Hi Amit Roy,
I joined on 10th Aug 2011, and my last working day was 4th July 2016. I was short by 36 days to complete my 5 years. Am I eligible to claim gratuity? There was no break of service during my service period. Please help me with an appropriate section to substantiate the claim.
Thanks
From India, Ranaghat
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I joined on 10th Aug 2011, and my last working day was 4th July 2016. I was short by 36 days to complete my 5 years. Am I eligible to claim gratuity? There was no break of service during my service period. Please help me with an appropriate section to substantiate the claim.
Thanks
From India, Ranaghat
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Your question is a debatable point. You are eligible for gratuity if you have completed 4 years and 240 days. However, the employer has the right to deny your claim. In that case, you should prefer to file a petition before the labour court and obtain orders for the claim on gratuity.
From India, New Delhi
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425From India, New Delhi
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Dear Amit Roy, You are eligible to get gratuity according to gratuity act. Even employer is denying the same please approach labour office along with relevant documents.
From United Arab Emirates, Dubai
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From United Arab Emirates, Dubai
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You are very much eligible to get the Gratuity, please fill the required form and submit within 30 days to the competent authority.
From India, Ahmadabad
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From India, Ahmadabad
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As per Section 4(1) of the Payment of Gratuity Act, 1972, gratuity shall be payable to an employee upon the termination of his employment after he has rendered continuous service for not less than 5 years:
i) on his superannuation
ii) on his retirement or resignation
iii) on his death or disablement due to accident or disease
Except for the above clauses, gratuity is payable in the case of death or disablement even if the employee has not completed 5 years of continuous service. Since you have not completed 5 years of continuous service, you are not eligible to receive the gratuity benefit.
If your employer has considered gratuity as a part of your CTC since the start of your service, there is a case law that may entitle you to receive the gratuity amount.
Regards.
From India, Bhopal
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i) on his superannuation
ii) on his retirement or resignation
iii) on his death or disablement due to accident or disease
Except for the above clauses, gratuity is payable in the case of death or disablement even if the employee has not completed 5 years of continuous service. Since you have not completed 5 years of continuous service, you are not eligible to receive the gratuity benefit.
If your employer has considered gratuity as a part of your CTC since the start of your service, there is a case law that may entitle you to receive the gratuity amount.
Regards.
From India, Bhopal
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Dear Royamitk, you have not mentioned the worked days of the 5th year in service, if it is 240 days or more in the 5th year, you are definitely eligible for the gratuity benefits.
From India, New Delhi
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From India, New Delhi
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There are many court judgments stating that if any employee has completed 4 years and 240 days, then the employee is eligible for gratuity. Please submit the requisite form to the competent authority immediately without further delay.
From India, Ahmadabad
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From India, Ahmadabad
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Dear Mr. Saji Would be glad if you would share reference of judgements where Gratuity is been paid on completion of 4 Yrs and 240 days. Regards.
From India, Bhopal
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From India, Bhopal
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As per the judgment of the Supreme Court an employee is eligible for gratuity if he has completed 4 years of continuous service and 240 days continuous working in 5th year. On the day when he completes his 240 days in the 5th year he will be eligible for gratuity.
The judgment of Supreme Court rendered under the provisions of the Industrial Dispute Act in Surendra Kumar Verma vs. Central Govt. Industrial Tribunal,[(1980) (4) S.C.C.433)], it is enough that an employee has a service of 240 days in the preceding 12 months and it is not necessary that he should have completed one whole year’s service. As the definition of continuous service in Industrial Dispute Act and Payment of Gratuity Act are synonymous, the same principal can be adopted under the act also and hence an employee rendering service of 4 year 240 days is considered to have completed 5 years continuous service under sec.4(2) and thereby is eligible for gratuity."
Now almost all organizations are paying gratuity if an employee has completed 4 years of continuous service and 240 days continuous working in 5th year
From India, Ahmadabad
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The judgment of Supreme Court rendered under the provisions of the Industrial Dispute Act in Surendra Kumar Verma vs. Central Govt. Industrial Tribunal,[(1980) (4) S.C.C.433)], it is enough that an employee has a service of 240 days in the preceding 12 months and it is not necessary that he should have completed one whole year’s service. As the definition of continuous service in Industrial Dispute Act and Payment of Gratuity Act are synonymous, the same principal can be adopted under the act also and hence an employee rendering service of 4 year 240 days is considered to have completed 5 years continuous service under sec.4(2) and thereby is eligible for gratuity."
Now almost all organizations are paying gratuity if an employee has completed 4 years of continuous service and 240 days continuous working in 5th year
From India, Ahmadabad
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The judgement delivered by the Madras High Court on the eligibility of gratuity is attached for the convenience of the queriest.
1998 LLR 1072
MADRAS HIGH COURT
Hon’ble Mr. S.M. Abdul Wahab J.
W.P. No. 21350f1987
Decided on 12.6.1996
MetturBeardseU Ltd. (represented by Its Personnel Manager), Madras
vs.
Regional Labour Commissioner (Central)
(Authority under Payment of Gratuity Act).
