My wife was working in an educational institute as a lecturer since November 2009 up until 31st March, 2018. However, how she worked there is what I have divided as below:
Nov 2009 to Nov 2012 (3 years, 1 month): Worked as full-timer
Dec 2012 to May 2013 (6 months, where 3 months was paid and 3 months LWP): Maternity Leave
Jun 2013 to Dec 2013 (7 months): Worked as part-timer
Jan 2014 to Mar 2018 (4 years, 3 months) Worked as full-timer
Now, the authorities say that as her service was broken for 7 months in between when she was working as a part-timer, they cannot consider paying her gratuity.
So, my queries are:
1. Is it right when they say that her service is broken when she worked as a part-timer?
2. Even if it is considered broken, could it be considered broken only for that particular year and still consider her total service excluding the 7 months?
3. I feel that she is still eligible for Gratuity in this case. If she is eligible, what would be the best way to take it up legally?
I believe that she is eligible because of the following facts.
There was no termination, rejoining, nor any paper works for the same.
Her salary was paid through Cheques during part time, where as there were salary credits to her account when she was a full timer
Her Relieving letter and experience letters say that she has worked from Nov 2009 to March 2018
Please suggest as to what would be the best thing to do.
From India, Bengaluru
1Nov 2009 to Nov 2012 (3 years, 1 month): Worked as full-timer
Dec 2012 to May 2013 (6 months, where 3 months was paid and 3 months LWP): Maternity Leave
Jun 2013 to Dec 2013 (7 months): Worked as part-timer
Jan 2014 to Mar 2018 (4 years, 3 months) Worked as full-timer
Now, the authorities say that as her service was broken for 7 months in between when she was working as a part-timer, they cannot consider paying her gratuity.
So, my queries are:
1. Is it right when they say that her service is broken when she worked as a part-timer?
2. Even if it is considered broken, could it be considered broken only for that particular year and still consider her total service excluding the 7 months?
3. I feel that she is still eligible for Gratuity in this case. If she is eligible, what would be the best way to take it up legally?
I believe that she is eligible because of the following facts.
There was no termination, rejoining, nor any paper works for the same.
Her salary was paid through Cheques during part time, where as there were salary credits to her account when she was a full timer
Her Relieving letter and experience letters say that she has worked from Nov 2009 to March 2018
Please suggest as to what would be the best thing to do.
From India, Bengaluru
Thank you Jude for the quick response. I had a feeling that part time service is not considered; however, since her part-time employment was in between her service, I also wanted to know if her service can be considered as paused instead of broken, when she was working part time and then resumed when she continued to work as a full timer again?
She had checked with her college principal and was told (Orally) that the part-time thing would not affect her service. The mistake from her end though is that there is no written record of the same.
From India, Bengaluru
She had checked with her college principal and was told (Orally) that the part-time thing would not affect her service. The mistake from her end though is that there is no written record of the same.
From India, Bengaluru
Dear anonymous friend,
The pertinent question arises from the march of the events narrated in your post culminating in the claim for gratuity for the entire service your wife rendered as a lecturer in the same educational establishment is this:
" Whether a spell of part-time employment in the same establishment sandwiched consecutively
in between two spells of full-time employment just before and after by the same employee would
affect her continuous service as defined u/s 2-A of the Payment of Gratuity Act,1972 so as to disentitle
her for gratuity for any of the spells eventually? "
Since my search for a direct case law in this regard ended in vain to find an appropriate answer to the above query, I am compelled to rely on the ratio decidendi of case laws relating to continuous service u/s 25-B of the Industrial Disputes Act,1947 in respect of part-time employees.
