Am I eligible for gratuity
Ritesh
(Querist) 21 December 2010
This query is : Resolved
Hi.
I worked in an organization from 25 July 2005 to 14 May 2010. Am I eligible for gratuity.
According to Madras High Court Judgement, If a person works for organization for 4 years and 240 days, he is eligible for gratuity.
Currently, I am with another organization.
Kirti Kar Tripathi
(Expert) 21 December 2010
There is conflicting position of law in this regard. I my opinion the minimum period of 5 years for eligibility of gratuity is provided in the statue can not be reduced as it is within the reasonable restriction. However, the period of fraction of the year in calculating gratuity itself provided in the Act.
Advocate. Arunagiri
(Expert) 22 December 2010
Minimum five years is the eligibility. Fraction of the year is meant for over and above five years.
Ritesh
(Querist) 22 December 2010
Sir,
I am pasting madras high court decision
MetturBeardseU Ltd. (represented by Its
Personnel Manager), Madras
vs.
Regional Labour Commissioner (Central)
(Authority under Payment of Gratuity Act).
Madras & Others
A. PAYMENT OF GRATUITY ACT~ 1972-
-
Sections 2(a), 2(b), 2(c), 2(e) and 2A - 'Continuous serVice' Qualifying perio d of service by an employee titlement of Gratuity - An employeerendering continuous service for a period of 240 days in a year will be deemed to have continued in service for 'one year as stipulated by section 2A of the Act Thus an employee who has Put in service for 10 months and 18 days for the fifth year subsequent to first 4 years should be deemed to have completed continuous service of five years His claim for gratuity is tenable.
Para 5
.
Still you think I am not eligible for gratuity?
Ritesh
(Querist) 22 December 2010
I am attaching madras high court decision copy.
Kirti Kar Tripathi
(Expert) 22 December 2010
The Section 2A of the PGA is as follows
2A. Continuous service.- For the purposes of this Act,--
(1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act;
(2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer--
(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--
(i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) two hundred and forty days, in any other case;
(b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than--
(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) one hundred and twenty days, in any other case;
Explanation.--For the purposes of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which--
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing
Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes
Act, 1947 or (14 of 1947), under any other law applicable to the establishment;
(ii) he has been on leave with full wages, earned in the previous year;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment;
and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.]
(3) where an employee, employed in a seasonal establishment, is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy-five per cent. of the number of days on which the establishment was in operation during such period.]
from the above provision it is clear that there are two condition for for consideration of continuous service i. the employment of an employee for 12 calendar months and ii. in that 12 calendar months he must have rendered 240 days service.
Thus employment of an employee for 5 years necessary for eligibility of gratuity, However it is not necessary that in his 5 th year, he must be employed whole of the years, in that year he must have completed 240 days service.
Ritesh
(Querist) 23 December 2010
Hi Kirthi kar Tripathi, Praveen Kumar Tewari,
Does this mean I am eligible for gratuity as I have completed 4 years 9 months 20 days in my last organization?
Ajay Bansal
(Expert) 23 December 2010
SEE MADRAS LAW JOURNAL.
Kirti Kar Tripathi
(Expert) 23 December 2010
as i have already stated, the position in this regard is unambiguous. however, you may go for claim. I wish for your success.
