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TeenaTanna (ITSM Consultant)     14 February 2011

Training Period considered under Gratuity Eligibility?

Hi,

I would like to know whether training period is considered while calculating eligibility for Gratuity?

Also, whether the number of days for 5th yr should be 190 days or 240 days if the organization follows 5 days a week policy?

Brief details:

On Job Training - 16th Nov, 05 to 15th May, 06 (6 mths)

Confirmed Employee - 16th May, 06 to 22nd Dec, 2010 (4 yrs and 221 days as per my calculation)

Someone please confirm whether am I eligible for Gratuity. Is there any clause where I can claim for Gratuity?

Regards,,,,,



Learning

 14 Replies

SALA SATEESH (lawyer)     14 February 2011

Dear Madam,

yours case is fit for elgibility of claim for gratuity. the day counts from day of joning and date of releving from the services.

as per the enactment if your are in continuous employment with a organisation you are eligible for gratuity.

Regards,

S.Sateesh

TeenaTanna (ITSM Consultant)     14 February 2011

Dear Mr. Sateesh,

Thanks for your response.

Hpwever, my previous employer is denying this. They mentioned stating that the training period is an apprenticeship and thus does not form part of completion of required eligibility.

Any views?

Regards,

Teena

Praveen Kumar Pandey (Company Secretary)     14 February 2011

Meaning of Employee under the Payment of Gratuity Act

 

Section: 2

 (e) "employee" means any person (other than an apprentice) employed on wages, [3] [***] in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, [4] [and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity].

Meaning of Continuous Service

 

Section: 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 Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicab1c 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.

 

Hence you are eligible for Gratuity, i your case if thereis 5 day a week system 190 days will be counted.

As for as Apprentice ship is concerned check with Apperenticeship Act that whether you were apperentice or not within the meaning of the Act, otherwise that period will also be counted.


TeenaTanna (ITSM Consultant)     14 February 2011

Dear Mr. Praveen,

Just observed one cruck in the highlighted statement. It states in an establishment which works for less than six days in a week;.

My previous organization functions 24*7, 365 round the clock. However, my service was officially 5 days a week.

Please suggest.

 

Regards,

Teena

Praveen Kumar Pandey (Company Secretary)     14 February 2011

If your 5days of working was counted as one week working this cluase applies to you. two weekly offs in a week was there then what is problme? You have to see what was your responsibility, would you want to say 240 days means 24*365*240?

Mallik Karra (Done with AIBE)     14 February 2011

Training period is not covered to be eligible for gratuity.... and 190 days is what is applicable to you.....

TeenaTanna (ITSM Consultant)     15 February 2011

Thanks People...Let me take this ahead with my previous employer...

Will keep u posted.

Praveen Kumar Pandey (Company Secretary)     15 February 2011

Check Apperenticeship Act also, because this act is applicable to limited trades of engineering other important thing is apperentice must be regisred with appropriate government.

Ramesh (Project Engineer)     19 February 2012

Seek guidance!!!

 

I am working with MNC since sept 2006. There was training period for initial 1 year and then 1 yr of probation period. Now i have completed 5 years and 5 months.

I wanted to know whether the training period will be counted for calculation of gratuity?....(continos service of minimum 5 years)

 

My PF deduction started right from the date of joining. Please advoice.

 

Thanks in advance.

Kumar Doab (FIN)     19 February 2012

Learned Mr. Pandey has given valuable advice.

If employees are not apprentices engaged as per Apprentice Act, 1961, they will be covered by ESI and EPF. If company has a certified Standing Order providing for engaging trainees, they may be excluded from EPF, but are to be included for ESI.

In your case Company has been deducting EPF implying company must have registered you for EPF and must have issued PF number. This implies you (a trainee if at all you were a trainee) were not an apprentice as covered under Apprentice Act, 1961.

All employees are eligible for PF provided the works they do are of persistent nature.

Company should keep in mind that all the trainees have submitted proper docs. i.e. recommendation from the institute for training of that candidate for a fixed tenure and similarly the application from the candidate himself for the training requirement

 

Moreover you can obtain copy of certified standing order of the company and from website/HR/Personnel and which are to be displayed at the gate.

 

As already pointed out by Mr. Pandy “apprentice must be registered with appropriate government.” Has the company registered you with respective state Govt?

Ramesh (Project Engineer)     19 February 2012

Thanks for your valuable feedback.

 

But I am looking for your opinion whether I am will be eligible for gratuity?

Kumar Doab (FIN)     20 February 2012

If you look at flow of info in the post apparently you are.

It shall be appropriate for you:

-to obtain copy of certified standing orders of the comapny.

-check your terms of appointment and confirm you were an apprentice or not.

-confirm did you submit any document to company during recruitment for training for a fixed tenure and similarly the application by yourself for the training requirement.

Accordingly you may apply to good offices of the company including appointing authority, MD, Head-HR and ask for the payment of gratuity or reasons for declining the disbursement in writing by letter so as to be supplied to you say within 7 days and may mention that a postage prepaid self addressed envelope for reply by redg/speed post is enclosed. If the company becomes rigid and reply is not supplied you may stake claim by approaching o/o Statutory Authority and submitting prescribed forms.

Kirti Kar Tripathi (lawyer)     21 February 2012

If establishment observe five days week, in that establishment 206 days will be counted as 240 days.

Kumar Doab (FIN)     22 February 2012

@ TeenaTanna, Ramesh,

Kindly look into the attachment.

1.2.2 I Note:

Note. The training period put in by Graduate Engineer/Officer/

Management Trainees before their placement in Grade 'A' shall be

considered towards payment of Gratuity. Period of service as

Apprentice shall not count towards service for the purpose of

gratuity.”

 

IOC has also declared at 1.1:

“The Payment of Gratuity Act, 1972 is applicable to all the employees of the

Corporation. However the employees may opt for benefits under the said

Act or the IOC Employees' Gratuity Rules, whichever is more beneficial.”

Kindly look into the attachment.


Attached File : 521513235 ioc gratuity 18082008.pdf downloaded: 277 times

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