Please help me my company layoff me (due to a lack of projects in the company) on June 20, 2024, and my date of joining was Nov 04, 2019, my service in the company was 4 years 8 months am I eligible for a gratuity?
From India, Ludhiana
From India, Ludhiana
1534
THE PAYMENT OF GRATUITY ACT, 1972
2. Definitions.—In this Act, unless the context otherwise requires,— xxxx
2[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 3*** treating the absence as break in service has been passed in accordance with the standing orders, 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.
1. Subs. by Act 25 of 1984, s. 2, for clause (r) (w.e.f. 1-7-1984).
2. Ins. by Act 26 of 1984, s. 4 (w.e.f. 18-5-1984).
3. The words “imposing a punishment or penalty or” omitted by Act 22 of 1987, s. 3 (w.e.f. 1-10-1987).
5
1[Explanation.—For the purposes 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 applicable 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 2[such period as may be notified by the Central Government from time to time];]
(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.]
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Layoff, as per Section 2(kkk) of the Industrial Disputes Act, 1947, occurs when an employer cannot provide employment to a worker listed in the industrial establishment's muster roll due to reasons beyond their control.
Lay-offs under Industrial Disputes Act, 1947 In simpler terms, a layoff happens when an employer can't give work to employees temporarily, usually due to a shortage of resources. This helps the employer keep the business running during tough times.
Key Difference Between Laid Off And Fired In most cases, employees who are laid off are eligible for unemployment benefits and may be rehired when the company's situation improves. Being fired refers to the termination of employment by the employer, usually due to an employee's performance or conduct which is not the case in 'lay-off'.
In simple terms, a layoff is the incapacity of the employer to provide employment to the employee for a temporary period so that the employer can keep his business operational even in a time of scarcity. If the employer ends up shutting down the industrial facility and announces the lock-out of the industrial establishment, then the concept of layoff becomes irrelevant. Layoffs are not permanent, and they do not end the contractual relationship between the employer and employee. Layoff does not mean full termination of the employees; it means that they will not receive their full wages during that period.
In the case of Priya Laxmi Mills Ltd v. Mazdoor Mahajan Mandal (1976), the term ‘Lay Off’ is interpreted in accordance with the dictionary “in its etymological sense” as a period in which the workers are temporarily discharged from doing their work. Thereafter, the Apex Court in Workmen of Firestone Tyre and Rubber Co. of India Ltd v. Mgmt (1973) ruled that ‘Lay Off’ is neither a full dismissal of a workman nor the temporary suspension of the contractual relation between the employer and employee; rather, it is constituted as temporary unemployment for the workmen. The Supreme Court further added that ‘Lay Off’ means the failure, unwillingness, or inability of the employer to provide employment to the workmen due to the reasons listed in the definition under the Section. The definition under the Act is explicit in nature and distinct from the Western understanding of layoff; there is no need to resort to other definitions.
Unquote:
Going by the above legal provisions, being 'laid off' need not be read as 'cessation or termination' of employment as it is, as of now, only a 'lay off'. Therefore we need not conclude the employee becomes ineligible for gratuity as on date.
From India, Bangalore
2. Definitions.—In this Act, unless the context otherwise requires,— xxxx
2[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 3*** treating the absence as break in service has been passed in accordance with the standing orders, 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.
1. Subs. by Act 25 of 1984, s. 2, for clause (r) (w.e.f. 1-7-1984).
2. Ins. by Act 26 of 1984, s. 4 (w.e.f. 18-5-1984).
3. The words “imposing a punishment or penalty or” omitted by Act 22 of 1987, s. 3 (w.e.f. 1-10-1987).
5
1[Explanation.—For the purposes 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 applicable 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 2[such period as may be notified by the Central Government from time to time];]
(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.]
--------------
Layoff, as per Section 2(kkk) of the Industrial Disputes Act, 1947, occurs when an employer cannot provide employment to a worker listed in the industrial establishment's muster roll due to reasons beyond their control.
Lay-offs under Industrial Disputes Act, 1947 In simpler terms, a layoff happens when an employer can't give work to employees temporarily, usually due to a shortage of resources. This helps the employer keep the business running during tough times.
Key Difference Between Laid Off And Fired In most cases, employees who are laid off are eligible for unemployment benefits and may be rehired when the company's situation improves. Being fired refers to the termination of employment by the employer, usually due to an employee's performance or conduct which is not the case in 'lay-off'.
In simple terms, a layoff is the incapacity of the employer to provide employment to the employee for a temporary period so that the employer can keep his business operational even in a time of scarcity. If the employer ends up shutting down the industrial facility and announces the lock-out of the industrial establishment, then the concept of layoff becomes irrelevant. Layoffs are not permanent, and they do not end the contractual relationship between the employer and employee. Layoff does not mean full termination of the employees; it means that they will not receive their full wages during that period.
In the case of Priya Laxmi Mills Ltd v. Mazdoor Mahajan Mandal (1976), the term ‘Lay Off’ is interpreted in accordance with the dictionary “in its etymological sense” as a period in which the workers are temporarily discharged from doing their work. Thereafter, the Apex Court in Workmen of Firestone Tyre and Rubber Co. of India Ltd v. Mgmt (1973) ruled that ‘Lay Off’ is neither a full dismissal of a workman nor the temporary suspension of the contractual relation between the employer and employee; rather, it is constituted as temporary unemployment for the workmen. The Supreme Court further added that ‘Lay Off’ means the failure, unwillingness, or inability of the employer to provide employment to the workmen due to the reasons listed in the definition under the Section. The definition under the Act is explicit in nature and distinct from the Western understanding of layoff; there is no need to resort to other definitions.
Unquote:
Going by the above legal provisions, being 'laid off' need not be read as 'cessation or termination' of employment as it is, as of now, only a 'lay off'. Therefore we need not conclude the employee becomes ineligible for gratuity as on date.
From India, Bangalore
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FORM-F-NOMINATI ON OF GRATUITY.pdf
Gratuity Form I.doc