How do I claim gratuity from an ex-employer?

The company did not make any provision in its accounts for gratuity, where again both the company and the auditor who certified the accounts committed a mistake. However, the company paid gratuity dues to some other associates during the same period around October 2015 to 2016 by making payments under head other than gratuity. Amount towards gratuity contribution from salary, making it a part of CTC for existing employees.

I do not have the record of total number of employees in the organization to prove that the company is liable to pay gratuity, but considering the above, I infer that the company is liable to pay gratuity. I have not taken any legal action against the company nor have I complained to any regulatory authority so far.

Recently I have got experience certificate from the company. I want to know whether there is any fixed time limit to clear these dues or I still have legal right to receive my gratuity. Is there any forum where I can complain about this and is there any cost involved?

Can you please tell me the steps that I can take to recover my gratuity from the company?

Name withheld on request

The employee can file a claim before the ‘Controlling Authority’ of the jurisdiction within a period of 90 days from the date of termination of employment. The term ‘Controlling Authority’ under the Gratuity Act has been defined under section 3 as the authority appointed by the appropriate Government. They are generally officers of the rank of Assistant Labor Commissioner who are appointed in each 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 examining the witnesses, evidence, documents etc., the Controlling Authority shall share its findings with the parties. If the finding is in favor of the employee, the Controlling Authority shall 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 instructions for payment of gratuity, the employee can apply for its recovery.

The Controlling Authority is responsible for the administration of the Act and a claim for gratuity can be filed before it. There is no fee prescribed under the Act for filing such a claim; However, there may be a litigation cost involved.

Litigation against the ex-employer may not be adversely affected if a genuine claim/case has been filed by the employee to enforce his legal right and the same has been disclosed to the prospective employer.

Suyash Srivastava is a partner at DSK Legal.