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.
From India, Delhi
225First 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.
From India, Delhi
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.
From India, Mumbai
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.
From India, Kolkata
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.
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
From India, Mumbai
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
From India, Mumbai
Dear Friend,
What had to happen has happened. Now the question is, whether you are eligible to get Gratuity or not. As per one need to complete 5 years tenure of contineous service. You are squarely eligible, if you have completed 5 years of contineous service till your resignation.
Wait till all your backlog amount being paid and service letter received at your end. Then you can try your case for claim of Gratuity by knocking the door of court. Keep patience.
From India, Mumbai
What had to happen has happened. Now the question is, whether you are eligible to get Gratuity or not. As per one need to complete 5 years tenure of contineous service. You are squarely eligible, if you have completed 5 years of contineous service till your resignation.
Wait till all your backlog amount being paid and service letter received at your end. Then you can try your case for claim of Gratuity by knocking the door of court. Keep patience.
From India, Mumbai
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