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Mainuddin   15 December 2017

Grauity-eligiblity

Dear sir

I have worked in a Pvt. company for 4 years and 9 months.My joining Date is 29-11-2012 and reliving Date is 31-07-2017.I have registered a case with Labour officer,But my company has given in written to Labour Officer that our company is present in 2 states so this case should go to central labour department not to the State Labour Officer.And they have submitted  my attendance data in which they have taken my 1st year attendance is only 200 days(They have calculated it to 29-11-2012 to 31-07-2013 in a reverse manner) and as per Grauity U/s 4(1) read with sec.2-A I am not eligible for Grauity.Please kindly anybody suggest me Is Iam eligible or not,and what should I do now.

Thanks in Advance

Regards

Mainuddin.N.K.



Learning

 52 Replies

Kumar Doab (FIN)     15 December 2017

The establishment works for how many days/week; 6 or less than 6?

 

Kumar Doab (FIN)     15 December 2017

You may carefully go thru;

Payment of Gratuity Act,1972; 2,2A,7,9

https://www.labour.nic.in/sites/default/files/ThePaymentofGratuityAct1972.pdf

The appropriate government is explained. Appropriate govt then the authority is likely to pass order.

The approved leave, off days, holidays etc are all counted in period.

On Number of days/continuous service, the establishment seems to be wrong.

Kumar Doab (FIN)     15 December 2017

You must have received copy of reply of establishment.

Keep it carefully.
or obtain certified copy.

Ravindranath E.I.   16 December 2017

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

 

Ravindranath E.I.   16 December 2017

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

 

M.S.R.Murty ( Manager (Admn))     16 December 2017

Dear Sir,

You are eligible to get gratuity and state Labour Department have the right roll to deal the issue.     

Mainuddin   16 December 2017

Dear sir

Thanks a lot for you'r valuable reply,my company works for 6 Days in a Week.

Mainuddin   16 December 2017

6 Days/week

Mainuddin   16 December 2017

Dear all

I am happy to see the response i recived.Aand wish to share some more details,My company terminated me from my job without any written notice,and in my full service i have not given a single paid holiday.My company do not have my Resignation-Letter or termination letter.

 

with regards

Mainuddin.N.K.

9036120507

Kumar Doab (FIN)     16 December 2017

The Gratuity can be forfeited only and only as per provisions of the applicable enactment/rules

e.g;

Payment of Gratuity Act,1972; 4(6)

https://www.labour.nic.in/sites/default/files/ThePaymentofGratuityAct1972.pdf

that too after providing the opportunity of natural hearing and justice, domestic inquiry and after a speaking order has been passed.

In the query there is NO hint of forfeiture and misconduct as per the reply of establishment submitted to Controlling Authority, posted by querist.

Kumar Doab (FIN)     16 December 2017

The conduct of designated person of establishment that has to process and pay the Gratuity may amount to ‘Avoiding’ the payment of Gratuity…………and within purview of ‘Whoever’ as in Section;9 of the Act.

The employer and IT’s attorney’s in Line Management/HR/Personnel/Admin/Accounts/legal cells/Lawyers/Law firms are expected to know the law, statue, provisions, precedence’s, judgments and act accordance with obligations and liabilities of employer/establishment.

Payment of Gratuity Act,1972 is social security enactment and statue and self sufficient since IT provides clear guidelines and provisions in it say; Section;2,2A……………

The Act is dynamic and some sections in the Act have been inserted by amendments and the Act applies to establishment as per querist and reply to establishment submitted to Controlling Authority.

The 190/240days of service in a year has been inserted and explained in the Act and it shall apply per provisions of the Act. NO citation is required to claim the benefits.

There are citations that take care of 190 and 240days of service in the year of service.

Kumar Doab (FIN)     16 December 2017

Generically speaking; the calculation of designated person of establishment is wrong, since employee can be said to have worked for 08M02D.

It may take care of 240 days in a year if the establishment works for 6days/week.

The Act speaks of date of reference and preceding years in sections already posted.

So atleast on this count there is NO attempt in this post to find faults with designated person of establishment in his/her reply posted to Controlling Authority.  Of course his/her calculation seems to be wrong as already hinted above.

It is felt that employee is eligible.

Kumar Doab (FIN)     16 December 2017

Regarding all objections raised in by designated person of establishment in his/her reply posted to Controlling Authority e.g;

-Appropriate Government; the ALC/ Controlling Authority can decide and narrate the reasons in the order.

- No. of days =200 ( as per designated person of establishment ) the ALC/ Controlling Authority can decide and narrate the reasons in the order and even may not decide it, since the objection of jurisdiction/appropriate government has been raised and it may be decided 1st.

 

However as posted by querist; The designated person of establishment has posted the attendance of querist/employee=200………………

Here the employee marks attendance for the days employee attends office i.e work days and not on off days, weekly off days, holidays, approved leave, approved leave on LOP etc etc ………………….

The catch seems to be in attendance and Appropriate Government (ALC/ Controlling Authority) may pierce the veil/lift the veil and decide the matter, per previsions of the enactment that is a statue.

Kumar Doab (FIN)     16 December 2017

 

The querist may agitate before the ALC/ Controlling Authority on full facts, details, and merits that are known to querist and his counsels/lawyers/law firms/employee’s-trade union leaders/authorized person representing him.

In the meantime querist/employee may also, carefully go thru;

THE PAYMENT OF GRATUITY (CENTRAL) RULES, 1972

https://labour.gov.in/sites/default/files/ThePaymentofGratuityRules.pdf

I have already responded to the query/previous posts for the querist.


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