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  • Category: Indian Law

    Regarding my employee benefits


    Have a query about gratuity, employee benefits and rules regarding resignation? Searching for the correct norms for the above? Here, our epxerts have answered your questions.

    I have worked in a reputable private Institute in India for more than 9 years as a Lecturer. While in job, I got selected to a prestigious visiting fellowship program in UK. My Institute (India) approved my Long leave without pay for 1 year. My travel and fellowship was all taken care by the UK Institute and hence I did not take any financial help from my Institute in India. My fellowship in UK got extended and hence I applied for an extension of my leave with my Institute (India). However my leave application was denied and I had to resign from my lecturer position in India (to continue with my fellowship). My Institute is now asking me to pay nearly 4.5 lakh rupees (3 months salary + penalty for resigning) as I did not serve a 3 month notice period before resignation. I agree that I did not provide a 3 months notice as I hoped that my Institute will approve my leave. My queries are
    1. As I was not drawing any salary from my Institute in India, am I liable to pay 3 months salary. My Institute did not provide any financial assistance to me while I was in UK.
    2. How can I get my employee benefits? I have worked for more than 9 nine years and I think I am eligible for gratuity and Employee provident fund. Can anyone tell me what is the procedure to get them.
    3. My original certificates are with my Institute (10th, 12th, B.Sc, MSc and Ph.D). Until and unless I pay them 4.5 lakh rupees, my previous employers will not hand over the certificates to me. Is there any way I can get them back. I have no proof with me that says that my previous employer has kept the original certificates.
    4. Also how much will be my Gratuity amount with a basic pay of 90,000 rupees and 9 years of service as a lecturer to a well established Institute in India.
  • Answers

    5 Answers found.
  • 1. Your Institute in India sanctioned leave for one year. Is there any written proof for that.
    2. What are the terms and conditions mentioned in your appointment letter regarding terminating the job from either side?
    Based on the above we have to decide the correct way of handling the situation.

    You have to give 3 months notice if you are resigning on your own as per your appointment letter. If you are not giving three months notice, you have to pay three months basic pay only as compensation in place of the notice period. You mentioned that your basic is Rs.90.000/-. Three months amount will be 2.7 Lakhs only. How it is 4.5 Lakhs? The calculation is to be seen and you have to pay accordingly. Allowances should not be taken into account. You can't avoid paying this to get the relieving and experience letter from them,

    Other than gratuity is there any other amount which they have to pay you? The institute has to make a statement in which receivables and payables by you will be shown and they have to forward it to you. Once the calculation is accepted, you have to receive or pay the amount as per that statement.
    Gratuity will come to you separately. It will be somewhere around Rs, 4 .6 lakhs. They can't avoid paying this amount and if they are not paying you can legally fight and that will be a problem for them also.
    Regarding PF, you can apply online for withdrawal and there will not be any problem. Otherwise, you can allow it to be there in your account. Once you join in a new job after completing your assignment, again you will get a PF account. You can transfer this amount into the new account.
    We are not supposed to keep originals with the private employees. If they force us to deposit those documents, we should take an acknowledgement from them. Then only you can fight out with them. As far as my knowledge goes, there is no other way except paying the dues. You can send an email to them asking for returning of the originals. Their reply will be a proof for you that they have the originals with them.
    Generally, these institutes will have some political affiliations and if you know any politician who is close to the management, you can try through him and the management may write off the dues you have to pay. The government officials who are granting them the affiliation and rankings etc can also help you if you know anybody very senior in those departments.

    drrao
    always confident

  • You worked my institute ( India) as a lecturer for nearly 9 years and in the meantime you were selected for visiting fellowship programme in UK and later the programme was extended further beyond your sanctioned leave. Unfortunately my institute ( India) did not sanction the leave further so as to cover entire tenure of fellowship programme.
    You have certain queries and the same has been taken up for resolving your doubts-
    1) In relation to your proceeding to UK for study leave, you are not supposed to draw any salary during this period and the entire cost of maintenance is to be born by you during your study programme. To be better familiar with the terms and conditions of the company my institute ( India), you should go through the literature of the company.
    2) In no way, you will be deprived of your gratuity privilege and since you have worked for nine years as a lecturer and hence you are entitled to get 15 days gratuity for each completed year and for your service for 9 years, you are to get 4 months 15 days of your last basic as a part of your compensation to be paid in the form of gratuity and in your case, it will be Rs 90000*9/2 = Rs 405000 /-. While calculating gratuity, last basic during the service is taken into account. Your company cannot deny the gratuity amount payable to you. In case of not getting the said amount released from your employer, you may meet joint commissioner of labour of your area to get the issue addressed.
    3) Normally, in most of the companies, prior to joining any post, they take the attested/ photocopies of all the relevant certificates and the verification authorities would verify your original to see whether there is any anomaly. Once your certificates are verified, they would return these original documents to the candidates. But some employers are habituated to keep such certificates with them so that they cannot apply elsewhere in absence of certificates. Did they acknowledge in writing that your original certificates are under their possessions ? If your request to return the same to you is denied, you may go to some agencies from where they enjoy some grant or meet any influential MLA of your area to get this issue sorted out.
    4) Gratuity amount in your case, has been explained in query no 2.

  • The only question that actually needs explanation is about the amount of Gratuity you will be eligible for, but first let's clarify the other doubts.

    1. You went to UK after taking permission from your Indian institute for fellowship, so they granted the leave without pay. Logically you were on leave for the institute but still on their rolls. It means they did not terminate your serrvice and sanctioned your leave in anticipation that you will resume your service once back from UK. In the meantime your position remained vacant which maybe some other lecturer fulfilled temporarily.