To my knowledge, no Indian Labor Law distinguishes part-time employment from full-time employment. Of course there are specific provisions or separate laws protecting the rights of part-time employees in force in countries like the U.K and the U.S.A. Therefore, in India, whether the essential ingredient of employment is part-time or full-time, the contract of employment between the employer and the employee remains the same. That's why the definitions of the terms denoting the person hired under the contract of employment occurring in various Labor Laws do not make any distinction as part-time or full-time employees. You may refer to the terms "workman" u/s 2(s) of the I.D Act,1947, " worker "u/s 2(l) of the Factories Act,1948, "employee" u/s 2(f) of the EPF Act,1952 and 2(e) of the Payment of Gratuity Act,1972 respectively or " the person employed" under the various States' Shops and Employments Acts. In the last cited there may be the qualifying phrase " wholly or principally employed in connection with the business of the establishment " which would include the part-time employees also if they are engaged for the principal activity of the establishment by virtue of the use of the conjunction 'or' in between. Strictly speaking, the definition of the term " employee" u/s 2(e) of the P.G Act,1972 is wider in meaning and scope than all other definitions cited above.Therefore, a part-time lecturer employed in a teaching institution automatically becomes an employee of the institution in view of his/her principal work being teaching despite the limited hours of work.
Coming to continuous service under the I.D Act,1947 and the P.G Act,1972. Juxtaposing the two definitions sec.25-B under the former and sec.2-A under the latter, one can easily conclude that " the continuous service" under the P.G Act,1972 is more inclusive as it treats even the interruption due to absence from duty without leave not declared as break in service as continuous service. Therefore, with the subsistence of the existing contract of employment, the part-time service rendered by the employee has to be taken into account for the purpose of continuous service under the P.G Act,1972. Specifically, since the part-time service of the lady immediately follows her maternity leave, there can not be any iota of even a remote chance for the speculation of her gainful employment elsewhere in the spare time. So the educated guess could be that the part-time employment could have been preferred as an alternative arrangement at the instance of the Management which would clearly explain the absence of any record in writing.
The Supreme Court analysed the question of whether a part-time employee would be entitled to the benefit of continuous service u/s 25-B as well as the protection u/s 25-F of the I.D Act,1947 in the Divisional Manager, New India Assurance Co., Ltd., vs A.Sankaralingam [ AIR 2009 SC 309 ]. Relying on its earlier judgment in Uttaranchal Forest Hospital Trust vs. Dinesh Kumar [2008 AIR SCW 445 ], the Court categorically held that the question as to whether a part-time workman would be covered within the definition in sec.2(s) of the Act and whether he would be entitled to the benefit of continuous service u/s 25-B and the protection of sec. 25-F is to be answered only in favour of the workman.
In the light of the above reasoning, there is no doubt that the poster's wife is entitled to gratuity under the P.G Act,1972 for the entire period from November,2009 to March,1018.
If the Management denies gratuity on the ground of the interim part-time employment, better file a claim for gratuity u/s 7(4)(b) of the P.G Act,1972 together with interest before the Controlling Authority for the area where the educational institution is situated. Since the facts of the case are complicated and different, the Authority must be appraised of convincingly. Therefore, engage the services of a seasoned Advocate. Best of Luck!
From India, Salem
The pertinent question arises from the march of the events narrated in your post culminating in the claim for gratuity for the entire service your wife rendered as a lecturer in the same educational establishment is this:
" Whether a spell of part-time employment in the same establishment sandwiched consecutively
in between two spells of full-time employment just before and after by the same employee would
affect her continuous service as defined u/s 2-A of the Payment of Gratuity Act,1972 so as to disentitle
her for gratuity for any of the spells eventually? "
Since my search for a direct case law in this regard ended in vain to find an appropriate answer to the above query, I am compelled to rely on the ratio decidendi of case laws relating to continuous service u/s 25-B of the Industrial Disputes Act,1947 in respect of part-time employees.
To my knowledge, no Indian Labor Law distinguishes part-time employment from full-time employment. Of course there are specific provisions or separate laws protecting the rights of part-time employees in force in countries like the U.K and the U.S.A. Therefore, in India, whether the essential ingredient of employment is part-time or full-time, the contract of employment between the employer and the employee remains the same. That's why the definitions of the terms denoting the person hired under the contract of employment occurring in various Labor Laws do not make any distinction as part-time or full-time employees. You may refer to the terms "workman" u/s 2(s) of the I.D Act,1947, " worker "u/s 2(l) of the Factories Act,1948, "employee" u/s 2(f) of the EPF Act,1952 and 2(e) of the Payment of Gratuity Act,1972 respectively or " the person employed" under the various States' Shops and Employments Acts. In the last cited there may be the qualifying phrase " wholly or principally employed in connection with the business of the establishment " which would include the part-time employees also if they are engaged for the principal activity of the establishment by virtue of the use of the conjunction 'or' in between. Strictly speaking, the definition of the term " employee" u/s 2(e) of the P.G Act,1972 is wider in meaning and scope than all other definitions cited above.Therefore, a part-time lecturer employed in a teaching institution automatically becomes an employee of the institution in view of his/her principal work being teaching despite the limited hours of work.
