are you in government sector/dept. or private sector?

I am an IT Proffessional.

Kindly clarify that did you applied for LOP? ie., do you have any written approval that you are on leave in Loss of Pay.

And also your management has issued show cause notice for your long absenteeism. Kindly note that if you are on the authorized Maternity under as per law and If your under the authorized leave even you are under Loss of Pay and your management has not conducted any Domestic Enquiry, will not disturb your Gratuity at any cause as per the Payment of Gratuity Act. This is for your information please.

Hi Sir,

When I applied for my maternity leave, I requested to grant 6 months leave ie, as I mentioned before 3 months as per maternity policy and next 3 more months as LOP.

My manager approved that leave and I rejoined on the date as I promised.

So these are my service period details,

DOJ: 1st April 2008

Maternity leave : from 28th sep 2011 to 11th April 2012 (6months)

Last working day: 1st April 2013

 

When I requested for Gratuity, this is what I received from my HR person.

"As you know gratuity will be paid to employees who have completed 5 years of continuous service. Even though you have completed 5 years of service, the maternity break which you had taken from September 28, 2011, has exceeded the permitted limit of 3 months. The remaining leave was sanctioned to you without pay. Regret to inform you that, in that case, you will not be eligible for gratuity, as per the gratuity norms, as the leave days without pay would be excluded while calculating gratuity."

Kindly let me know whether I am eligible ?

Thanks,

Surya

 

 

 

 

You have posted that:

 

-----“ My manager approved that leave and I rejoined on the date as I promised.”

 

 You were on sanctioned leave. Hence there is no break in service.

Your service from DOJ to DOL is uninterrupted.

 

Payment of Gratuity Act, 1972

Section: 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.

 

Do you have the copy of the approval granted by your manager?

Employee should keep all record in personal file at home.

 

Employee should not limit himself/herself to HR/Line Managers/IR/Employee relations, beyond a point and should escalate to good offices of appointing authority, MD, Chairman, Company Secretary…….. ……..and wherever available to Employees Union/IC/Guild/Works Committee/Grievance Redessal Committee……..

Submit FormI under proper acknowledgment by redg. post to good offices of appointing authority, MD.

If good offices do not provide relief submit copy of FormI with POD of submission to company to Controlling Authority of Gratuity which may be DLC of your area.

 

You may refer to

Section: 2A
Continuous service.

2(a)

(i) If the company which works for less than six days in a week, 190 days=1year

 

(ii) In any other case, 240 days=1year

 

2(b) (i) (ii)

 

{ So if the employee has worked for say 190 days in a year it amounts to completion of 1 year for the purpose of calculation of Gratuity}

Section: 4
Payment of gratuity.

(b) on his retirement or resignation,

Section: 7
Determination of the amount of gratuity.

Section: 8
Recovery of gratuity.

 

And draw the attention of good offices and HR on word “WHOEVER” in Sec: 9

Section: 9
Penalties.

(1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.

(2) An employer who contravenes, or makes default in complying with, any of the provisions of this Act or any rule or order made there under shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year, or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both:

 

You may go thru Madras High Court Judgment in case of : Mettur Beardesll Ltd Vs Regional Labor Commissioner ( Central)

You may go thru a highly informative thread on similar query at:

https://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp#.UXrEe5indTs

 

There are many threads at LCI regarding Gratuity at:

https://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp#.UXrEe5indTs

 

 

You may also look into the provisions of Maternity Benefit Act…….

 

There are highly informative threads on it at LCI e.g.:

 

https://www.lawyersclubindia.com/forum/Resignation-after-maternity-leave-79271.asp

 

https://www.lawyersclubindia.com/forum/Maternity-act-74586.asp#.UXPE3qKAqWM

 

https://www.lawyersclubindia.com/forum/Forced-to-resign-when-enquired-about-maternity-leaves-75754.asp#.UXPC0qKAqWM

 

https://www.lawyersclubindia.com/forum/Maternity-leave-salary-76258.asp#.UXPDG6KAqWM

 

https://www.lawyersclubindia.com/forum/Meternity-leave-75127.asp#.UXPEpaKAqWM

 

 

Thereafter you can draft your representation to good offices.

 

Still if the company is adamant and do not yields It shall be appropriate to approach a competent and experienced labor consultant/service lawyer.