Hello,
I joined an Organization in 2010 and was confirmed in 2011, In 2012 I got an opportunity from a new employer so I resigned from my position, however Co. management decided to retain me by paying me a competitive salary but termed it as “New employment contract”, however there was no paperwork done for the same and I was just given an appraisal letter at that time
1) My Resignation was not accepted at that time.
2) I was asked to revoke my resignation.
3) There was no break in service.
4) There was no break in salary payout.
5) FNF was not done at that time
6) The top management remained the same through 2010 till 2016
I continued to work with the organisation till 2016, when I finally resigned and FNF was done (without payment of gratuity), now when I am claiming the gratuity they are saying that I am not eligible for it as I was re-hired.
Could you please tell me if I am eligible for Gratuity, also will “New employment” contact be termed as break in service, even though I worked with the same organisation for 6 continuous years
Thanks,
Nikhil Gupta
From India, Delhi
I joined an Organization in 2010 and was confirmed in 2011, In 2012 I got an opportunity from a new employer so I resigned from my position, however Co. management decided to retain me by paying me a competitive salary but termed it as “New employment contract”, however there was no paperwork done for the same and I was just given an appraisal letter at that time
1) My Resignation was not accepted at that time.
2) I was asked to revoke my resignation.
3) There was no break in service.
4) There was no break in salary payout.
5) FNF was not done at that time
6) The top management remained the same through 2010 till 2016
I continued to work with the organisation till 2016, when I finally resigned and FNF was done (without payment of gratuity), now when I am claiming the gratuity they are saying that I am not eligible for it as I was re-hired.
Could you please tell me if I am eligible for Gratuity, also will “New employment” contact be termed as break in service, even though I worked with the same organisation for 6 continuous years
Thanks,
Nikhil Gupta
From India, Delhi
Dear Nikhil,
What is discernible to me from your post is that in no way the so called " New Employment Contract " has altered or affected your continuity of service under the same employer. Therefore, your entitlement to gratuity commences from the date of your initial appointment in the establishment and it remains unaffected despite the subsequent new contract which actually modified only one of the service conditions viz., compensation package that too as a bait to retain your services in the same employer's interest. You can make a successful claim for gratuity for your entire service.
From India, Salem
6018What is discernible to me from your post is that in no way the so called " New Employment Contract " has altered or affected your continuity of service under the same employer. Therefore, your entitlement to gratuity commences from the date of your initial appointment in the establishment and it remains unaffected despite the subsequent new contract which actually modified only one of the service conditions viz., compensation package that too as a bait to retain your services in the same employer's interest. You can make a successful claim for gratuity for your entire service.
From India, Salem
Umakanthan53,
Thank you for your valuable comment on this post, could you please explain what constitute "continuity of service" or "continuous Service" as per gratuity Act, As its difficult to interpret and comprehend.
Also Suppose we say there was actually a "New Employment Contract" in my case, does that break my Continuous Service to the organization.
in the light of above scenario few facts along with the facts stated above
1) Employ ID remained same
2) PPF Account remained same
Thanks, Regards
Nikhil Gupta
From India, Delhi
Thank you for your valuable comment on this post, could you please explain what constitute "continuity of service" or "continuous Service" as per gratuity Act, As its difficult to interpret and comprehend.
Also Suppose we say there was actually a "New Employment Contract" in my case, does that break my Continuous Service to the organization.
in the light of above scenario few facts along with the facts stated above
1) Employ ID remained same
2) PPF Account remained same
Thanks, Regards
Nikhil Gupta
From India, Delhi
2002010,2011,2012,2013,2014,2015 ( atleast 5 years) must have worked as per attendance records and salary payment records for more than 240 days every year
From India, Coimbatore
From India, Coimbatore
As the ACL (Retd), Sri Umakanthan Sir told, you are very well entitled to Gratuity Payment as per Act, as there was no break in service according to your data given in points 1 to 6. You may try to make claim Gratuity in Form "I" and while you calculating the Gratuity payment you can take last drawn wages into account comprising the salary components of Basic + DA or the Consolidated Salary as the case may be alone. Wait for some time. When there is no response from them, you may file a complaint petition before the Controlling Authority under PG Act in the Labour Department of the jurisdiction of your employer, for getting suitable remedy, Regards,
From India, Mumbai
From India, Mumbai
Dear all. Please read definition of continuous service under the act. An employee who completes 190 days service in 5-day-week org & 240 days in 6-day-week org completes one year of service.
From India, Mumbai
From India, Mumbai
Dear Nikhil,
The term " continuous service " is defined in sec.2-A of the Payment of Gratuity Act,1972 and not the term " continuity of service". Hence we have to interpret the latter term in its literal sense only which in my opinion and in the context of employment would mean the possibility of considering an employee's service as continuous from his entry into service till his exit at a stretch..
Continuous service of an employee refers to the length of service over a period which includes the days he actually worked and the days of his absence which are to be notionally treated as worked days.
Continuity of service, on the contrary, is the factum of the subsistence of the contract of employment in a consecutive manner from initial appointment to termination despite the material changes or modifications in its terms. Here, in your case, the employer hiked your salary on his own in order to retain you in service. How, can this be a new contract so as to nullify the service rendered before? This is only an attempt to discourage you from filing a statutory claim for gratuity. So, don't be baffled by such blabbering of your employer.
From India, Salem
The term " continuous service " is defined in sec.2-A of the Payment of Gratuity Act,1972 and not the term " continuity of service". Hence we have to interpret the latter term in its literal sense only which in my opinion and in the context of employment would mean the possibility of considering an employee's service as continuous from his entry into service till his exit at a stretch..
Continuous service of an employee refers to the length of service over a period which includes the days he actually worked and the days of his absence which are to be notionally treated as worked days.
Continuity of service, on the contrary, is the factum of the subsistence of the contract of employment in a consecutive manner from initial appointment to termination despite the material changes or modifications in its terms. Here, in your case, the employer hiked your salary on his own in order to retain you in service. How, can this be a new contract so as to nullify the service rendered before? This is only an attempt to discourage you from filing a statutory claim for gratuity. So, don't be baffled by such blabbering of your employer.
From India, Salem
Hello All,
Thank you to UMAKANTHAN53 Sir, SHRIKANT_PRA Sir, SRIDHARAN VENKATARAMAN Sir & RAJANVICTORINDIA for giving your valuable time and effort to respond to my query.
You response have given me a confidence boost to take appropriate decision/Action in this regards.
Once again Thank you very much.. your guidance and opinion is much appreciated.
Thanks, Regards
Nikhil Gupta
From India, Delhi
Thank you to UMAKANTHAN53 Sir, SHRIKANT_PRA Sir, SRIDHARAN VENKATARAMAN Sir & RAJANVICTORINDIA for giving your valuable time and effort to respond to my query.
You response have given me a confidence boost to take appropriate decision/Action in this regards.
Once again Thank you very much.. your guidance and opinion is much appreciated.
Thanks, Regards
Nikhil Gupta
From India, Delhi
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
Kami Export - Negative Covenant in Contract of Employment.pdf (1).pdf