Yes he is eligibel for gratuity payment. We have also made payment in the past on the same circumstances citing court ruling. Court rulings are binding on the establishments. It is a fact, no one can deny it.
Regards,
From India, Mumbai
Regards,
From India, Mumbai
2
Dear Mr. Malik,
The Act itself is clear on this subject that 4 years and 240 days of service 5 years of service as the act says 5 years of continuous service. Now for this we have to see the definition of one continuous year of service which is given under section 2A of payment of Gratuity Act. the same is reproduced for your reference:
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 2[***] 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 any employee employed below the ground in a mine or in an establish-ment 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.
3[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 twelve weeks.]
(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.]
As per the above definition when an employee completes 4 years and 240 days (one year of continuous service) in fifth year, he becomes eligible for gratuity. This is the funda which is clarified by Courts in various judgements cited by worthy members in the post. Hope this clarifies the position of the act.
From India, New Delhi
The Act itself is clear on this subject that 4 years and 240 days of service 5 years of service as the act says 5 years of continuous service. Now for this we have to see the definition of one continuous year of service which is given under section 2A of payment of Gratuity Act. the same is reproduced for your reference:
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 2[***] 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 any employee employed below the ground in a mine or in an establish-ment 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.
3[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 twelve weeks.]
(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.]
As per the above definition when an employee completes 4 years and 240 days (one year of continuous service) in fifth year, he becomes eligible for gratuity. This is the funda which is clarified by Courts in various judgements cited by worthy members in the post. Hope this clarifies the position of the act.
From India, New Delhi
Dear All,
This is very simple - If an employer wanted to pay him the gratuity then all the references in favour could be used. On the contrary if they wanted to deny can do so. This is per se willing or not willing only. Even the S.C. did not stay the 4yr.+ 240 days norms. We R not in T.N. stillm We had in our co. used this norm for several cases and settled. No one should prevent those who R willing. Every good thing is there for using them for the good of others. Pessimist vs. optimist case
kumar.s.
From India, Bangalore
This is very simple - If an employer wanted to pay him the gratuity then all the references in favour could be used. On the contrary if they wanted to deny can do so. This is per se willing or not willing only. Even the S.C. did not stay the 4yr.+ 240 days norms. We R not in T.N. stillm We had in our co. used this norm for several cases and settled. No one should prevent those who R willing. Every good thing is there for using them for the good of others. Pessimist vs. optimist case
kumar.s.
From India, Bangalore
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