Dear All,
As per Section 4 of the Payment of Gratuity Act, 1972 provides that an employee will be entititled to gratuity on completion of continuous service of 5 years and while clarifying the 5 years complete service, Andhra Pradesh High Court had held that the minumum period for becoming eligible for payment of gratuity should not be less than 5 years. It was further clarified that the words 'or' part in excess of six months' are only meant for the purposes of computation of gratuity for the subsequent year or years to first complete 5 years. It was also held that if an employee has worked for 4 years 11 months and 10 days, he will not be eligible for gratuity for want of completion of 5 years.
Further in a subsequent case, Madras High Court while relying upon the clarification by the Supreme Court pertaining to 240 working days in one year will be deemed to be continuous service of one year, meaning thereby that there should not be complete 12 calendar months' service. 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.
PRINTED IN LABOUR LAW REPORTER IN OCTOBER - 1998.
L.C. Pal
From India, Delhi
2As per Section 4 of the Payment of Gratuity Act, 1972 provides that an employee will be entititled to gratuity on completion of continuous service of 5 years and while clarifying the 5 years complete service, Andhra Pradesh High Court had held that the minumum period for becoming eligible for payment of gratuity should not be less than 5 years. It was further clarified that the words 'or' part in excess of six months' are only meant for the purposes of computation of gratuity for the subsequent year or years to first complete 5 years. It was also held that if an employee has worked for 4 years 11 months and 10 days, he will not be eligible for gratuity for want of completion of 5 years.
Further in a subsequent case, Madras High Court while relying upon the clarification by the Supreme Court pertaining to 240 working days in one year will be deemed to be continuous service of one year, meaning thereby that there should not be complete 12 calendar months' service. 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.
PRINTED IN LABOUR LAW REPORTER IN OCTOBER - 1998.
L.C. Pal
From India, Delhi
Hello Sir,
I have been trying to fight for my gratuity for quite time now but my ex-employer has the following excuses, please advise me if have any option to fight for it. My last argument with them is as followed
From the Attached Opinion:
On going the above provisions under the said Act, I am of the view that the Querist can differ with the view taken by the Hon’ble Madras High Court. The language of Section 4(1), and particularly the words emphasized by me above, strongly suggest that Parliament consciously and deliberately prescribed a minimum employment period which an employee must complete before becoming eligible for gratuity. The words “after he has rendered continuous service for not less than five years”, to my mind, lay down an absolute minimum which is not susceptible to any reduction, except in cases of death or disablement, which are specifically excluded from the minimum requirement under the proviso. When the legislative draftsman uses words in the negative such as “not less than”, or “until” or “unless”, they are normally treated as being imperative in character, and depending on the context in which they are used, the Supreme Court has generally treated them as mandatory.
Dear Sir,
I am very glad to know that you did seek an advocate's opinion on this Matter. Looks like the advocate ( In his Words )wants to deffier with the view taken by the Hon’ble Madras High Court. In that case it does make sense for you not to process my Gratuity without challanging the Hon’ble Madras High Court's verdict.
The Advocate:
The words “after he has rendered continuous service for not less than five years”, to my mind, lay down an absolute minimum which is not susceptible to any reduction, except in cases of death or disablement, which are specifically excluded from the minimum requirement under the proviso. When the legislative draftsman uses words in the negative such as “not less than”, or “until” or “unless”, they are normally treated as being imperative in character, and depending on the context in which they are used, the Supreme Court has generally treated them as mandatory.
I Believe:
The words “after he has rendered continuous service for not less than five years”, to my mind, lay down an absolute minimum which is not susceptible to any reduction, except in cases of death or disablement, which are specifically excluded from the minimum requirement under the proviso. When the legislative draftsman uses words in the negative such as “not less than”, or “until” or “unless”, they are normally treated as being imperative in character, and depending on the context in which they are used, the Supreme Court has generally treated them as mandatory.
for not less than five years Vs continuous service for not less than five years
I do agree with the openion of the advocate but it also can be continuous service for not less than five years and my continuous service is not less than 5 years.
Any How, As i Accept that i am a citizen of INDIA where legal battles go years long and being an one man army i can't take such a long process for now to fight againt a huge organisation alone . i would wish both myself and you best of luck.
Sunil
From India, Bangalore
I have been trying to fight for my gratuity for quite time now but my ex-employer has the following excuses, please advise me if have any option to fight for it. My last argument with them is as followed
From the Attached Opinion:
On going the above provisions under the said Act, I am of the view that the Querist can differ with the view taken by the Hon’ble Madras High Court. The language of Section 4(1), and particularly the words emphasized by me above, strongly suggest that Parliament consciously and deliberately prescribed a minimum employment period which an employee must complete before becoming eligible for gratuity. The words “after he has rendered continuous service for not less than five years”, to my mind, lay down an absolute minimum which is not susceptible to any reduction, except in cases of death or disablement, which are specifically excluded from the minimum requirement under the proviso. When the legislative draftsman uses words in the negative such as “not less than”, or “until” or “unless”, they are normally treated as being imperative in character, and depending on the context in which they are used, the Supreme Court has generally treated them as mandatory.
Dear Sir,
I am very glad to know that you did seek an advocate's opinion on this Matter. Looks like the advocate ( In his Words )wants to deffier with the view taken by the Hon’ble Madras High Court. In that case it does make sense for you not to process my Gratuity without challanging the Hon’ble Madras High Court's verdict.
The Advocate:
The words “after he has rendered continuous service for not less than five years”, to my mind, lay down an absolute minimum which is not susceptible to any reduction, except in cases of death or disablement, which are specifically excluded from the minimum requirement under the proviso. When the legislative draftsman uses words in the negative such as “not less than”, or “until” or “unless”, they are normally treated as being imperative in character, and depending on the context in which they are used, the Supreme Court has generally treated them as mandatory.
I Believe:
The words “after he has rendered continuous service for not less than five years”, to my mind, lay down an absolute minimum which is not susceptible to any reduction, except in cases of death or disablement, which are specifically excluded from the minimum requirement under the proviso. When the legislative draftsman uses words in the negative such as “not less than”, or “until” or “unless”, they are normally treated as being imperative in character, and depending on the context in which they are used, the Supreme Court has generally treated them as mandatory.
for not less than five years Vs continuous service for not less than five years
I do agree with the openion of the advocate but it also can be continuous service for not less than five years and my continuous service is not less than 5 years.
Any How, As i Accept that i am a citizen of INDIA where legal battles go years long and being an one man army i can't take such a long process for now to fight againt a huge organisation alone . i would wish both myself and you best of luck.
Sunil
From India, Bangalore
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Madras HC judg regarding gratuity is applicable if workmen is working 4 years 240 days..pdf