• Gratuity eligibility

Hello
I joined my present organisation on September 17, 2012. In between I had to take extra leaves (over and above casual leaves allowed) due to medical reasons and also took 3 months leave during my wedding. Even those 3 months were considered as leave. So overall I have around 4 months of loss of pay. I would be completing 4 years 190 days in March 2017. I believe there is no break in my service and employer employee relationship persisted over entire 4 years 190 days. Loss of pay should not impact my gratuity eligibility which is in March. However, my HR is saying LOP days will not be counted for the purpose of gratuity. Request your esteemed views on the same and remedy available to me.
Asked 7 years ago in Labour

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5 Answers

Dear Sir,

In your Position ...feel free to move in C.A.T....and file your matter ...the eligilibilty criteria ...willlll be decided by the court of law...

Regards

Mob-No-[deleted]

Feroz Shaikh
Advocate, Navi Mumbai
407 Answers
58 Consultations

4.4 on 5.0

1) under the provisions of Payment of Gratuity Act, continous service includes all kinds of leave unless by an express order there is break in service.

2) The requirement of 240 days service is needed for continuous service on any year. Unless the individual has actually worked in the company for 240 days in a year he is not entitled for gratuity.

3) Leave Without Pay, being sanctioned leave will be treated as part of 240 days for calculating eligibility for Gratuity.

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

The gratuity is paid for 15 days salary for each completed year.

So since you have completed more than 4 years six months you will be eligible for 5 years of gratuity.

And the formula is one day salary x 15 days x 5 .

In this calculation LOP is no where in the picture.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

The provision of law governing your query is given below:

Following is the complete draft of the Section 2A of Gratuity Act for better understanding:

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.

(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;

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.

(3) where 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 for such period if he has actually worked for not less than seventy-five per cent of the number of days on which the establishment was in operation during such period.

Now you may compute the eligibility for gratuity based on the above information. .

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

Hi

It will be absolutely illegal on the part of your employer, if your employer treats the leave due to medical reasons and leave availed for marriage as break in service and denies your gratuity payment.

In accordance to section 2A of gratuity act, you are 100% eligible to receive gratuity payment upon completion of 4 years 190 days .

Section: 2A of Gratuity Act which Defines Continuous service is reproduced hereunder for your reference:.

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

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2173 Answers
394 Consultations

5.0 on 5.0

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