lawyer's fee approximately?

Thanks,
Senthil

Claiming Gratuity: Steps and Legal Considerations

Consumer Forum is not the appropriate forum to claim gratuity. You must first submit a claim to your employer using FORM I. If they fail to pay, then proceed with FORM N before the controlling authority appointed under the Payment of Gratuity Act. There is no connection between holding certificates and approaching any court. A company cannot legally retain any of your documents.

It is challenging to specify the fees, but it is a time-consuming procedure (approximately 2 years) with plenty of hearings, petitions, rejoinders, examination on affidavits, cross-examination, notes of arguments, etc.

Visit my blog at www.labourlawhub.com for more information.