even you can see in this thread the same query was discussed 

https://www.lawyersclubindia.com/forum/Gratuity-81813.asp#.UayEstKnxpw

Dear Sir,

I m working with this company since 7th July 2008 and i got an offer from another company 

please guide me when i can resign so that i will be elegible for gratuity as i have to resign 

I am completing my 5 years on 7th July 2013.

@Lalit,

Always start a new thread.

You may refer to:

-Section: 1: Short title, extent, application and commencement.

(3) It shall apply to­ -

(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;

{ If your establishment employed 10 or more persons at any point of time the Act shall be applicable to it}

- Sec2A and if you have completed 5 years of uninterrupted service, you are eligible for the payment of Gratuity.

-As described above: If you have submitted notice of resignation, thus you have notified your dtae of retirement to your employer.

Employee can submit FormI, for payment of Gratuity one month before date of retirement, i.e.

7^th June 2013.

You may submit FormI under proper acknowledgment preferably by redg. post.

 Although FormI is attached, you may obtain the latest/applicable version from concerned HR personnel, Controlling Authority of Gratuity which may be DLC in local o/o Labor commissioner, or buy from market

Sir

Below is the reply i got from my HR , i was with a company which was working 5 day a week  , only the last saturday of the month was working. The below reply states the eligibility as 4 yrs & 240 days. with the last saturday of the month as working will it come under the 6 day a week preiew or will it be still under 5 day a week . can u please advice.

Section: 4
Payment of gratuity.

(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -

(a) on his superannuation, or

(b) on his retirement or resignation, or

(c) on his death or disablement due to accident or disease:

Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement:

Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.]

An employee who completes 4.6 years of service can be considered for gratuity payment provided he/she works for 4 years and 240 days. 

Your date of joining is 14^th July 2008 and date of leaving is 8^th Feb 2013.

The Calculation is as below:

From 14^th July 2008 to 13^th July 2012 – Completed 4 years

Month                            No. of days worked

July 2012          -           17

August 2012       -           30

Sept 2012          -           30

Oct 2012           -           30

Nov 2012           -           30

Dec 2012           -           30

Jan 2013           -           30

Feb 2013           -           8

Total Number of days worked:    4 years and 205 days.

@ Kumar Doab

Dear Sir,

Thanks a lot 

I just wanted to know whether i can submitt my resign right now or should i wait for 7th july 2013 as my doj is 07 july 2008

as one of our official was saying that you will be losing your gratity if i will drop the papers on 7th June 2013

Request yout o kindly guide.

hello bhupender g as per mine opinion first to tell me that on which post he was posted or what was your designaton in the company.

it is very clear that if you may come under the definition of employee or whork men then you can claim the gratuity as per rule and as per your working period you come in the period of gratuity and you can claim it before the appropriate authority but first of all you make of notice to your company in respect of the gratuity and any other dues which are applicable in your working period for the kind notice of your company. If the company denies your claim or not given any answer, reply of the same then you can go before the appropriate authority to claim your dues.

Thanks

@ Lalit,

An employee should always try to separate by tendering notice of resignation and during period of notice: complete all tasks on hand, complete exit formalities, handover of charge/company property and obtain acknowledgment for everything.

Period of notice is counted in period of service.

Therefore if you tender notice of resignation (under proper acknowledgment) write period of notice, effective date of resignation/last day in office in it, and mention that you shall be service the period of notice.

If your last day in office is 7^th July 2013, you would be completing 5Y in service and there is no confusion on completion of 5Y. In this case you can submit FormI a month before i.e. 7^th June 2013 of your last day in office/or date of retirement: 7^th July 2013.

If you leave before this date you should be eligible and you may refer to Sec2A of the Act.

The issue has been discussed in many threads on Gratuity available at:

https://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.Ua3al9KAqWM

You may go thru a highly informative thread and can download court judgments pertaining to your issue:

https://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp#.Ua3ZvtKAqWM

The Payment of Gratuity Act is applicable to all employees in the company irrespective of being a workman or non workman and there is no wage ceiling for being eligible.

@ Shibu,

-If the period shown in July12, Feb13 is treated as leave by the company it should be counted in the service period. From the language of your post it is assumed that the period is not counted as break in service.

Section: 2A
Continuous service.

(2) (a) (i) (ii):

     (b) (i) (ii) 

Explanation: For the purpose 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 (14 of 1947), or under any other law applicab1c 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.

The act is clear.

Therefore days of paid leaves, holidays, legal strike days, leave due to employment injuries, lay off days, maternity leave ( in case of women employees)……………………will be counted in days worked.

Thus 240 days should include all paid holidays and leaves.

The notice period service is also counted in service.

The uninterrupted service for a period of 240 days in a period of 12 months is generally reckoned counting backwards 240 days just preceding the relevant date being the date of death or date of retirement……………………………………….

-Number of paid days in a week, which in case of monthly rated employee are 7 (although the company works on 5 days/week).

-You are expecting a dispute.

You may seek a legal opinion from a lawyer specializing in such matters, and proceed under expert legal advice of your lawyer.