    2. It does not matter whether you received salary from the institute or not, since you couldn't continue with your service hence you had to resign and also as per the terms of contract on which you were hired on the rolls of the University, you will have to pay the notice period recovery. This recovery is the compensation for the period which you had to serve till other lecturer could have been hired in your place but, that could not happen as you had not served any further even after your leave period ended.
    Only alternative to this problem is that you talk to the management directly, as they have the discretionary power to forego the notice period recovery. If they wish they can exempt you from payment of notice period recovery which you had already metioned to be around Rs. 4.5 lakhs.

    3. The University will not delibrately hold back your documents if all the legal/contractual formalities are fulfilled. Yes, they can deny returning your certificates if you do not pay the notice period recovery amount. I have already mentioned you that, if you talk directly to the Trustee(s)/Director(s) of the University then only you can get the exmeption as well as your original documents back.

    4. Yes, you are eligible for Gratuity as you have served over 5 years in the University. Gratuity is the gratutious payment for the long term of service rendered by an employee to the employer.

    The gratuity working presented here is approximate based on the limited details provided by you. The Payment of Gratuity Act, 1972 segregates Government employees and non-government employees. So taking your information that the University was a private one the calculation will be as under:

    a) Not-covered by the Act
    (15 day X last drawn basic salary X tenure of working) divided by 30

    = (15 x 90000 x 9 ) / 30 = Rs. 4,05,000
    You are eligible for Gratuity of Rs. 4.05 lakhs, assuming the completed year of service being 9 years.

    b) Covered by the Act

    = (15 day X last drawn basic salary X tenure of working) divided by 26
    = (15 x 90000 x 9) / 26 = Rs. 4,67,308

    In your case it will be option 1 i.e. Rs. 4.05 lakhs.

    It is for sure that you will get all your documents and gratuity only after you either payoff the notice period recovery amount or get it waived off, or else it will be deemed a breach of service contract and they(University) can legally hold your gratuity amount till you settle the same.

    Final call is yours.

    Live before you leave.

  • You were working in a private institution so the rules and regulations would be as per the terms of service there and not that of the Govt departments. So we have to find out exactly what are the general guidelines that the particular institute is following so that the quantum of the benefit could be calculated.

    As per the Payment of Gratuity Act,1972 and subsequent amendments, you are entitled for a gratuity from your institution if you have put a service more than 5 years there. There is no denying in that. For that one has to simply apply in the requisite performa and the institution would release it accordingly after deducting any dues to the institution. They can postpone the gratuity payment on the plea of some dues not cleared or some vigilance or administrative enquiry already going against the employee. In your case as the institution is private the gratuity would be calculated based on the 50% of the last drawn basic pay multiplied by the number of years of service rendered which comes to Rs 4.05 lakh.

    Now coming to the extension of the special leave without pay, please note that this sort of leave is not the right of the employee and even if he wishes to apply for it, he should have done it much before so that when he gets the denial in time from the institution, he can give a 3 months notice for resignation and can avoid the payment of 3 months salary. In this case you have simply assumed that management would extend your leave. In fact you should have tendered your resignation well before with a condition that in case the extension of leave is granted you would like to join back the institution after completion of the extension period. In such matters one has to plan well ahead and not submit an application for extension at the last moment as that appears a type of forcing on the management to extend it. No management would like such pressurising tactics. There are ample of qualified people available to them to replace you.

    While going through some case histories in the matter of gratuity disputes in private institutes, I found some data which might be interesting to be shared in this question answer thread. Many institutes take an undertaking from the employees at the time of joining that as the institution has no separate fund for the gratuity payment, it would be deemed made in the employee salary itself and no gratuity would be payable at the end. Please try to recollect if you have given any such undertaking long back while joining the institution. Many people just give whatever documents the institution asks at that time.

    Knowledge is power.

  • First of all you should see your appointment order for conditions and eligibility of availing such benefits.
    PROVIDENT FUND:
    As for as Provident Fund contributions, you see your payslip whether there is pf deduction in all months of your service. If your total pay less HRA payment is above 15000 per month there is a limitation of PF deduction to the extent on Rs.15000 at either 10 or 12 percent as applicable to your organization. In case you are getting PF deducted, you would have been given with a UAN number and account number. With UAN number you can get your passbook details in the website www. unifiedportal-mem.epfindia.gov.in. For this in that website you have to register yourself with password through your mobile number OTP. In case you withdraw your pf accumulations after leaving this job you can do by submitting online claim through login in the website. If you are under 40 years of age it is my suggestion to get the pf accumulations transferred to the company you are going to join later as it is the great savings to an employee.
    GRATUITY:
    You are eligible for gratuity once you have completed five whole years in service. The gratuity will be calculated as under:
    [Your last drawn salary (Basic+DA) x no. of years served x 15] divided by 26

    Here the number of years served should be calculated as full years (example: if one person completed seven years and seven months, his number of years served will be 8 and if one person completed seven years and four months, his number of years served will be 7 only). Further if a person completed four years and seven months, he is not eligible for Gratuity.
    NOTICE PERIOD:
    It should be referred through your appointment order. If your appointment order silent you should go through the rules and regulations laid by your organization which may be available on notice board or in HR / Personnel Department. However if the management asked you to pay notice pay or serve for notice pay, you have to oblige or on personal approach you may get waived or get reduced Notice pay or Notice Period,


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