Madras & Others
PAYMENT OF GRATUITY ACT 1972- Sections 2(a), 2(b), 2(c), 2(e) and 2A -'Continuous service' - Qualifying period of service by an employee –Entitlement of Gratuity - An employee rendering continuous service for a period of 240 days in a year will be deemed to have continued in service for 'one year as stipulated by section 2A of the Act -Thus an employee who has Put in service for 10 months and 18 days for the fifth year subsequent to first 4 years should be deemed to have completed continuous s6rvice of five years -His claim for gratuity is tenable.
From India, Ahmadabad
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1998 LLR 1072
MADRAS HIGH COURT
Hon’ble Mr. S.M. Abdul Wahab J.
W.P. No. 21350f1987
Decided on 12.6.1996
MetturBeardseU Ltd. (represented by Its Personnel Manager), Madras
vs.
Regional Labour Commissioner (Central)
(Authority under Payment of Gratuity Act).
Madras & Others
PAYMENT OF GRATUITY ACT 1972- Sections 2(a), 2(b), 2(c), 2(e) and 2A -'Continuous service' - Qualifying period of service by an employee –Entitlement of Gratuity - An employee rendering continuous service for a period of 240 days in a year will be deemed to have continued in service for 'one year as stipulated by section 2A of the Act -Thus an employee who has Put in service for 10 months and 18 days for the fifth year subsequent to first 4 years should be deemed to have completed continuous s6rvice of five years -His claim for gratuity is tenable.
From India, Ahmadabad
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Apart from the above, you can refer to the link below to have a better understanding: https://indiankanoon.org/search/?for...tuity+240+days
From India, Ahmadabad
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From India, Ahmadabad
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Dear Mr. Saji,
There is a judgment of the Madras High Court on a particular case, and that judgment does not have any impact on other cases. As per the act, a minimum of 5 years of service is required to become eligible for gratuity. Since there has been no amendment to the act based on the judgment, you cannot compel the employer to pay gratuity after 4 years and 240 days.
From India, Delhi
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There is a judgment of the Madras High Court on a particular case, and that judgment does not have any impact on other cases. As per the act, a minimum of 5 years of service is required to become eligible for gratuity. Since there has been no amendment to the act based on the judgment, you cannot compel the employer to pay gratuity after 4 years and 240 days.
From India, Delhi
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Dear Saji,
As an employer, we have trust and insured our gratuity through LIC. Even if they do not pay gratuity to any member if the service is less than 5 years, then from where do we pay gratuity to the employee? Various judgments come from time to time, and you can take judgment as a guideline when the act is not clear. Here the act is clear, so why should we follow the judgment or guidelines?
From India, Delhi
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As an employer, we have trust and insured our gratuity through LIC. Even if they do not pay gratuity to any member if the service is less than 5 years, then from where do we pay gratuity to the employee? Various judgments come from time to time, and you can take judgment as a guideline when the act is not clear. Here the act is clear, so why should we follow the judgment or guidelines?
From India, Delhi
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Dear Sh. Saji,
First of all, thank you for sharing the judgment.
As Malik Sir rightly stated, judgments may be viewed and referred to in order to support proceedings of routine cases. However, from an employer's point of view, there is no point in referring to judgments only to reach a decision when clear-cut guidelines are provided in the Act.
Don't you think that following only judgments will overlook the provisions of the Act? If only judgments are considered as a criterion, then why does the victim need to submit separate complaints in court? Courts give judgments to avail rights of victims in tune with the Act.
Sometimes judgments help in understanding aspects and applicability of the Act, but they can never supersede the Act. The Act is static and must be referred to as the primary source.
Based on my understanding and previous submission on the subject, this person will have to claim his gratuity before the Asst. Labour Commissioner of the concerned area. In such a scenario, the victim may submit this case law in his support. The competent authority will investigate it thoroughly and decide as appropriate.
Please don't take it otherwise. It is just sharing.
Regards.
From India, Bhopal
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First of all, thank you for sharing the judgment.
As Malik Sir rightly stated, judgments may be viewed and referred to in order to support proceedings of routine cases. However, from an employer's point of view, there is no point in referring to judgments only to reach a decision when clear-cut guidelines are provided in the Act.
Don't you think that following only judgments will overlook the provisions of the Act? If only judgments are considered as a criterion, then why does the victim need to submit separate complaints in court? Courts give judgments to avail rights of victims in tune with the Act.
Sometimes judgments help in understanding aspects and applicability of the Act, but they can never supersede the Act. The Act is static and must be referred to as the primary source.
Based on my understanding and previous submission on the subject, this person will have to claim his gratuity before the Asst. Labour Commissioner of the concerned area. In such a scenario, the victim may submit this case law in his support. The competent authority will investigate it thoroughly and decide as appropriate.
Please don't take it otherwise. It is just sharing.
Regards.
From India, Bhopal
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Dear Mr. Rajesh/Malik,
My point of view is the same: let the employee claim his gratuity with the competent authority. The case law can be referred to file a fresh complaint to the court of law if required. However, it would not be appropriate to stop the employee from claiming his right to gratuity.
