Gratuity
Pratish
(Querist) 01 July 2014
This query is : Resolved
I joined KPO Company on 3-8-2009, I will relived from company on 3-8-2014 i.e. I need to complete 45 days of notice period. Then I had successfully completed 5 years and 1day of service in single organisation. Now my question is 5 years of service, includes 120 days of Loss of pay (informed and uninformed days), kindly explain whether I am eligible for gratuity or not as per Gratuity Act 1972. Kindly send my legal documents or link.
Note: i have worked for 278 days in forth year i.e. 4-5. "Whether i can file FORM F", what does FORM F means?
I need clarification on which basic gratuity is calculated in our company. As per 1972 gratuity act
1. On the completion of 5 years of service (with out loss of pay i.e. informed and uninformed in the service)
2. On the completion of 5 years of service (with loss of pay i.e. informed and uninformed in the service)
3. On the completion of 5 years of service including notice period (with or without loss of pay i.e. informed and uninformed in the service)
ROHIT SHARMA
(Expert) 02 July 2014
Dear Mr. Pratish,
1. The extracts provisions of Gratuity Act, 1972 especially defining the meaning of continuous service are appended herewith.
Quote " 2*["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 in
interrupted on account of sickness, accident, leave, absence from duty without leave(not being absence in respect of which an order 3*** 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;
Note - 3*[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.] - unquote.
2. Other important extract :
Applicability
Every factory (as defined in Factories Act), mine, oilfield, plantation, port and railway.
Every shop or establishment to which Shops & Establishment Act of a State applies in which 10 or more persons are employed at any time during the year end.
Any establishment employing 10 or more persons as may be notified by the Central Government.
Once Act applies, it continues to apply even if employment strength falls below 10.
Eligibility
Any person employed on wages/salary.
At the time of retirement or resignation or on superannuation, an employee should have rendered continuous service of not less than five years.
In case of death or disablement, the gratuity is payable, even if he has not completed 5 years of service.
Benefits
The quantum of gratuity is to be computed at the rate of 15 days wages (7 days wages in case of seasonal establishments) based on rate of wages last drawn by the employee concerned for every completed year of service or a part thereof exceeding 6 months.
The total amount of gratuity payable shall not exceed the prescribed limit.
In case where higher benefit of gratuity is available under any gratuity scheme of the Co., the employee will be entitled to higher benefit
3. Even if you have been on loss of pay for 120 days you are deemed to be in continuous service can therefore fill form F which is form that will be provided by your employers. I still am not sure what this form F means. You can ascertain its purpose from your employers.
4. I need be contact this lawyer for further private legal consultation.
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) : 0-9824047971.
E-Mail : lawgate1349@gmail.com
Dr J C Vashista
(Expert) 03 July 2014
Well explained, I appreciate and agree with expert Mr. Rohit Sharma.
T. Kalaiselvan, Advocate
(Expert) 03 July 2014
I too agree with the opinions and suggestions made by advocate Mr. Rohit Sharma on the subject issue, nothing more to add.
