Yes it's applicable

The gratuity is paid to an employee on the termination of his employment after he has served for five continuous years.

In a year he must have worked 240 days.

Section 4 of the Payment of Gratuity Act, 1972 provides that an employee will entitled to gratuity on completion of continuous service of 5 years

2)MADRAS HIGH COURT has further held that an employee, who has put in service of 4 Years 10 Months and 18 Days in the 5 years, will be entitled to gratuity.

In your case since your company is working less then 6 days in week you are eligible for gratuity if you have completed 4 years and 190 days service in last year.

No , you are not eligible for the payment of gratuity  as per Section 4 of Payment of Gratuity Act 1972 because you have not completed 5 years terms of your employment with your employer.

There are other conditions of your employment which mandates your eligibility for payment of gratuity those are as follows:- 

1.Your firm has more than 10 employees continuously employed more than 5 years including you. 

2 You have not done any damage to your employer and did not commit any Act of morale turpitude during your employment and also you have not been dismissed by your employer due to violent conduct during the course of your employment.

3- As per section 4 of Payment of Gratuity Act 1972 ,you have to complete 5 years terms of your employment without causing any damage and  all conditions  complied  by you as mentioned herein above then you are eligible for the payment of gratuity from your employer. 

CONCLUSION IN YOUR CASE:- ANSWER IS NO.

As per your facts of the case and No of Years and months completed by you during the course of employment is 4 years and 209 days does not entitle you to claim payment of gratuity from your employer.

Best regards. 

1. An employee who has completed at least 5 years of service in any company are entitled to gratuity. This is an important part of the salary structure of any employee and ultimately, goes to provide a big lump sum amount in their hands. As per Section 4(1) of the Payment of Gratuity Act 1972, an employee becomes eligible for gratuity only after completion of 5 years of continuous service with the same establishment.

2. Section 4(2) of Payment of Gratuity Act lays down that for every completed year of service in excess of six months, the employer shall pay gratuity to an employee. That means if an employee works in the establishment for more than 6 months in a year, he shall be eligible to get gratuity at the prescribed rate. So, if an employee completes 4 years and 6 months of continuous service in the same establishment, he is eligible to get gratuity as per the Payment of Gratuity Act 1972.

1. Gratuity has to be paid to an employee, who has worked continuously for 4 years, 190 days in a Company which operates 5 days' a week.

2.  There are many precedents and judgements upholding the above.

3.   Infact I myself have handled a similar case of an IT employee in Bangalore and I was successful in getting the employee an amount of around Rs. 6 Lakhs as gratuity, which had been rejected by his earlier employer.

Yes the employee is eligible for the gratuity period.

Since Completed year of service is basis continuous service, continuous service is justified by 190 days (in case of establishments working less than 6 days in a week) and 240 days in case of establishments working 6 days in a week.

Hence, ONLY if an employee completes 4 years and 190 / 240 days of continuous service in the same establishment, he may be eligible for gratuity as per the Payment of Gratuity Act 1972.

As was held in the case of Dalmia Magnesite Corporation vs regional Labour Commissioner Madras if this service is interrupted for reason other than mentioned above it shall be deemed has not been continuous service.

Where an employee not being an employee employed in a seasonal establishment is not in continuous service for any period of 1 year, shall be deemed to be in continuous service under the employer if during the period 12 calendar months preceding the date with reference to which calculation is to be made, he has actually worked under the employee for not less than 190 days in the case of an employee employed below ground in a mine or any establishment which work for less than 6 days in a week and 240 days in any other case. Under clause 2 of section 2A when determining the continuous service for any period of 6 months rather then 1 year for Payment of Gratuity, the number of days the employee should have actually work should be half the number of days actually work which constitutes continuous service for a period of 1 year. What this means is if we are calculating gratuity for a period of 6 month rather than 1 years then 190 days will be replaced by 95 days and 240 days will be replaced by 120 days.

Dear Sir,

4years 240 days is enough for claiming gratuity.

The term "Completed Year of Service" means continuous service for ONE year.

