Hi, I have completed 10 years in a private school organization. However, the school denied giving me gratuity. I then filed a case with the education department in Punjab. Now, they have asked me to provide any written information or legal orders as the school has stated that individuals should either be 58 years old or have completed 20 years in the organization to be eligible for gratuity.
Please, if anyone can assist me, I would greatly appreciate it.
Regards, Jasmeet
8427028087
From India, Delhi
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1Please, if anyone can assist me, I would greatly appreciate it.
Regards, Jasmeet
8427028087
From India, Delhi
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This is not a subject of the education department but it is a matter for your area's Labour Officer. You may approach the Labour department. They may not require any citation or the bare Act to take action regarding the issue at the school.
From India, Kannur
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From India, Kannur
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Dear All.
While working with one of private company, it was practice that, even in case of eligible permanent workers who has rendered service more than 5 years, they considered those years in which the worker has physically present for 240 days. The management's interpretation was that, the gratuity is payable according to Section 2 A (2) (a) (ii) of the Payment of Gratuity Act, extract of the clause is shortly stated below.
[2A. Continuous service.—For the purposes of this Act,—
(1) an employee shall be said to be in continuous service ............................
(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,....................................
(ii) two hundred and forty days, in any other case;
After reference of provisions of the Act & some case laws as well as discussions had with seniors, my assumptions is, the above clause may applicable to Badali/Temporary workers who are working in absence of permanent worker for time being.
My query is, Is it legal and proper to apply above clause of 240 days actually worked in each year for eligibility of gratuity payment to permanent employees ? Is there any case law in which Hon'ble Court may have explain in details or made interpretation on the above clause is not applicable for the gratuity payment of permanent worker ?
Shaikh. I.Y.
Manager HR.
From India, Nashik
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While working with one of private company, it was practice that, even in case of eligible permanent workers who has rendered service more than 5 years, they considered those years in which the worker has physically present for 240 days. The management's interpretation was that, the gratuity is payable according to Section 2 A (2) (a) (ii) of the Payment of Gratuity Act, extract of the clause is shortly stated below.
[2A. Continuous service.—For the purposes of this Act,—
(1) an employee shall be said to be in continuous service ............................
(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,....................................
(ii) two hundred and forty days, in any other case;
After reference of provisions of the Act & some case laws as well as discussions had with seniors, my assumptions is, the above clause may applicable to Badali/Temporary workers who are working in absence of permanent worker for time being.
My query is, Is it legal and proper to apply above clause of 240 days actually worked in each year for eligibility of gratuity payment to permanent employees ? Is there any case law in which Hon'ble Court may have explain in details or made interpretation on the above clause is not applicable for the gratuity payment of permanent worker ?
Shaikh. I.Y.
Manager HR.
From India, Nashik
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Very simple, you may just read 240 days as 240 paid days. That means these 240 days should include all weekly off days, paid leaves, and holidays. Obviously, the permanent employees will be paid for 30/31 days a month. They will be eligible for holidays with pay and will also be given paid leaves like CL or PL. In the case of female employees, maternity leave days are also included. Therefore, it is better to consider 240 as 240 paid days. Even for a permanent worker/employee who fails to meet this 240-day target due to regular absenteeism or being absent without leave, gratuity shall be refused for those years where the qualifying 240 paid days are not met.
From India, Kannur
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From India, Kannur
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I think until the issue is clear, as per the provisions of the Act, in the case of permanent workers where their total paid days are below 240 days due to absenteeism, management must conduct a domestic enquiry. If the charges of absenteeism leveled against the worker are proven, the decision to break the services must be taken. Only then the particular year in which the worker has not received 240 paid days cannot be considered for gratuity.
Shaikh.I.Y. Manager HR.
From India, Nashik
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Shaikh.I.Y. Manager HR.
From India, Nashik
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Employee has worked for 8 years, 6 months, and 27 days. What would be the completed years, is it 8 years or 9 years? I have gone through this forum where your team is referring to section 4(2) of the Payment of Gratuity Act, 1972 for completed years of service. However, if we go by section 4(1) of the Payment of Gratuity Act, 1972, where it is specifically mentioned that "payable to the employee after he has rendered continuous service" and there is a definition given for continuous service in the act. So accordingly, an employee has to complete 240 days to consider it a completed year in the gratuity calculation.
If the employee is not fulfilling the requirement given in section 4(1) of the Payment of Gratuity Act, 1970, what is the logic of section 4(2) of the Payment of Gratuity Act, 1970?
Can anyone please provide an explanation of the above points? If anyone can provide a case study, court ruling, or judgment related to this matter, it would be greatly appreciated.
From India
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If the employee is not fulfilling the requirement given in section 4(1) of the Payment of Gratuity Act, 1970, what is the logic of section 4(2) of the Payment of Gratuity Act, 1970?
Can anyone please provide an explanation of the above points? If anyone can provide a case study, court ruling, or judgment related to this matter, it would be greatly appreciated.
