• My ex organisation denying gratuity


I worked for Capgemini from 11th April, 2013 to 29th Jan,2018 i.e. 4 years and 294 days. I was also onsite (short term) for 73 days.

When I dropped the paper, I confirmed with HR of my gratuity eligibility and after getting confirmation I went ahead with buyout of 2 months (approx.) notice period.

Now Capgemini is not ready to process my Gratuity, they are saying :
"Gratuity is not applicable for you as you have not completed the mandatory 4 yr 240 day at offshore.
You had been onsite from 31-Oct-16 to 11-Jan-17, hence short of 20 days for the eligible criteria".

Could you please let me know what should be best option for me to move ahead with this situation.

1) I have experience letter from 11th April, 2013 to 29th Jan,2018
2) I have bought out my notice period, mainly because I will get the Gratuity amount later
3) If not, I could have easily stayed 20 more days in Capgemini to became eligible
4) I went onsite for company work and not for personal reasons
Asked 4 years ago in Labour

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7 Answers

You are eligible for gratuity as per new rule in organisation which work for 5 days a week.

4 years 190 days point.

Please below points in details.

Gratuity Rules

Every employer is bound to give gratuity amount to its employees if it employs more than 10 people. But you would get the gratuity only after completing 5 years in the service. There are other rules of gratuity. Let us understand them one by one.

5 Years Continuous Service

You will get the gratuity only after the completion of 5 years in the service. Also, there should not be any break in the service. It must be continuous.

Note, the condition of 5 years service has a small relaxation. In the last year, mere service of 240 days would be considered as one year. Hence, You would be eligible for the gratuity after 4 years and 240 days of continuous service.

If are working in an organisation which works for 5 days in a week or less, mere 190 days would be counted as last one year. Therefore, in such case, you would be eligible for the gratuity after 4 years and 190 days.

Continuous service means uninterrupted service. But, it does include the interruption due to, leave, sickness or accident. The strike, lay-off, or a lockout is also not considered as an interruption. Indeed, any interruption which is not due to the fault of the employee, would not be counted. But, if you have taken a sabbatical or leave without pay, then your service would get interrupted.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

You are eligible for gratuity in these circumstances as you have worked for company for a period more then 4 years 240 days as prescribed under payment of gratuity act.

Based on relevant documents experience letter and reliving letter and joining letter your offshore duty letter file an complaint with the labour commissioner as under Payment of Gratuity act labour commissioner is proper authority for gratuity issues you shall get relief.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

The gratuity eligibility service as per Gratuity Act 1972 is 5 years.

But as per the judgment from Supreme Court below and the quotation from the book quoted below it seems that the gratuity eligibility service is 4 years 240 days. Hence, you can eligible as your service is more than the prescribed period.

You can complain to the controlling authority, i.e., the assistant labour commissioner, in case of dispute as the employer refused to accept the application filed for the payment of gratuity.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

You are entitled for gratuity as you have worked for company for period of 4 years and 279 days

You went on-site for company work and not for personal reasons

Request company to reconsider its decision

Ajay Sethi
Advocate, Mumbai
87939 Answers
6207 Consultations

5.0 on 5.0

1. if you have the proof that you had gone onsite for the stated period for the company's work only and on instructions of the company, then ideally that period should be added to the period you remained offshore for making you eligible for claiming gratituity

2. if the company is not responsive then you will have to issue them a legal notice for claiming the gratuity

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

An employee acquires a right to receive gratuity on termination of his employment after he has rendered continuous service for not less than five years.

The meaning of continuous period is important to understand and is explained in the following points.

If an employee renders continuous service for 240 days in a year, he will be deemed to have continued in service for one year. This must be applied for over a period of five continuous years.

As long as the employee is in service and his service has not been terminated, mere absence or mere not reporting to duty or ceasing to work for no fault of the employee, the employee is deemed to be in service. The thing which is required for continuous service is, the relation between the employer and the employee should not get terminated over the statutory period of five years.

If any break arises in the duration of the service, it must be due to the fault of the employee and not the employer.

The following are the acceptable breaks during the period of continuous service

Holidays are covered during the period of continuous service. This includes Sundays, national or state holidays.

Sickness, accidents, leave, lay-off, strikes.

Cessation of work but not due to employees fault.

Changes in management. Where a person is promoted from one post to the other, his service will be continuous and will not start from a fresh timeline.

Absence from duty without leave.

Maternity leave for women, Paternity leave, wherever applicable.

Therefore the offshore work is not your fault, it should be considered as continuous service.

You first get the refusal in writing from the authorities after that you can issue a legal notice based on the above information.

The employer cannot deny you the entitled gratuity.

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

You can send them a legal notice. If not adhered then you need to file a case in labour Court

Prashant Nayak
Advocate, Mumbai
27267 Answers
88 Consultations

4.4 on 5.0

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