Coming to continuous service under the I.D Act,1947 and the P.G Act,1972. Juxtaposing the two definitions sec.25-B under the former and sec.2-A under the latter, one can easily conclude that " the continuous service" under the P.G Act,1972 is more inclusive as it treats even the interruption due to absence from duty without leave not declared as break in service as continuous service. Therefore, with the subsistence of the existing contract of employment, the part-time service rendered by the employee has to be taken into account for the purpose of continuous service under the P.G Act,1972. Specifically, since the part-time service of the lady immediately follows her maternity leave, there can not be any iota of even a remote chance for the speculation of her gainful employment elsewhere in the spare time. So the educated guess could be that the part-time employment could have been preferred as an alternative arrangement at the instance of the Management which would clearly explain the absence of any record in writing.
The Supreme Court analysed the question of whether a part-time employee would be entitled to the benefit of continuous service u/s 25-B as well as the protection u/s 25-F of the I.D Act,1947 in the Divisional Manager, New India Assurance Co., Ltd., vs A.Sankaralingam [ AIR 2009 SC 309 ]. Relying on its earlier judgment in Uttaranchal Forest Hospital Trust vs. Dinesh Kumar [2008 AIR SCW 445 ], the Court categorically held that the question as to whether a part-time workman would be covered within the definition in sec.2(s) of the Act and whether he would be entitled to the benefit of continuous service u/s 25-B and the protection of sec. 25-F is to be answered only in favour of the workman.
In the light of the above reasoning, there is no doubt that the poster's wife is entitled to gratuity under the P.G Act,1972 for the entire period from November,2009 to March,1018.
If the Management denies gratuity on the ground of the interim part-time employment, better file a claim for gratuity u/s 7(4)(b) of the P.G Act,1972 together with interest before the Controlling Authority for the area where the educational institution is situated. Since the facts of the case are complicated and different, the Authority must be appraised of convincingly. Therefore, engage the services of a seasoned Advocate. Best of Luck!
From India, Salem
Hi
I am of the opinion that in order to become eligible for gratuity under the Payment of Gratuity Act two conditions are to be fulfilled.
Condition 1
The person should be an employee under Section 2(e) of the PG Act
Employee - The term “employee” is defined in Section 2(e) of the Act as any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity;’.
Hence, If any person has worked in the capacity of an employee as defined under section 2(e) of the Payment of Gratuity Act,1972 then he/she becomes eligible to have gratuity from the employer subject to fulfillment of the second condition stated below as there is nothing like permanent, probation, temporary, casual etc. for entitlement or non- entitlement of gratuity for an employee
Condition 2
Continuous Service
The person should have completed a continuous period of five years
Continuous Service – The term “continuous service” is defined in Section 2A of the Act - 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.
In your case it is an admitted fact by the School Authority that your wife has continuously worked for the period from Nov 2009 to March 2018 as per her relieving letter issued by them.
As such the master and servant relationship commenced from Nov 2009 and came to an end in March, 2918.
You also mentioned that there is no break-inservice.
You may approach the Controlling Authority under the Payment of Gratuity Act in your area and prefer a claim. You have fit case.
Regards
P.S.Lakshmanan
S. G. Management Services
(PAN INDIA Consultant – Labour Law Compliance,
PF, ESI, P Tax, Benefit Management &
POSH COMPLIANCE) - KOLKATA
From India, Kolkata
I am of the opinion that in order to become eligible for gratuity under the Payment of Gratuity Act two conditions are to be fulfilled.
Condition 1
The person should be an employee under Section 2(e) of the PG Act
Employee - The term “employee” is defined in Section 2(e) of the Act as any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity;’.
