I worked in a factory for more than 9 years and quit for some reasons. Later on I again joined the same company after 3 year and again quit after 3 years. After one year I again joined the company and continue with the company till date. Thus I had 2 breaks in the total period of 26 years of service in the same company. My question is how many years of service shall be considered for the calculation of gratuitity.
From India, Delhi
From India, Delhi
Didn’t you get gratuity for the first spell of 9 years when you left the company? Why didn’t the company pay you gratuity then?
From India, Kannur
4230From India, Kannur
Sir, due to un-awareness on my part about the payment of gratuity at that time. Neither I claimed nor the company paid itself.
From India, Delhi
From India, Delhi
You,(an employee) need not claim gratuity. It is the responsibility of the employer to pay gratuity within 30 das of your leaving. Now, if the company has not paid it, and you were allowed to rejoin the company after 3 years, the period between the two, leaving the company after 9 years and joining back, shall be treated as break in service, and again adding the three years in the second spell as in continuous to the nine years. Again when the second spell also went without any gratuity payment, and the company allowed you to continue after a gap of one year, the same would also account for service. The question is whether the company had recorded the gaps as not in service or not. If you had resigned and the company had relieved properly, then the only obligation as far as the company is to pay you gratuity for the first service f 9 years now with interest. The present rate of gratuity is 10% pa. Since the second service contained only three years, that period of service will not give you any gratuity. Similarly, if you do not have five years in the present service since your joining again, then you will not get any gratuity for this period of service also.
It may also happen that when you left after the first set of service, the company was not covered by Payment of Gratuity Act also. Therefore, please check at that period if the company was covered by the Gratuity law. If your undertaking is a factory/ mine/ plantation the Payment of Gratuity Act would be applicable to it irrespective of the number of employees in it. But if not a factory/ mine or plantation, but was carrying out some trading kind of activities, then in order to make the Gratuity law applicable there should be at least ten employees in your company.
If it was a delay in payment of gratuity, the company can pay it now with interest. The amount of gratuity would be computed on the basis of the salary that you earned at the time of leaving the company after your first 9 years of service. At the same time, if your leaving was just a casual leaving, but the company had ignored it as it is without initiating any action for not reporting and allowed you to rejoin you without endorsing the break in service as a period without any service benefits, then the employer will find it difficult to find a way out. In such a scenario, you will be in a positive position because if you are able to establish that the gap was only technical, then your gratuity will have to be calculated on the basis of the present salary which will, obviously, be higher than the past wages, and the reckonable service would be 26 years.
Another possibility is that the employer can compute gratuity based on present salary but for a number of years of service by counting the breaks in service, say 3 years after the first period of service and one year after the second period of service, as breaks in service.
From India, Kannur
It may also happen that when you left after the first set of service, the company was not covered by Payment of Gratuity Act also. Therefore, please check at that period if the company was covered by the Gratuity law. If your undertaking is a factory/ mine/ plantation the Payment of Gratuity Act would be applicable to it irrespective of the number of employees in it. But if not a factory/ mine or plantation, but was carrying out some trading kind of activities, then in order to make the Gratuity law applicable there should be at least ten employees in your company.
If it was a delay in payment of gratuity, the company can pay it now with interest. The amount of gratuity would be computed on the basis of the salary that you earned at the time of leaving the company after your first 9 years of service. At the same time, if your leaving was just a casual leaving, but the company had ignored it as it is without initiating any action for not reporting and allowed you to rejoin you without endorsing the break in service as a period without any service benefits, then the employer will find it difficult to find a way out. In such a scenario, you will be in a positive position because if you are able to establish that the gap was only technical, then your gratuity will have to be calculated on the basis of the present salary which will, obviously, be higher than the past wages, and the reckonable service would be 26 years.
Another possibility is that the employer can compute gratuity based on present salary but for a number of years of service by counting the breaks in service, say 3 years after the first period of service and one year after the second period of service, as breaks in service.
From India, Kannur
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