From India
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Section 4(2) is a direction to calculate gratuity. Once an employee becomes eligible for gratuity, while calculating the year of service, a fraction of a year exceeding 6 months should be rounded off to one year. That means, in your example, if you have 8 years, 6 months, and 27 days of service, the eligible service will be 9 years.
The issue of 240 days has nothing to do with the above. 240 days is the bare minimum paid days required for an employee even to become eligible for gratuity. That means if you have lots of unpaid leaves in each year as a result of which you fail to get 240 days in a year, such years will not be counted for gratuity calculation. Continuing the above example, say, out of 8 years, there was a year, say 2017, in which you did not attend work for a few months but could attend only for 220 days in total, and the absence remained unregularized. Then that year will not be taken for gratuity calculation. At that time, you cannot say that you had worked for more than six months in that year, 2017; you should get the benefit of one year of gratuity. This fraction matter appears only in the last year and not in between the service.
From India, Kannur
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The issue of 240 days has nothing to do with the above. 240 days is the bare minimum paid days required for an employee even to become eligible for gratuity. That means if you have lots of unpaid leaves in each year as a result of which you fail to get 240 days in a year, such years will not be counted for gratuity calculation. Continuing the above example, say, out of 8 years, there was a year, say 2017, in which you did not attend work for a few months but could attend only for 220 days in total, and the absence remained unregularized. Then that year will not be taken for gratuity calculation. At that time, you cannot say that you had worked for more than six months in that year, 2017; you should get the benefit of one year of gratuity. This fraction matter appears only in the last year and not in between the service.
From India, Kannur
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Gratuity – Continuous service interpretation for Technology / IT / BPO companies
The continual years of service eligibility for gratuity mandate a minimum of five years which is unaltered (status quo remains) per the Payment of Gratuity Act.
The legal interpretation for continuous working days to be applied with a difference between “under the ground” (mining, under the sea, plantations) which is further interpreted as “hazardous job nature”; whereas “above the ground” (other) establishments represents “unhazardous job nature” - the key differentiator for the purpose of deciding the “no of days” of continuous service.
190 days or less than 6 days working per week represents an “employment in hazardous working / occupational hazard jobs by nature” and hence a resultant reduced gratuity eligible days/working days.
This is the intent of the legal script notified under section 2A, 2 (i) within the same clause; if the “number. of working days at less than 6 days” was purported for “any industry” the clause would have been carefully differentiated.
So, any wrong ideation to isolate the clause of “less than 6 working days” is irrational to relate to “above the ground” non-hazardous jobs – Technology / IT / BPO companies fall under this category, they provide “safe jobs” as much five days working was intended for a lifestyle balancing amongst such industry as a “best practice” and not for any occupational hazard-related.
Hence, for Technology / IT / BPO companies, from a computation point of view, any consecutive 8 worked months period post 4 years of continuous service shall make the employee eligible for gratuity. The consecutive eight months computes to 240 paid days.
Note: So far, there has been no case laws notified for the above 190/less than 6 days work week for Non-hazardous jobs (scenario) in both HC / SC; the last being a mandate to adhere to 4 years and 240 days as minimum criteria.
Hope, hereon, all legal intellectual forums, social media forums ensure depth interpretations and not a mislead maneuvers.
From India, Puducherry
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The continual years of service eligibility for gratuity mandate a minimum of five years which is unaltered (status quo remains) per the Payment of Gratuity Act.
The legal interpretation for continuous working days to be applied with a difference between “under the ground” (mining, under the sea, plantations) which is further interpreted as “hazardous job nature”; whereas “above the ground” (other) establishments represents “unhazardous job nature” - the key differentiator for the purpose of deciding the “no of days” of continuous service.
190 days or less than 6 days working per week represents an “employment in hazardous working / occupational hazard jobs by nature” and hence a resultant reduced gratuity eligible days/working days.
This is the intent of the legal script notified under section 2A, 2 (i) within the same clause; if the “number. of working days at less than 6 days” was purported for “any industry” the clause would have been carefully differentiated.
So, any wrong ideation to isolate the clause of “less than 6 working days” is irrational to relate to “above the ground” non-hazardous jobs – Technology / IT / BPO companies fall under this category, they provide “safe jobs” as much five days working was intended for a lifestyle balancing amongst such industry as a “best practice” and not for any occupational hazard-related.
Hence, for Technology / IT / BPO companies, from a computation point of view, any consecutive 8 worked months period post 4 years of continuous service shall make the employee eligible for gratuity. The consecutive eight months computes to 240 paid days.
Note: So far, there has been no case laws notified for the above 190/less than 6 days work week for Non-hazardous jobs (scenario) in both HC / SC; the last being a mandate to adhere to 4 years and 240 days as minimum criteria.
Hope, hereon, all legal intellectual forums, social media forums ensure depth interpretations and not a mislead maneuvers.
From India, Puducherry
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