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Gratuity

(Querist) 12 March 2018 This query is : Resolved 
Hi ,

i have completed 4 year , 7 month & 15 days in my previous job after serving notice period , i have resigned .

Pls confirm as i eligible for gratuity or not and can i claim it or not.
Guest (Expert) 12 March 2018
Not eligible.
.....................
J.D.S Sareen (Expert) 12 March 2018
Payment of Gratuity Act, 1972
Section: 4
Payment of gratuity.
(1) Gratuity shall be payable to an employee on the termination of his
employment after he has rendered continuous service for not less than five
years, -
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
Provided that the completion of continuous service of five years shall not be
necessary where the termination of the employment of any employee is due
to death or disablement:

TAKE SECOND ADVICE
R.Ramachandran (Expert) 12 March 2018
@Mr. J.D.S. Sareen: Whether yours is the First Advice?
J.D.S Sareen (Expert) 12 March 2018
YES, BUT IS ALWAYS BETTER TO GET A SECOND ADVICE FROM A ADVOCATE BY MEETING HIM PERSONALLY, WHO PRACTICE IN LABOUR LAW AND DEALS WITH SERVICE MATTER,AS HE WILL BE THE BEST PERSON TO ADVICE YOU ON YOUR PROBLEM,BECAUSE YOU WILL ABLE TO DISCLOSE THE FACTS OF YOUR CASE TO HIM MORE PRECISELY . MORE OVER YOU MAY YOUR SELF GO THROUGH THE Payment of Gratuity Act, 1972,AVAILABLE ON INTERNET.
R.Ramachandran (Expert) 12 March 2018
In fact you have not expressed any view / advice whatsoever.
You only quoted Section 4 of the Payment of Gratuity Act.
According to Section 4 of the Payment of Gratuity Act quoted by you above, an employee who has not put in 5 years continuous service is not entitled for gratuity.
Mr. Jigyasu has very rightly expressed his views.
J.D.S Sareen (Expert) 13 March 2018
Dear sir,it most humbly stated that I can only guide you. You must consult an advocate of your area,who could help you further in the matter. you may also go through the Act.Must take second opinion directly from an advocate.
Guest (Expert) 13 March 2018
Mr. JDS Sareen,
Mr. Ramachandran, on whose question you have responded, is a well experienced lawyer on service laws. He does not seem to have intended seeking any guidance from you on the topic in question, which he knows well. Rather, his intention seemed to be to point out that a layman has the need to be guided in layman's language only, not by copy & pasting of the section of law. The question of the querist was to seek just a bit of general information in nut shell, not to read the complicated language of law.
Ms.Usha Kapoor (Expert) 13 March 2018
iF THE FOLLOWING CONDITIONS ARE MET AN EMPLOYEE NEED NOT COMPLETE 5 YEARS CONTINUOUS SERVICE IN ORDER TO CLAIM GRATUITY. iN THE PRECEDING 12 MONTHS OF HIS TERMINATION OR LEAVING THEORGANIZATION IF HE COMLETES 190 DAYS OF CONTINUOUS SERVICE ITIS ENOUGH TO CLAIM GRATUITY. NOW LET US SEE WHAT ARE THOSE CONDITIONS.
Gratuity not Required complete 5 years as a continuous SERVICE.

By virtue of the judgment of Supreme Court rendered under the provisions of the Industrial Dispute Act in Surendra Kumar Verma vs. Central Govt. Industrial Tribunal,[(1980) (4) S.C.C.433)],

It is enough that an employee has a service of 240 days in the preceding 12 months and it is not necessary that he should have completed one whole year’s service.

As the definition of continuous service in Industrial Dispute Act and Payment of Gratuity Act are synonymous, the same principal can be adopted under the act also and hence an employee rendering service of 4 year 10months 11days is considered to have completed 5 years continuous service under sec.4(2) and thereby is eligible for gratuity.

4 years and 6 months (190 days = 1 year) where the company follows 5 day a week
4 years and 8 months ( 240 days = 1 year) where the company follows 5 day a week is eligible for gratuity.

The payment of gratuity ( second amendment) act, 1984 clarifies this. One needs to calculate the no of years and service completion as follows.

A company which follows 5 day week

Doj 1.05.2000 -

01.05.2000 to 30.04.2001 - worked for 190 days = 1 year

If we go by the above formula and if the person does not have any break in service he will be eligible for gratuity on 01.11.2004

The gratuity will be paid based on date of joining and completion of years of service. It is not based on 4 yrs and 216 days. If the person crosses 5 years of service within that 216 days, then he need to be paid, i.e, based on the date of joining of an employee, the day when he completes 5 years of service, he will be eligible to get the gratuity. But whereas the calculation will be rounded off to the next higher or lower fraction after his 5 yrs completion. So no one will be eligible to get gratuity if he is not completed 5 years of service.
R.Ramachandran (Expert) 13 March 2018
@Ms. Usha Kapoor:
Can you in simple terms say whether the Querist who says that he has RESIGNED, after putting in 4 years, 7 months and 15 days service, is entitled to Gratuity or not?
J.D.S Sareen (Expert) 13 March 2018
Mr. Dhingra I am sorry if my reply has hurt your feeling in any manner, which I never intended to do. My intended reply was to Mr. Manoj Sharma so that he could get further and second advice from the local lawyer. I failed to note that it was Mr. Ramachandran, who was the second person to seek clarification. I personally advance my apology to him. I hope my explanation must have clarified the matter. If you still want I can call Mr. Ramachandran personally and explain.
Ms.Usha Kapoor (Expert) 13 March 2018
I''m, of the opinion that if he puts in 190 days wotrk in the preceding 12 months or 240 days if more than 4years 8 months work he has put in without break he is entitled to payment of gratuity. In the instant case he worked for 4 years 7 months 15 days he falls under 1st category he must have certainly worked for more than 4 years 6 months such as here he must have put in 190 days in the preceding 12 months without break he is eligible to claim gratuity. Our Querist is eligible to and has a right to claim gratuity.
Guest (Expert) 13 March 2018
Dear Mr. JDS Sareen,

It is sufficient, if a mistake is realised. I hope Mr. Ramachandran would also like to endorse my views.
R.Ramachandran (Expert) 13 March 2018
Dear Mr. Dhingra,
I agree with you.
Regards.
Guest (Expert) 13 March 2018
@ Mr. Ramachandran,
Good gesture.

Guest (Expert) 13 March 2018
Dear Shri Ramachandran,

Thanks for agreeing with me.


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