Civil Procedure Code (CPC)

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pankaj   18 July 2021

Transfer from one company to its mother company

Dear All,

Hi i am new to this forum; I have never thought of writing such thing but this is a concern from my end, I have joined a company in 23rd July 2016 and than I was transferred to its mother company on 1st Jan 2021 and my last day of working was 12th may 2021, i.e, in total I have served 4 years 9 months 20 days after my all formalities done, I have asked them for my gratuity amount to be released & now I have got a mail from HR saying that I am not eligible to get the gratuity as my tenure is less than 5 years. its a humble request to all who know this LAW and the company politics kindly enlighten me on this Gratuity ACT. and tell me whether I can claim my gratuity from my company? 



 5 Replies

kavksatyanarayana (subregistrar/supdt.(retired))     18 July 2021

You are eligible for gratuity as you have completed 4 years and 240 days of service as per Gratuity Act, 1972.

1 Like

Doveson (advocate)     19 July 2021

technically they are right. the new gratuity law which is yet to be enacted prescribes a minimum period of one year only. however, for the time being, its the old act which applies. see if there is any state specific amendment in your state. 

Dr J C Vashista (Lawyer)     19 July 2021

I endorse the opinion and advise of expert Mr. Kavksatyanarayana, you are eligible for gratuity in terms of section 4(2) of the Payment of Gratuity Act, 1972  

G.L.N. Prasad (Retired employee.)     19 July 2021

Please search for such judgments if any in google, and let an advocate issue a notice with those citations to the designated gratuity officer.  What is this mother company and other companies?  Are they not under the same group, as any serious action may irritate the group HR.  Show them such citations and avoid confrontation and only as a last resort issue for such notice claiming Gratuity amount with interest.

P. Venu (Advocate)     21 July 2021

To be eligible for gratuity under the Gratuity Act, an employee needs to have at least five full years of service with the current employer, except in the event that an employee passes away or is rendered disabled due to accident or illness, in which case gratuity must be paid.

Section 4 of the payment of Gratuity Act provides as follows -

"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:  ..............................."

However, Kerala and madras High Court have, based on the provisions of Section 2A(2)(a)(ii), have held that service  of 240 days during the fifth year renders the employee eligible for gratuity. However, in the absence of conclusive ruling by the Supreme Court, many an employer in other States are not abiding by this ratio. Section 2A reads as follows -

 

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 2*** treating the absence as break in service has been passed in accordance with the standing orders, 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.


3[Explanation.-- For the purposes 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 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 4such period as may be notified by the Central Government from time to time


(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.

Anyhow, you may  escalate the issue based on the ratio laid down by the Kerala and Madras High Courts.



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