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Amit N (Senior Consultant)     26 April 2010

Service Period Definition for Gratuity

I was working with a company at middle management level for total 5 yrs and 7.5months (period from the date of joining to the last day of working). Of this tenure, initial six months was the 'probation period' and the last two months were served as notice period.

Please help me clarify:

A. Is the probation period considered as a part of the service (considered for payment of gratuity)

B. Is the served notice period considered as a part of the service (considered for payment of gratuity)

C. Considering this case, am I be eligible for payment of Gratuity?

Thanks

Amit



Learning

 9 Replies

Reetu Dwivedi (Paralegal)     27 April 2010

Hi Amit

Answers of your query is as follows-

A) A)   Yes, the probation period will also be included for payment of gratuity. Section 2(e) of Gratuity Act Says  "employee" means any person (other than an apprentice) employed on wages, in any establishments all the staff are eligible for gratuity with minimum of  5 years of service.

The Payment of gratuity act speaks about continuous service of 5 years. It further clarifies the days to be included where a person is not in continuous service. Please be clear that gratuity will be calculated from the date a person has joined his service and not from the date of confirmation .

B) yes the served notice prtiod will be considered as part of your service.

C) Considring your matter your are eligible for gratuity.

Regards,

Surya

1 Like

Amit N (Senior Consultant)     27 April 2010

Thanks a lot Surya!

manickam.r.n (general manager)     19 June 2010

I worked for three employers for 4,2 and 27 years respectively.  I am not covered under Gratuity Act. Now for Tax-exemption purpose, am I elegible for 16.5 months salary (average of last 10 months) ? I have not received any Gratuity from previous employers. 

padma (executive)     28 December 2013

i have 5 yrs 2 months service in corporate company today i resinging my job with 30 days notice period, but hr telling that one year is a probation period so i am not elligible for gratuity, i need advice pls help me  to get gratuity.

 

padma

 

Kumar Doab (FIN)     28 December 2013

@ Padma,

 

This is  3 years old thread.

 

Always initiate a new thread.

 

This thread must have answered your query.

Your query is also addressed in the thread initiated by you at: :

 

https://www.lawyersclubindia.com/experts/Probation-period-is-eligible-or-not-for-gratuity-444171.asp#.Ur6uedIW1MA

satya mallepudi   19 May 2018

Sir, my case also same.

If HR refused to pay gratuity, how we can proceed further...

I have completed 5 years 9 months service including one year probationary period, i had workd as engineer trainee while i was in probation.

 

please advice.

Satya

Kumar Doab (FIN)     22 June 2018

Refer to your query;

Probation period, notice period, off days, holidays….. are counted in service….

You may go thru; Article under my profile;

Off days, holidays are counted in service period for the Payment of Gratuity !

Kumar Doab (FIN)     22 June 2018

 

What is Engineer Trainee?

Were you taken on board as ‘Apprentice’ as per Apprenticeship Act/Rules?

Is this HR personnel designated as authorized person to decline payment of gratuity?

 

You may carefully go thru; Payment of Gratuity Act,1972; 1, 2,2A,4,7,9 https://www.labour.nic.in/sites/default/files/ThePaymentofGratuityAct1972.pdf

 

and check if your establishment is covered ( as per number of employees) and you are eligible..

You may also go thru simple to understand:

THE PAYMENT OF GRATUITY (CENTRAL) RULES, 1972 https://labour.gov.in/sites/default/files/ThePaymentofGratuityRules.pdf

 and simple to understand Rules by your state e.g;

The Payment of Gratuity (Maharashtra) Rules, 1972

https://www.esipf.com/labour-law/the%20gratuity%20act.pdf

Kumar Doab (FIN)     22 June 2018

Employee (e.g; You) should consult and take help of elders in the family, competent and experienced well wishers, seasoned employees/trade union leaders, a very able senior LOCAL counsel of unshakable repute and integrity specializing in Labor/service   matters and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..and show the case related docs etc etc for a considered opinion to handle any situation…properly.

With time and experience majority of the employee become properly informed and are able to handle the matters with their own knowledge and skills; persuasion, persistence, negotiation, reasoning…

 

Perspectives;

Employer can pay Gratuity on LWD with FnF.. Employee can submit letter to pay Gratuity 30days before LWD.. Still; You are closest to the facts and nature of establishment and bosses and HR personnel you are working with………. And may keep copy of notice of resignation (also POD), and get offer letter, appointment letter, salary slips of all months, PF number and a/c slips of all years, ESIC card, correct FnF statement, Form 16 as per correct FnF statement, acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC……………  

 

After relieving submit letter under proper acknowledgment stating that ‘Notice of Determination of Gratuity’ {that should contain DOJ-LWD, (Basic +DA) as per last drawn salary, NO. of years in service}, Gratuity payment, requisite forms are not supplied and may be supplied…

 

 

The employer is under obligation to reply and agree to pay or decline to pay citing reason.

Gratuity= {(Basic+DA)/26*15*No. of years in service}

(Basic +DA) as per last drawn salary,

In your case No. of years for calculation is  6 or 5..as per facts of your matter.

Thus even if 1Y is reduced (as per facts of your matter) you may still be eligible for payment of gratuity.

 

 

If employer does not pay within 30days from LWD IT has to tender interest @10%pa… You can very well take help of….. as suggested above.

If nothing works then you may have to approach Controlling Authority of Gratuity (and may not the court) and submit FormI (legal  notice may not be required)........... 

Someone can also represent you as ‘Authorized representative’ as provided for in the Act…

 

 

 

 

 

 


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