As per the Gratuity Act, an employee who ceases to be an employee qualifies for Gratuity on completion of 5 years of Continous and uninterrupted services. Unless he or she has committed and had been convicted of having committed misconduct of a grave nature involveing Moral Tupitude Gratuity cannot be forfieted at all.
Having said, this, the question of 5 years of continuous and uninterrupted service has been dealt with the Madras High Court in an elaborate judgement. In this judgement, a person who has not technically completed, whole of 5 years of service from his/her joining, but had even worked for 240 days in the fifth and final year qualifies to receive gratuity, counting first 4 years as full years and the last year in which he/ she had put in 240 days of attendance & working being counted as one year.
Eligibility under gratuity act as well as in other labour laws, 240 days of working alone qualifies a person to be an Employee/ Workmen for certain specific Rights. Hence, relying on this criticial condition, the Madras high court had held that even if a person had completed 240 days of working (having earned wages/ salary for 240 days) in the fifth would otherwise qualify for gratuity, taking it to be the 5th year, though in the fifth year he / she might not have been on rolls for the whole of 365 days.
Now coming to the question of the specific reference, whether counting forward or backward, the person has completed 4 full years of service and as indicated in the post 200 days in the Fifth year. As the requirement of fulfilment of 240 days of woking (having earned wages including of course, weekly off and holidays with paid wages/ salaries), had notapparently been fulfilled as stated, the individual does not qualify for payment of Gratuity by the Employer.
Ravindranath
Senior HR Proffessional & leading HR/IR Consultant
99400600382/ 9842306733 - eirvalsa@yahoo.com