My earlier posts only state that the employee should claim first; the rest can be done later. There are ample lawyers available in India, as well as in this forum, who are competent enough to fight it legally and get the gratuity paid to the employee.
From India, Ahmadabad
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My point of view is the same: let the employee claim his gratuity with the competent authority. The case law can be referred to file a fresh complaint to the court of law if required. However, it would not be appropriate to stop the employee from claiming his right to gratuity.
My earlier posts only state that the employee should claim first; the rest can be done later. There are ample lawyers available in India, as well as in this forum, who are competent enough to fight it legally and get the gratuity paid to the employee.
From India, Ahmadabad
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Dear Cite HR readers, Mentioned below the extracts of Supreme Court of India rulings on Gratuity payable to an employee who has completed the service of 4 years and 240 working days in 5th year of service. This has been from a good samaritan for the viewers of Cite HR.
Clarity between gratuity eligibility service (5 or 4.8 yrs)?
The gratuity eligibility service as per Gratuity Act 1972 is 5 years.
But as per the judgment from Supreme Court below and the quotation from the book quoted below it seems that the gratuity eligibility service is 4 years 240 days.
"Judgment from Supreme Court:
"Yes, by virtue of the judgment of Supreme Court rendered under the provisions of the Industrial Dispute Act in Surendra Kumar Verma vs. Central Govt. Industrial Tribunal, [(1980) (4) S.C.C.433)], it is enough that an employee has a service of 240 days in the preceding 12 months and it is not necessary that he should have completed one whole year’s service. As the definition of continuous service in Industrial Dispute Act and Payment of Gratuity Act are synonymous, the same principal can be adopted under the act also and hence an employee rendering service of 4 year 10 months 11 days is considered to have completed 5 years continuous service under sec.4(2) and thereby is eligible for gratuity."
Quotation from the book:
Law Book (Bare Act,2004) i.e. The Payment of Gratuity Act,1972 (Publisher: Law Publishers () Pvt. Ltd., 18A-S.P.Marg, Post Box - 1077, Allahabad - 211001. Phone: 623735, 623741 Fax-0532-622276.website: lawpublishersindia.com
1. 4 years and 6 months (190 days = 1 year) where the company follows 5 day a week.
2. 4 years and 8 months ( 240 days = 1 year) where the company follows 5 day a week.
Is eligible for gratuity.The payment of gratuity ( second amendment) act, 1984 clarifies this. One needs to calculate the no of years and service completion as follows.
A company which follows 5 day week
Doj 1.05.2000 -
01.05.2000 to 30.04.2001 - worked for 190 days
01.05.2001 to 30.04.2002 - worked for 190days
If we go by the above formula and if the person does not have any break in service he will be eligible for gratuity on 01.11.2004 "
Non clarity of this rule has created confusion among a lot of employees. As some hear that some companies are following the 4 years 240 days rule, while some follow the 5 year rule. Please help remove this confusion so that nobody rights of gratuity are being compromised on. Expert Lawyer may please give his comments and advice. .
From India, New Delhi
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Clarity between gratuity eligibility service (5 or 4.8 yrs)?
The gratuity eligibility service as per Gratuity Act 1972 is 5 years.
But as per the judgment from Supreme Court below and the quotation from the book quoted below it seems that the gratuity eligibility service is 4 years 240 days.
"Judgment from Supreme Court:
"Yes, by virtue of the judgment of Supreme Court rendered under the provisions of the Industrial Dispute Act in Surendra Kumar Verma vs. Central Govt. Industrial Tribunal, [(1980) (4) S.C.C.433)], it is enough that an employee has a service of 240 days in the preceding 12 months and it is not necessary that he should have completed one whole year’s service. As the definition of continuous service in Industrial Dispute Act and Payment of Gratuity Act are synonymous, the same principal can be adopted under the act also and hence an employee rendering service of 4 year 10 months 11 days is considered to have completed 5 years continuous service under sec.4(2) and thereby is eligible for gratuity."
Quotation from the book:
Law Book (Bare Act,2004) i.e. The Payment of Gratuity Act,1972 (Publisher: Law Publishers () Pvt. Ltd., 18A-S.P.Marg, Post Box - 1077, Allahabad - 211001. Phone: 623735, 623741 Fax-0532-622276.website: lawpublishersindia.com
1. 4 years and 6 months (190 days = 1 year) where the company follows 5 day a week.
2. 4 years and 8 months ( 240 days = 1 year) where the company follows 5 day a week.
Is eligible for gratuity.The payment of gratuity ( second amendment) act, 1984 clarifies this. One needs to calculate the no of years and service completion as follows.
A company which follows 5 day week
Doj 1.05.2000 -
01.05.2000 to 30.04.2001 - worked for 190 days
01.05.2001 to 30.04.2002 - worked for 190days
If we go by the above formula and if the person does not have any break in service he will be eligible for gratuity on 01.11.2004 "
Non clarity of this rule has created confusion among a lot of employees. As some hear that some companies are following the 4 years 240 days rule, while some follow the 5 year rule. Please help remove this confusion so that nobody rights of gratuity are being compromised on. Expert Lawyer may please give his comments and advice. .
From India, New Delhi
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