Gratuity related issues
Sujit
(Querist) 14 December 2017
This query is : Resolved
Dear Sir/Madam
I,Sujit Kumar Dash, request you to guide me on the procedure/eligibility for claiming Gratuity under Gratuity Act with my following employment details:
1. Joined, M/S. Geoffpalm Limited, incorporated in Malaysia and posted in Sierra Leone ( West Africa ) on 1st March 2013 to 31st December 2015.
2. The above company, M/S. Geoffpalm, is a group company of Siva Group, Chennai.
3. Transferred to Indian operations wef from 1st January 2016 and employed under M/S. Siva Business Management Services Private Limited at its offices in Chennai and mumbai till date.
As seen above i have completed 4 years and 9 months in the group entities,Can you please let me know whether I am eligible for Gratuity as i have completed 4 years and 9 months under Siva Group as a whole.
Also requesting you to please let me know if my company can voluntarily consider my earlier employment period into consideration and pay Gratuity accordingly.
Thanks and Regards
Sujit Kumar Dash
+917338804560
Adv Shailendra Deshpande
(Expert) 14 December 2017
It seems you have worked with 2 different companies even though under same management. As per Gratuity Act you have to worked under same employment to receive the gratuity for continuous period as stated in the Act. Please check whether you have 2 different appointment letters and whether company is maintaining gratuity fund same for both companies under one policy. In case of transfer to original company, the overseas period could be considered, but in your case it is not. The competent authority may then decide your initial employment period (Africa) also for gratuity for which I am doubtful.
Shailendra Deshpande
Sujit
(Querist) 15 December 2017
Thank you Mr. Shailendra
As you might be aware that if employment of more than 4 years and 8 months, Company should pay gratuity and its mandatory in nature.
My current doubt is if my company can voluntarily pay the same or not, considering my employment in Africa. If my company can pay voluntarily they will pay but they want some legal provisions towards the same.
Also let me know who is the competent authority for the same and if there is any contacts to be contacted please let me know
Regards
Sujit
Kumar Doab
(Expert) 15 December 2017
The Payment of Gratuity can be claimed in accordance with contract of employment/agreement that was signed with you and enactments that apply in such case.
The Payment of Gratuity Act,1972 is Indian enactment and may apply in your case if establishment in India had employed you.
The enactment is silent on location/workstation/HQ town of employee assigned by employer.
The transfer/deputation are part of service conditions and if establishment in India placed/ transferred/deputed you abroad then as per T&C of the service conditions/social security benefits provided to you, the establishment may agree to pay you the Gratuity.
You are right upto the extent that establishment can offer better terms of Gratuity and nothing in the section affects the rights of employee to get better terms of Gratuity..
Kumar Doab
(Expert) 15 December 2017
You may go thru; Payment of Gratuity Act,1972;4(5)
http://www.labour.nic.in/sites/default/files/ThePaymentofGratuityAct1972.pdf
Kumar Doab
(Expert) 15 December 2017
Same Query;
http://www.lawyersclubindia.com/forum/details.asp?mod_id=157483&offset=1
Sankaranarayanan
(Expert) 05 January 2018
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 10months 11days is considered to have completed 5 years continuous service under sec.4(2) and thereby is eligible for gratuity.
4 years and 6 months (190 days = 1 year) where the company follows 5 day a week
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 = 1 year
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
The gratuity will be paid based on date of joining and completion of years of service. It is not based on 4 yrs and 216 days. If the person crosses 5 years of service within that 216 days, then he need to be paid, i.e, based on the date of joining of an employee, the day when he completes 5 years of service, he will be eligible to get the gratuity. But whereas the calculation will be rounded off to the next higher or lower fraction after his 5 yrs completion. So no one will be eligible to get gratuity if he is not completed 5 years of service.
