Eligilibility for gratuity payment
Nirankar Gupta
(Querist) 21 March 2013
This query is : Resolved
Dear Sir.
My daughter Worked in a software company for 4 years and 7 months having a 5 day week.
On the basis of 5 day week of the company I feel my daughter is eligible for payment of Gratuity as she has put a continuous service of 4 yrs and 215 days (July 1,2008 to Jan 31,2013) Form I was served to the company but the company HR deptt while calculating no of working days (Including holidays of National leaves but excluding holidays of week ends)says that she is not eligible for gratuity payment as the no. of working days are less than 190 days in the 5th year
Kindly give ur valuable advice.
Nirankar Gupta Mob 9794800383
Adv k . mahesh
(Expert) 21 March 2013
continuous service means the employee who worked
1 year 240 days = completes one year
Gratuity Act
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 order, 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.
now calculate how many days she has worked and calculate
Sankaranarayanan
(Expert) 21 March 2013
yes if she fulfilled that commitment then she must have eligibility for the same
prabhakar singh
(Expert) 21 March 2013
By virtue of the judgment of Supreme Court rendered under the provisions of the Industrial Dispute Act in Surendra Kumar Verma vs. Central Govt. Industrial Tribunal,[(1980) (4) S.C.C.433)], it is enough that an employee has a service of 240 days in the preceding 12 months and it is not necessary that he should have completed one whole year’s service. As the definition of continuous service in Industrial Dispute Act and Payment of Gratuity Act are synonymous, the same principal can be adopted under the act also and hence an employee rendering service of 4 year 10 months 11 days is considered to have completed 5 years continuous service under sec.4(2) and thereby is eligible for gratuity."
An employee who has put in his service for a period of 240 days in fifth year will be deemed to have continued in the service for 1 year was laid in Mettus Beardsell Ltd., Madrs Vs. RLC(C) 1998 LLR 1072(Mad).
But in a law book Law Book (Bare Act,2004) i.e. The Payment of Gratuity Act,1972 (Publisher: Law Publishers () Pvt.Ltd. 18A-S.P.Marg,Post Box-1077,Allahabad-211 001. Phone:623735,623741 Fax-0532-622276.website: lawpublishersindia.com
They have illustrated the calculation as given bellow:
"1. 4 years and 6 months (190 days = 1 year) where the company follows 5 day a week.
2. 4 years and 8 months ( 240 days = 1 year) where the company follows 5 day a week.
Is eligible for gratuity.The payment of gratuity ( second amendment) act, 1984 clarifies this. One needs to calculate the no of years and service completion as follows.
A company which follows 5 day week
Doj 1.05.2000 -
01.05.2000 to 30.04.2001 - worked for 190 days
01.05.2001 to 30.04.2002 - worked for 190 days
If we go by the above formula and if the person does not have any break in service he will be eligible for gratuity on 01.11.2004 "
So there is a lot of confusion about it.
But in ultimate analysis only what has been held by Supreme court shall prevail in case any dispute emerges in courts for consideration.then it beneficial to wait for more 35 days.
On counting front their stand is wrong but on law front they seem to be laboring under mistake of law.
Raj Kumar Makkad
(Expert) 24 March 2013
Nothing to add more in the given replies.
Nirankar Gupta
(Querist) 25 March 2013
A lot of thanks ,Mr. Mahes, Mr.Makkad,Mr.sankarnarayanan and Mr.Prabhakar Singh
Dear Mr. Singh You have mentioned in ur reply to wait for more 35 days. I could not get it exactly .Wheather any judgement of any HC/SC is expected in these days or any amendment in law is expected.Kindly advice my daughter can represent to concerned ALC against the the company for calculating the the no.of days in the above manner.
Nirankar Gupta
