I worked with a midsize private company from April 2010 to October 2015. I was eligible for gratuity since I had worked there for around five-and-a-half years. However, despite multiple requests to the company, it is yet to clear my gratuity. Even personal messages to the firm’s promoters were of no avail.
The company did not make any provision in its accounts for gratuity, where again both the company and the auditor which certified the accounts seem to have erred. The company, however settled gratuity dues to a couple of other colleagues by making payment under a head other than gratuity during the same period from October 2015 to around 2016. After the company realized that it is liable to make gratuity payments, it started deducting an amount from the salary towards gratuity contribution, making it a part of the CTC for existing employees.
I do not have a record of the total number of employees in the organization to prove that the company is liable to make gratuity payments, but considering the above, I infer that the company is liable to make gratuity payments. I have not taken any legal action against the company nor have I complained so far to any regulatory authority.
Recently I have obtained an experience certificate from the company. I want to know if there is a certain timeframe for these dues to be cleared or I still have the legal right to receive my gratuity. Is there any forum where I can complain regarding the same and is there any cost involved?
Can you please guide me on the steps that I can take to recover my gratuity from the company?
—Name withheld on request
The employee may file a claim before the jurisdictional ‘controlling authority’ within a period of 90 days from the date of severance of employment. The term ‘controlling authority’ is defined under the gratuity law to mean an authority appointed by the appropriate government under section 3. They are generally assistant labour commissioner ranked officials who are appointed in every district. Any delay in filing the claim may be condoned if sufficient cause is shown by the employee. After hearing the parties as well as upon examination of witness, evidence, documents etc., the controlling authority will share its finding with the parties. If the finding is in favour of the employee, the controlling authority will issue a notice to the employer directing it to pay the specified gratuity amount within a period of 30 days from the date of its receipt.
In case of non-compliance of direction to pay gratuity, the employee may file an application for its recovery.
The controlling authority is responsible for the administration of the act and a claim for gratuity may be filed before it. No fee is prescribed under the act for filing of such claim; however, it may entail a litigation cost.
Litigating against ex-employer necessarily may not have an adverse impact if a genuine claim / case has been filed by the employee for enforcing his / her legal right and a disclosure to that effect has been made to the prospective employer.
Suyash Srivastava is partner at DSK Legal