Gratuity
Soumya
(Querist) 12 August 2013
This query is : Resolved
Sir/Madam,
I worked in a private software company for 6.3 years from 2nd Feb 2007 to April 31st 2013. In between I have been on maternity leave which I asked from july 1st 2011 to Jan 2012. They agreed for it and said only 2 months of maternity leave with pay they will provide, rest will be loss of pay.In middle of leave they also took conformation from me that i will be back on jan 2nd 2012. then I joined back on same date and continued till april 2013. Now when i ask my gratuity my company COO say in one of her sms to me "your employment of 5 years has broken as your maternity leave was 2 months that we paid and after that we discotinued as your joining date was not sure and we list AP position that you were working on. so gratuity may not be applicable".
AP was our client n i worked for their project.
wanted to know about my gratuity applicable as she is delaying on name on law, please help
Guest
(Expert) 12 August 2013
Your service being more than 5 years, you are legally eligible to claim gratuity. Maternity Leave is also part of your service. They cannot deny as per law. Moreover, they seem to have violated even the law on maternity benefits merely for two months, as against the provisions of law. Send your claim on prescribed proforma through registered post or speed post. Let them deny in writing. SMS of denial has no relevance if you have formally applied for gratuity.
Kuummaar AS
(Expert) 12 August 2013
Please refer to Section 2A of the The Payment of Gratuity Act, 1972, quoted below, wherein reference of maternity leave is there in Explanation at point (iv) under sub-section 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 treating the absence as break in service has been passed in accordance with the standing order, 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;
Explanation : For the purpose 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 Order's) 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.
Rajendra K Goyal
(Expert) 12 August 2013
Entitled for Gratuity under the act. Well advised by the experts, claim for Gratuity and the maternity leave as per law / rules needs to be submitted.