Hence, If any person has worked in the capacity of an employee as defined under section 2(e) of the Payment of Gratuity Act,1972 then he/she becomes eligible to have gratuity from the employer subject to fulfillment of the second condition stated below as there is nothing like permanent, probation, temporary, casual etc. for entitlement or non- entitlement of gratuity for an employee
Condition 2
Continuous Service
The person should have completed a continuous period of five years
Continuous Service – The term “continuous service” is defined in Section 2A of the Act - 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.
In your case it is an admitted fact by the School Authority that your wife has continuously worked for the period from Nov 2009 to March 2018 as per her relieving letter issued by them.
As such the master and servant relationship commenced from Nov 2009 and came to an end in March, 2918.
You also mentioned that there is no break-inservice.
You may approach the Controlling Authority under the Payment of Gratuity Act in your area and prefer a claim. You have fit case.
Regards
P.S.Lakshmanan
S. G. Management Services
(PAN INDIA Consultant – Labour Law Compliance,
PF, ESI, P Tax, Benefit Management &
POSH COMPLIANCE) - KOLKATA
From India, Kolkata
Dear Shri Umakanthanji,
I made a through reading of the post made by you over the matter of eligibility of gratuity.
In my view the lady lecturer is eligible for the benefit under gratuity. The employment of concerned employee remained smoky on ground of various reasons the emoloyee was on MB leave between Dec 2012 to May 2013 and for the period she was paid 3 month and rest eriod LWP, which can not be treated as break in service.
Further, howcome an regular employee becomes part timer again becomes full timer is not clarified by the management. In absence of termination letter and new appointment letter for both the period of service to be count as one. In many cases the HC & SC has ruled that to count the service period under contract/casual/temporary period as total tenure of service. {{Union of India & Ors. Vs. Rakesh Kumar & Ors.
[Civil Appeal No. 3938 of 2017 arising out of SLP (C) No. 23723 of 2015],[C.A .No.3939 of 2017 arising out of SLP (C) No.23725 of 2015], [C.A. No.3940 of 2017 arising out of SLP (C) No.3382 of 2016],,[C.A. No.3941 of 2017 arising out of SLP (C) No.28597 of 2016],,[C.A. No.4384 of 2017 arising out of SLP (C) No.821 of 2017],,[C.A. No.3943 of 2017 arising out of SLP (C) No.8365 of 2017 @ CCNO.1516/2017],[C.A. No.3944 of 2017 arising out of SLP (C) No.3719 of 2017]. Also High Court of madras {Superintending Engineer, Mettur Thermal Power Station, Mettur vs. Appellate Authority, Joint Commissioner of Labour, Coimbatore & Anr, 2012 LLR 1160}
Therefore, this is a fit case to fight for justice if not considered for Gratuity.
From India, Mumbai
I made a through reading of the post made by you over the matter of eligibility of gratuity.
In my view the lady lecturer is eligible for the benefit under gratuity. The employment of concerned employee remained smoky on ground of various reasons the emoloyee was on MB leave between Dec 2012 to May 2013 and for the period she was paid 3 month and rest eriod LWP, which can not be treated as break in service.
Further, howcome an regular employee becomes part timer again becomes full timer is not clarified by the management. In absence of termination letter and new appointment letter for both the period of service to be count as one. In many cases the HC & SC has ruled that to count the service period under contract/casual/temporary period as total tenure of service. {{Union of India & Ors. Vs. Rakesh Kumar & Ors.
[Civil Appeal No. 3938 of 2017 arising out of SLP (C) No. 23723 of 2015],[C.A .No.3939 of 2017 arising out of SLP (C) No.23725 of 2015], [C.A. No.3940 of 2017 arising out of SLP (C) No.3382 of 2016],,[C.A. No.3941 of 2017 arising out of SLP (C) No.28597 of 2016],,[C.A. No.4384 of 2017 arising out of SLP (C) No.821 of 2017],,[C.A. No.3943 of 2017 arising out of SLP (C) No.8365 of 2017 @ CCNO.1516/2017],[C.A. No.3944 of 2017 arising out of SLP (C) No.3719 of 2017]. Also High Court of madras {Superintending Engineer, Mettur Thermal Power Station, Mettur vs. Appellate Authority, Joint Commissioner of Labour, Coimbatore & Anr, 2012 LLR 1160}
Therefore, this is a fit case to fight for justice if not considered for Gratuity.
From India, Mumbai
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