I’ve been working for an organization since 1st Aug 2016 and now they are planning to move the process along with some employees to another organization. Because of this, I have been asked to resign from the current organization and accept the offer letter from the 2nd organization.
As I’ve already completed 4 years 5month and the termination is being initiated by the employer am I eligible to get Gratuity?
Is there a labor law that I can refer to?
Thanks in advance!
From India, Patna
As I’ve already completed 4 years 5month and the termination is being initiated by the employer am I eligible to get Gratuity?
Is there a labor law that I can refer to?
Thanks in advance!
From India, Patna
For proper reply, please clarify :-
1. How the move in process is being affected ?
2 What did the employer write when they asked you to resign ?
3. Any other communication between you and your employer
Prime facie, even if you are asked to resign, it should be considered as transfer with continuity of service and you would be eligible for gratuity from the new employer.
- S.K. Mittal
9319956443
From India, Faridabad
501. How the move in process is being affected ?
2 What did the employer write when they asked you to resign ?
3. Any other communication between you and your employer
Prime facie, even if you are asked to resign, it should be considered as transfer with continuity of service and you would be eligible for gratuity from the new employer.
- S.K. Mittal
9319956443
From India, Faridabad
Thanks Shobhit,
I would be doing the same work under new employer.
They have said I would be receiving a termination letter from current employer and will be offered an offer letter which will be effective from next day from new employer so there won’t be any gap on my service period.
There was no other communication apart from this.
They are not ready to pay gratuity neither they say that new employer will pay gratuity. They say this experience will not continue to be considered for gratuity.
Please advise. Thanks!
From India, Patna
I would be doing the same work under new employer.
They have said I would be receiving a termination letter from current employer and will be offered an offer letter which will be effective from next day from new employer so there won’t be any gap on my service period.
There was no other communication apart from this.
They are not ready to pay gratuity neither they say that new employer will pay gratuity. They say this experience will not continue to be considered for gratuity.
Please advise. Thanks!
From India, Patna
Dear Amar,
The entire information furnished by you regarding the proposed move of transfer of a particular process/operation with the existing employees in the organization after their resignation with the assurance of fresh appointment in the other organization should most probably by word of mouth and not by any written communication. If so, certainly, this is a sinister motive of your present organization to circumvent the provisions of section 25-FF of the Industrial Disputes Act,1947 pertaining to compensation to workmen in case of transfer of undertakings.
The resignation from the present organization and fresh appointment in the other one as well, if any, based on the strength of such oral assurance would nullify the resignees' claim for continuity of the service before such resignation and any service benefit like gratuity accruing on the basis of a minimum qualifying period of service.
Therefore, do not accept the proposal and resign your job. Unless you are formally transferred to the other organization with continuity of service with the latter's acceptance, your service in the transferred organization would be a fresh one only. When your service falls short of 4 years and 240 days in the fifth year on the very date of your resignation, you are not eligible to claim statutory gratuity from either of the organizations. It is better that all such employees jointly make a complaint to the local Deputy Labor Commissioner.
From India, Salem
The entire information furnished by you regarding the proposed move of transfer of a particular process/operation with the existing employees in the organization after their resignation with the assurance of fresh appointment in the other organization should most probably by word of mouth and not by any written communication. If so, certainly, this is a sinister motive of your present organization to circumvent the provisions of section 25-FF of the Industrial Disputes Act,1947 pertaining to compensation to workmen in case of transfer of undertakings.
The resignation from the present organization and fresh appointment in the other one as well, if any, based on the strength of such oral assurance would nullify the resignees' claim for continuity of the service before such resignation and any service benefit like gratuity accruing on the basis of a minimum qualifying period of service.
Therefore, do not accept the proposal and resign your job. Unless you are formally transferred to the other organization with continuity of service with the latter's acceptance, your service in the transferred organization would be a fresh one only. When your service falls short of 4 years and 240 days in the fifth year on the very date of your resignation, you are not eligible to claim statutory gratuity from either of the organizations. It is better that all such employees jointly make a complaint to the local Deputy Labor Commissioner.
From India, Salem
So, that means there is no continuity in service and for all intents and purposes your employment with the new organisation starts only from now. Are they allowing transfer of leave/protection of pay and other perks?. You need to insist on transfer of Gratuity, it would be possible if there is a gratuity trust at both the places.
From India, Mumbai
From India, Mumbai
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Payment of Gratuity Act, 1972 & The Rules.ppt
THE PAYMENT OF GRATUITY ACT 1972.doc