Hello,
I joined an Organization in 2010 and was confirmed in 2011, In 2012 I got an opportunity from a new employer so I resigned from my position, however Co. management decided to retain me by paying me a competitive salary but termed it as “New employment contract”, however there was no paperwork done for the same and I was just given an appraisal letter at that time
1) My Resignation was not accepted at that time.
2) I was asked to revoke my resignation.
3) There was no break in service.
4) There was no break in salary payout.
5) FNF was not done at that time
6) The top management remained the same through 2010 till 2016
I continued to work with the organisation till 2016, when I finally resigned and FNF was done (without payment of gratuity), now when I am claiming the gratuity they are saying that I am not eligible for it as I was re-hired.
Could you please tell me if I am eligible for Gratuity, also will “New employment” contact be termed as break in service, even though I worked with the same organisation for 6 continuous years
Thanks,
Nikhil Gupta
From India, Delhi
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I joined an Organization in 2010 and was confirmed in 2011, In 2012 I got an opportunity from a new employer so I resigned from my position, however Co. management decided to retain me by paying me a competitive salary but termed it as “New employment contract”, however there was no paperwork done for the same and I was just given an appraisal letter at that time
1) My Resignation was not accepted at that time.
2) I was asked to revoke my resignation.
3) There was no break in service.
4) There was no break in salary payout.
5) FNF was not done at that time
6) The top management remained the same through 2010 till 2016
I continued to work with the organisation till 2016, when I finally resigned and FNF was done (without payment of gratuity), now when I am claiming the gratuity they are saying that I am not eligible for it as I was re-hired.
Could you please tell me if I am eligible for Gratuity, also will “New employment” contact be termed as break in service, even though I worked with the same organisation for 6 continuous years
Thanks,
Nikhil Gupta
From India, Delhi
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Dear Nikhil,
What is discernible to me from your post is that in no way has the so-called "New Employment Contract" altered or affected your continuity of service under the same employer. Therefore, your entitlement to gratuity commences from the date of your initial appointment in the establishment, and it remains unaffected despite the subsequent new contract which actually modified only one of the service conditions, namely the compensation package. This modification was made as a bait to retain your services in the same employer's interest. You can make a successful claim for gratuity for your entire service.
From India, Salem
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6108What is discernible to me from your post is that in no way has the so-called "New Employment Contract" altered or affected your continuity of service under the same employer. Therefore, your entitlement to gratuity commences from the date of your initial appointment in the establishment, and it remains unaffected despite the subsequent new contract which actually modified only one of the service conditions, namely the compensation package. This modification was made as a bait to retain your services in the same employer's interest. You can make a successful claim for gratuity for your entire service.
From India, Salem
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Umakanthan53,
Thank you for your valuable comment on this post. Could you please explain what constitutes "continuity of service" or "continuous service" as per the Gratuity Act? It is difficult to interpret and comprehend.
Also, suppose we say there was actually a "New Employment Contract" in my case, does that break my Continuous Service to the organization.
In the light of the above scenario, a few facts along with the facts stated above:
1) Employee ID remained the same.
2) PPF Account remained the same.
Thanks, Regards
Nikhil Gupta
From India, Delhi
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Thank you for your valuable comment on this post. Could you please explain what constitutes "continuity of service" or "continuous service" as per the Gratuity Act? It is difficult to interpret and comprehend.
Also, suppose we say there was actually a "New Employment Contract" in my case, does that break my Continuous Service to the organization.
In the light of the above scenario, a few facts along with the facts stated above:
1) Employee ID remained the same.
2) PPF Account remained the same.
Thanks, Regards
Nikhil Gupta
From India, Delhi
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2002010,2011,2012,2013,2014,2015 ( atleast 5 years) must have worked as per attendance records and salary payment records for more than 240 days every year
From India, Coimbatore
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From India, Coimbatore
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As the ACL (Retd), Sri Umakanthan Sir mentioned, you are very well entitled to Gratuity Payment as per the Act, as there was no break in service according to the data provided in points 1 to 6. You may proceed to claim Gratuity in Form "I". When calculating the Gratuity payment, you can consider the last drawn wages, which include the salary components of Basic + DA or the Consolidated Salary, as the case may be.
Wait for some time. If there is no response from them, you may file a complaint petition before the Controlling Authority under the PG Act in the Labour Department of the jurisdiction of your employer to seek a suitable remedy.
Regards,
From India, Mumbai
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Wait for some time. If there is no response from them, you may file a complaint petition before the Controlling Authority under the PG Act in the Labour Department of the jurisdiction of your employer to seek a suitable remedy.
Regards,
From India, Mumbai
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Dear all. Please read definition of continuous service under the act. An employee who completes 190 days service in 5-day-week org & 240 days in 6-day-week org completes one year of service.
From India, Mumbai
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From India, Mumbai
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Dear Nikhil,
The term "continuous service" is defined in sec. 2-A of the Payment of Gratuity Act, 1972 and not the term "continuity of service". Hence, we have to interpret the latter term in its literal sense only. In my opinion and in the context of employment, it would mean the possibility of considering an employee's service as continuous from his entry into service till his exit at a stretch.
Continuous service of an employee refers to the length of service over a period which includes the days he actually worked and the days of his absence which are to be notionally treated as worked days.
Continuity of service, on the contrary, is the factum of the subsistence of the contract of employment in a consecutive manner from initial appointment to termination despite the material changes or modifications in its terms. In your case, the employer hiked your salary on his own in order to retain you in service. How can this be a new contract so as to nullify the service rendered before? This is only an attempt to discourage you from filing a statutory claim for gratuity. So, don't be baffled by such blabbering of your employer.
From India, Salem
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The term "continuous service" is defined in sec. 2-A of the Payment of Gratuity Act, 1972 and not the term "continuity of service". Hence, we have to interpret the latter term in its literal sense only. In my opinion and in the context of employment, it would mean the possibility of considering an employee's service as continuous from his entry into service till his exit at a stretch.
Continuous service of an employee refers to the length of service over a period which includes the days he actually worked and the days of his absence which are to be notionally treated as worked days.
Continuity of service, on the contrary, is the factum of the subsistence of the contract of employment in a consecutive manner from initial appointment to termination despite the material changes or modifications in its terms. In your case, the employer hiked your salary on his own in order to retain you in service. How can this be a new contract so as to nullify the service rendered before? This is only an attempt to discourage you from filing a statutory claim for gratuity. So, don't be baffled by such blabbering of your employer.
From India, Salem
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Hello All,
Thank you to UMAKANTHAN53, SHRIKANT_PRA, SRIDHARAN VENKATARAMAN, and RAJANVICTORINDIA for giving your valuable time and effort to respond to my query. Your responses have given me a confidence boost to take appropriate action in this regard. Once again, thank you very much. Your guidance and opinion are much appreciated.
Thanks,
Regards
Nikhil Gupta
From India, Delhi
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Thank you to UMAKANTHAN53, SHRIKANT_PRA, SRIDHARAN VENKATARAMAN, and RAJANVICTORINDIA for giving your valuable time and effort to respond to my query. Your responses have given me a confidence boost to take appropriate action in this regard. Once again, thank you very much. Your guidance and opinion are much appreciated.
Thanks,
Regards
Nikhil Gupta
From India, Delhi
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Gratuity-Contin uous Service-countin g broken period with same employer-Madras HC Judgment.docx
Less than 5 years service - Eligibility for payment of gratuity.pdf