Can I Still Claim My Gratuity After Leaving My Job Six Months Ago? Seeking Advice!

Hello, I worked in a company from November 2007 to June 2019. I have to admit, due to my lack of knowledge about applying for gratuity, I didn't ask my HR about it, and the company didn't pay me any gratuity. A friend mentioned that I am eligible to claim gratuity because I completed more than 5 years. My query is, as I left the company in June 2019 and it is now December 2019, do you think I can still apply for my gratuity? I read in a few articles that I need to apply within 30 days of my resignation. Please help me.

First of all, please ensure that your company falls under the purview of the Gratuity Act. The Payment of Gratuity Act, 1972 (the Gratuity Act) is applicable to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops, or other establishments with ten or more employees.

If so, then you can apply for gratuity even if it is after 5 months of leaving the services of the company. The rules suggest that once an employee becomes eligible to receive gratuity, they can apply within 30 days from the date it becomes payable. However, an employer cannot reject an application by the employee after the expiry of 30 days if the delay happened due to a valid reason. So please provide a valid explanation and apply for gratuity. In case your employer rejects the request for a gratuity application or delays it, you can file a case before the Assistant Commissioner of Labour of your company's jurisdiction, who is the controlling authority as per the Gratuity Act.

Steps to Claim Gratuity

Don't worry. It is better to send a notice to the employer now, requesting payment of the gratuity amount and providing reasons for the delayed claim. You must remember that the law mandates the employer to pay gratuity within 30 days of it becoming payable. Therefore, your failure to make the claim within the time limit is connected to the employer's failure to make timely payment. As a result, your claim cannot be rejected by the employer solely based on the delay.

What to Do If the Claim Is Rejected

However, it is crucial that if the claim is rejected, or if the proposed gratuity amount is less, or if no reply is received within 90 days from the date of service of your claim notice, you must file an application for gratuity along with interest for the default period against the employer before the Controlling Authority under the Payment of Gratuity Act, 1972, for the area where the establishment is located.

Thanks for your valuable suggestions. I reached out to my company's HR. He said they cannot pay Gratuity because the company didn't enroll in Gratuity as they did in PF. But the company I worked for is a Pvt Ltd and at any given time they have more than 25 employees on payroll. Also, I have PF deductions for my entire service (12 years). I also applied for PF online and it's in process. Can you please suggest whether what my HR said is right or can I still send them Form 1?

Dear Aark,

We have clearly explained the legal position and suggested to you the immediate action you have to take. However, you are still harping on about your eligibility and trying to rely on the legal knowledge of your HR. Whatever we suggest, if you contact your HR, he will find a new reason, creating fresh doubts in your mind. It is better to try to decide on your own.

Dear Sir,

I have worked for a company for 4 years, 8 months, and 17 days (i.e., 4 years and 261 days). As per the act, one is eligible for 4 years and 240 days for gratuity payment. When I inquired with my HR, they said that since the company has a gratuity trust, the gratuity payable in my case depends on the gratuity trust law, and it is at the discretion of management to decide whether to pay or not.

Could you please kindly help me understand if there is a specific law for gratuity trust and whether I will receive my gratuity?

Regards,
Satya

I think a lot of replies are there in the Cite HR on this question based on the Madras High Court's judgment in Mettur Beardsel Ltd case. Certainly, you are entitled to gratuity since you have worked for more than 240 days in the fifth year as per the above judgment. A gratuity trust's rule cannot override the ratio decidendi of a High Court judgment. Please refer to the previous replies.

My HR or CEO is not accepting to pay me Gratuity. I would like to send a notice to them. Can anyone help me with a legal advisor contact who can help me in resolving this issue?

First of all, please ensure that you are eligible for Gratuity as per the Gratuity Act. To start with, no legal advisor is required. Please write a request letter for Gratuity addressed to your CEO/HR. Send the letter through Registered Post with Acknowledgement Due. Wait for some time after the receipt of the RPAD receipt. In case of no response, you can directly approach the Assistant Commissioner of Labour Office (pertaining to your employer's jurisdiction) and file a complaint directly. If needed, appoint an advocate, as you will be expected to pay his fees. It is a simple process. Once a notice is served by the ACL, your employer cannot postpone for a long time and can only ask for some time to pay the Gratuity.

Hello Friends,

Yes, it would be counted. When your exit process is completed and a relieving letter/work experience letter is created, it mentions the tenure, including your notice period. The company then sends the EPS, EPF, and gratuity details for processing to the state pension office.

Thanks,
Ritu Kaushik

Dear Sir,

My HR says that there is a different legal stance for paying gratuity even though I have completed 4 years and 261 days. The Madras High Court judgment will not suffice for paying gratuity, it seems. Sir, kindly please help me in this.