I am working with a company for the past 5 years. I have 2 questions 1. My first 6 months was as an exclusive full-time consultant for the company. Then I transitioned into being a full time employee. This change was only on paper but the role remained the same. Can I include these 6 months as well when thinking about Gratuity? 2. Generally, what is the timeframe for being eligible or gratuity ? Some searches says 4.6 years in enough, some say 4.8 is good. Some other articles say that 5 years is mandatory. Please help me understand
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period of 6 months when you were consultant would not be counted for calculation of gratuity
2)
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.
1. If there's transition from full-time Consultant to full-time employee and if there's anything in writing to that effect, then that period of service can be counted for to calculate gratuity.
2. The timeframe for being eligible for gratuity is as under:-
(a) Four years + One hundred and ninety days in an establishment which works for less than six days in a week; and
(b) Four years +Two hundred and forty days, in any other case.
3. Hence if your company is following working for less than six days in a week, then marked (a) above will be followed. If your company is following six days working, then marked (b) above will be followed.
I am a little confused. You mean 5 days work week will be considered at 190 days or 240 days? 1. I joined the company in september 2016. It was as a full-time consultant and there was a six month probation. I have a letter for this 2. In April 2017, I transitioned to a full time role. Have another letter given on 1st April 2017 On what basis are you saying that consultant time period can also be counted? Also based on what you are saying 4 years 8months seems to be okay to be eligible. Why then do others say 4years 10 mths or 5 years is required?
As per the Provisions of Payment of Gratuity Act, period of completed service exceeding six months continuously shall have to be reckoned as full year of service for the purpose of calculation .
2) consultant time period would not be counted
3)
Learned counsel for the appellant contended that only if the employees proved that actually they have worked for 240 days, they can claim gratuity and that the employees have not adduced any evidence to show that they have worked for 240days in the calendar year. In support of his contention, learned counsel placed reliance on the decision rendered in the case of Ranchi Legal Supports Centre and Ano. v. Chairman-cum-Managing Director, Central Coalfields Limited and Ors. (1987 PLJR 1056). Referring to the judgment of Hon'ble Supreme Court in the case of Lalappa Lingappa v. Laxmi Vishnu Textiles Mills (1981 (1) LLJ 308), in para 7 and 8 of the judgment, learned Single Judge of the Patna High Court held as under:-
8. On this reasoning, the Supreme Court held that even the permanent employees, who had remained absent without leave, and had actually worked for less than 240days in a year, were not entitled to gratuity. On the other hand, in the case of Badli employees who were employed only in case of absence of permanent employees, the gratuity was not found payable to them since they did not fulfill the conditions requiring that they should have worked for not less then 240 days in a year to qualify for gratuity. The test, therefore, is not whether the employee is described as permanent or temporary or whether he is paid daily or monthly wages. The test is whether he has actually worked for the number of days in a year as provided under the Act. If he was actually employed and had actually worked for not less than the specified number of days in a year, he will be entitled to payment of gratuity under the Act
A consultant is freelancer he is not entitled for terminal benefits as ph and gratuity. First six months as consultant will not be taken into consideration for calculation of gratuity. Minimum period for eligibility of gratuity is five years.
1. Five days' working will be considered at 190 days, for gratuity calculation, for fifth year.
2. Consultant period of service can also be counted if retrospectively you have been regularised from the date of your appointment as Consultant and if there's a specific official order to that effect.
3. My answers are based on the payment of gratuity act, 1972
1. Five days' working will be considered at 190 days, for gratuity calculation, for fifth year.
2. Consultant period of service can also be counted if retrospectively you have been regularised from the date of your appointment as Consultant and if there's a specific official order to that effect.
3. My answers are based on the payment of gratuity act, 1972
It's 5 years as per the Act. But in your situation you are eligible for the Gratuity.
Dear Sir
A consultant is not entitled to gratuity and terminal benefits.
So while calculating 5 years, the first 6 months spent as a consultant cannot be counted unless you have been regularized from the date of your appointment as a consultant.
Thank you
Your gratuity calculation period will be reckoned from the date of your confirmed employment with the firm, the first six months consultation period may not be treated as employment because it was clearly stated that you were deployed for consulting services alone and were not on the salary roll of the employer's firm.
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.
Section 4(2) of the Payment of Gratuity Act. The section spells out the condition on the eligibility of an employee for gratuity in the event of him not completing the full five year period:
The section says 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.
There is also a judgment by the Madras High Court which says that there is the eligibility for the gratuity of an employee who completes 4 years and 240 days of service
For the calculation of the 5 years, a single year is assessed as 240 working days for employees working in organisations that do not involve work underground. For those working in mines and other such fields, a year is assessed as 190 days.
You may note that this is a public forum where plenty of lawyers give their opinions.
You cannot force all the lawyers to give the same opinion or the one which would suit your desire.
The opinions given can be considered as opinion to your knowledge and you cannot conclude just like that without ascertaining the prevailing laws in this regard.
For those working in mines and other such fields, a year is assessed as 190 days.
If your initial six months period has been mentioned as probation period in your employment offer letter or letter of appointment, then your service will reckoned from the date of commencement of probation period.
What is your HR saying about the eligibility of gratuity to you?