Dear Sir,
I worked in a school for 8 years and resigned in 2013. I was neither aware of the statutory gratuity nor did the employer ever mention it to us, either orally or in writing. Therefore, I could not claim it. Now that I have learned about the gratuity benefits, the employer is refusing to pay, stating that it is time-barred as I did not apply within a month after leaving. I have emailed them regarding this matter, explaining that I was unaware of the gratuity since they never informed us, and they should have prompted me to apply for it upon my departure. I have requested them to pay me with simple interest for the delayed time. However, they have not responded to this.
Please guide me on how to proceed.
Thank you
From India, Bhilai
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I worked in a school for 8 years and resigned in 2013. I was neither aware of the statutory gratuity nor did the employer ever mention it to us, either orally or in writing. Therefore, I could not claim it. Now that I have learned about the gratuity benefits, the employer is refusing to pay, stating that it is time-barred as I did not apply within a month after leaving. I have emailed them regarding this matter, explaining that I was unaware of the gratuity since they never informed us, and they should have prompted me to apply for it upon my departure. I have requested them to pay me with simple interest for the delayed time. However, they have not responded to this.
Please guide me on how to proceed.
Thank you
From India, Bhilai
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You may send a duly filled-in Form I (attached). If the organization is covered by the Payment of Gratuity Act, it is the responsibility of the employer to pay gratuity within 30 days of an employee's exit from the company. If the employer is not paying it, you can approach the Controlling Authority. Delay was caused by the employer, and hence the question of it becoming time-barred will not arise. Rule 7(5) of the Payment of Gratuity Central Rules states:
An application for payment of gratuity filed after the expiry of the periods specified in this rule shall also be entertained by the employer if the applicant adduces sufficient cause for the delay in preferring his claim, and no claim for gratuity under the Act shall be invalid merely because the claimant failed to present his application within the specified period.
In your case, it was the duty of the employer to pay the gratuity, and the failure was on his side. Therefore, if he claims that it is time-barred, you can approach the Controlling Authority.
From India, Kannur
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4758An application for payment of gratuity filed after the expiry of the periods specified in this rule shall also be entertained by the employer if the applicant adduces sufficient cause for the delay in preferring his claim, and no claim for gratuity under the Act shall be invalid merely because the claimant failed to present his application within the specified period.
In your case, it was the duty of the employer to pay the gratuity, and the failure was on his side. Therefore, if he claims that it is time-barred, you can approach the Controlling Authority.
From India, Kannur
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As per the provisions of the Gratuity Act, irrespective of whether the employee has submitted a claim, the employer has to work out his/her Gratuity due and settle it within 30 days from the date it fell due. If the employer does not pay Gratuity within the prescribed time limit, it has to be paid along with simple interest.
Regards,
MVK
From India, Madras
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Regards,
MVK
From India, Madras
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Please see the relevant extracts from the Act - THE PAYMENT OF GRATUITY ACT, 1972.
1. Short title, extent, application, and commencement:
(1) This Act may be called the Payment of Gratuity Act, 1972.
(2) It extends to the whole of India: Provided that insofar as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.
(3) It shall apply to:
(a) every factory, mine, oilfield, plantation, port, and railway company;
(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;
(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.
1[(3-A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act, notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten.]
2[(e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop, or another establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for the payment of gratuity;]
3[***]
(f) "Employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company, or shop:
(i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned,
(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive officer of the local authority.
(iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company, or shop, and where the said affairs are entrusted to any other person, whether called a manager, or managing director or by any other name, such person;
4. Payment of Gratuity: (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,
(a) on his superannuation, or
(b) on his retirement or resignation,
(c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement:
7. Determination of the amount of Gratuity:
(1) A person who is eligible for the payment of gratuity under this Act or any person authorized, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.
(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in subsection (i) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.
1[(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.
(3-A) If the amount of gratuity payable under subsection (3) is not paid by the employer within the period specified in subsection (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for the repayment of long-term deposits, as that Government may, by notification, specify: Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the Controlling Authority for the delayed payment on this ground].
Going by the above provisions of the act, it's the responsibility of the employer primarily to compute the gratuity payable and send a notice to the leaving employee about the payment to be made. Therefore, you have to file the claim and to the Competent Controlling Authority in the form attached by Mr. Madhu.
From India, Bangalore
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1. Short title, extent, application, and commencement:
(1) This Act may be called the Payment of Gratuity Act, 1972.
(2) It extends to the whole of India: Provided that insofar as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.
(3) It shall apply to:
(a) every factory, mine, oilfield, plantation, port, and railway company;
(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;
(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.
1[(3-A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act, notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten.]
2[(e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop, or another establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for the payment of gratuity;]
3[***]
(f) "Employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company, or shop:
(i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned,
(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive officer of the local authority.
(iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company, or shop, and where the said affairs are entrusted to any other person, whether called a manager, or managing director or by any other name, such person;
4. Payment of Gratuity: (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,
(a) on his superannuation, or
(b) on his retirement or resignation,
(c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement:
7. Determination of the amount of Gratuity:
(1) A person who is eligible for the payment of gratuity under this Act or any person authorized, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.
(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in subsection (i) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.
1[(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.
(3-A) If the amount of gratuity payable under subsection (3) is not paid by the employer within the period specified in subsection (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for the repayment of long-term deposits, as that Government may, by notification, specify: Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the Controlling Authority for the delayed payment on this ground].
Going by the above provisions of the act, it's the responsibility of the employer primarily to compute the gratuity payable and send a notice to the leaving employee about the payment to be made. Therefore, you have to file the claim and to the Competent Controlling Authority in the form attached by Mr. Madhu.
From India, Bangalore
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