An employee is said to have rendered continuous service, if -

1. He has been in uninterrupted service, including service interrupted by sickness, accident, absents from duty with or without leave, lay-off, strike, or lock-out or cessation of work not due to the fault of the employee. [Note: if an employee having been superannuated is re-employed by the employer without any break in service, he will be eligible for payment of service]
2. In case of mine or non-seasonal establishment working for less than SIX days in week, he has actually worked for at least 190 days [in Mine] during the period of TWELVE months or 95 days, during the preceding SIX months, he shall be deemed to have rendered continuous service for a period of ONE year or SIX months, respectively.
3. In a case of any other non-seasonal establishment, he has actually worked for at least 240 days during the preceding 12 months or 120 days during the preceding SIX months, he shall be deemed to have rendered continuous service for a period of ONE year or SIX months, respectively.
4. In a case of a seasonal establishment, he has actually worked for at least 75% of the days on which the establishment was in operation.

For this purpose, an employee shall be deemed to have worked on a day on which:

1. He has been laid-off under an agreement or in accordance with standing orders;
2. He has been on leave with full wages, earned in the previous year;
3. He has been absent due to temporary disablement caused by accident arising out of, and in the course of his employment, and
4. In the case of a female, she has been on maternity leave not exceeding TWELVE weeks.

In order to explain it better, we have compiled a list of frequently asked questions along with answers.

FAQ-1 Natasha joined ABC Limited on 2nd June 2003. She was on maternity leave from 1st September 2006 to 31st March 2007. After delivery of her baby, she decided to take a break for one year. She joined back the company on 1st April 2008. Eventually, she resigned on 15th September 2011. Will she be entitled to Gratuity?

Answer: NO, she is not entitled to Gratuity. Even though she joined the company on 2nd June 2003, however, she took a break of ONE year. After re-joining the company on 1st April 2008, she didn't complete the minimum required continuous service of FIVE years and hence not entitled to gratuity. Her second stint with the company will be considered as new employment.

In this case, for calculating the eligibility, you must consider the following -

1. Was she on company roll during her break of one year?
2. Has she been paid during her break?

If and only if, your answer to both questions is yes, then only she will become eligible for gratuity and her gratuity shall be calculated for EIGHT Years.

"As per Madras High Court judgement in a case of Mettur Beardsell Limited [represented by its Personal Manager], Madras v/s Regional Labour Commissioner [Central Authority under the Payment of Gratuity Act, 1972], Madras, it has been stated that if an employee has rendered continuous service of 240 days in the fifth year of service then for the purpose of calculation of gratuity, it must be considered as if he has completed FIVE years of continuous service.\\\"

Organization with 5 days working, employee become entitle for gratuity after completion of 4 years and 190 days.

Yes the Employee is eligible for Gratuity.

Gratuity is provided to Employee who has rendered at least 5 years of continuous service in an organization.However, In case, an employee not completing 5years, he is still eligible for Gratuity provided they meet following condition.

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.

Employee, working in a seasonal establishment, is not in continuous service, 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.

1. Employee will eligible for gratuity if he works in an organization for 4 years and 240 days.

2. 4 years and 190 days is eligibility criteria for employees working below ground that is in some mine. 

5 years continuous service is required for the eligibility so later one will apply.

- An employee is eligible to receive gratuity , only if he has completed minimum five years of service with an establishment.

- However, it can be paid before the completion of five years at the death of an employee or if he has become disabled due to accident or disease.
- Further , as per Madras High Court, the gratuity of an employee who completes 4 years and 240 days of service  is eligible for gratuity.

- Further, as per Section 2A(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. 

- And further , Section 4(2) of the Payment of Gratuity Act provides that for every completed year of service in excess of six months, the employer shall pay gratuity to an employee for the whole year. That means if an employee works in the establishment for more than 6 months in a year, he shall be eligible to get gratuity , if the employee has had continuous service of 190 / 240 days.

- And further , since completed year of service is basis continuous service, hence for the establishment which working is less than 6 days in a week , rule of 4 years 190 days will be applicable , and for the establishment working 6 days working rule of 240 would be applicable. 

- Since, the IT firms operates only 5 days in a week , hence rule of 4 years 190 days will be applicable. 

Good luck and dont forget to rating Positively.