I am surprised, Aditya has been referring to an old bare Act. The maximum amount of gratuity is not 3.5 lakhs but it is 10 lakhs since 2009. In the case of seasonal employment it is worked out at the rate of 7 days wages for every season and not year. Also refer section 2 A which clarifies what constitutes continuous service and the significance of 240 days in a year. In the case of seasonal employment the qualifying service is 75% of working days in each season. Please also refer section 1 (3) which tells to which employment the Act applies and accordingly it applies to every factory, mine, plantations, oil field and other shops and commercial establishments employing 10 or more persons. That means requirement of 10 employees is not common for all industries but it is for shops and commercial establishments.
Madhu.T.K
From India, Kannur
4249Madhu.T.K
From India, Kannur
Hi
Madhu,
Please see the latest amendment for your reference
After the amendment, the definition has been broad based as to include any person, employed to do any kind of work. Thus the definition includes a teacher as an employee under the Act.
An employee who could not complete the fifth year for any of the reasons but completes four years and 240 days (8months) is considered under law as having completed fifth year also and becomes eligible for gratuity.
From India, Mumbai
Madhu,
Please see the latest amendment for your reference
After the amendment, the definition has been broad based as to include any person, employed to do any kind of work. Thus the definition includes a teacher as an employee under the Act.
An employee who could not complete the fifth year for any of the reasons but completes four years and 240 days (8months) is considered under law as having completed fifth year also and becomes eligible for gratuity.
From India, Mumbai
I did not comment on the definition of employee and I am aware of the new definition. Regarding entitlement of gratuity on completion of 240 days in the fifth year, there is no amendment to the Act. The concept has relevance only with reference to continuous service and that does not mean that just by putting in 240 days in the fifth year an employee would become eligible to gratuity. If the Act says "on completion of five years" it should be taken as five years from the date of joining till the date of exit.
Madhu.T.K
From India, Kannur
Madhu.T.K
From India, Kannur
Hi,
There is confusion as law does not give any clarification if 240 is for casual or regular employee.
Definition Continuous service as per Act - is continuous service of 240 days. it is not explained that how to deal with shortfall if there is not completion of 5 years.
as per act 240 days means 1 year.
Madras High court has ruled out like that last year 240 days are sufficient to claim gratuity.
Every company is following different practices. If challenged in court then court's decision will be binding.
From India, Mumbai
There is confusion as law does not give any clarification if 240 is for casual or regular employee.
Definition Continuous service as per Act - is continuous service of 240 days. it is not explained that how to deal with shortfall if there is not completion of 5 years.
as per act 240 days means 1 year.
Madras High court has ruled out like that last year 240 days are sufficient to claim gratuity.
Every company is following different practices. If challenged in court then court's decision will be binding.
From India, Mumbai
Hi,
For non - seasonal establishments, how to consider continue service ( 1 year)
which companies will work less than 6 days in week then 190 days will be consider for calculation
and which companies will work in 7 days then 240 days will be considering for the calculation
For non - seasonal establishment ( 6 months)
which companies will work less than 6 days in week then 95 days will be consider for calculation
and which company will work 7 days in week and 6 months in year then it will be consider 120 days for calculation.
Seasonal factory means(seasonal factory’ means a factory which is exclusively engaged in the manufacture of tea, sugar, rubber, [turpentine, resin], [indigo], [lac, fruit and vegetable preservation industry, rice milling industry, dal milling industry], [cashewnut industry], [stemming or redrying of tobacco leaf industry, tiles industry, hosiery industry], [oil milling industry], [licensed salt industry], [jute bailing or pressing industry],
[fireworks and percussion cap works industry, ice or ice cream industry or cotton ginning, baling and pressing industry).
Seasonal establishment means(seasonal establishment” means a plantation of tea, coffee, rubber, cardamom or pepper, a coffee curing establishment, a fire-clay mine or a gypsum mine.
Except these all comes under in non-seasonal establishment.
Seasonal Establishment- For (1 year and 6 months)
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.]
From India, Mumbai
For non - seasonal establishments, how to consider continue service ( 1 year)
which companies will work less than 6 days in week then 190 days will be consider for calculation
and which companies will work in 7 days then 240 days will be considering for the calculation
For non - seasonal establishment ( 6 months)
which companies will work less than 6 days in week then 95 days will be consider for calculation
and which company will work 7 days in week and 6 months in year then it will be consider 120 days for calculation.
Seasonal factory means(seasonal factory’ means a factory which is exclusively engaged in the manufacture of tea, sugar, rubber, [turpentine, resin], [indigo], [lac, fruit and vegetable preservation industry, rice milling industry, dal milling industry], [cashewnut industry], [stemming or redrying of tobacco leaf industry, tiles industry, hosiery industry], [oil milling industry], [licensed salt industry], [jute bailing or pressing industry],
[fireworks and percussion cap works industry, ice or ice cream industry or cotton ginning, baling and pressing industry).
Seasonal establishment means(seasonal establishment” means a plantation of tea, coffee, rubber, cardamom or pepper, a coffee curing establishment, a fire-clay mine or a gypsum mine.
Except these all comes under in non-seasonal establishment.
Seasonal Establishment- For (1 year and 6 months)
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.]
From India, Mumbai
Hi,
As advised by other friends you are eligible. Just one caution : please check letter of appointment and confirm that it was a permanent appointment.
Immediately after separation please submit dully filled "Form - I" to your employer for claim of gratuity, with copy to the DLC of your area. Legally, the payment should be made within 30 days, if not you can claim interest for delay.
From India, New Delhi
As advised by other friends you are eligible. Just one caution : please check letter of appointment and confirm that it was a permanent appointment.
Immediately after separation please submit dully filled "Form - I" to your employer for claim of gratuity, with copy to the DLC of your area. Legally, the payment should be made within 30 days, if not you can claim interest for delay.
From India, New Delhi
**************
Dear Madhu,
Sorry for the ambiguity...to clarify the things, please note one of my friend is working for a Trade office which is an extension of a foreign (x) country embassy. The embassy had handed over the trade office to a consultant for administration purpose, hence the employees were taken under the consultancy firm and my friend worked for around 14 years with them under every 4 years renewal contract with the same consultancy firm. In the contract they have mentioned that gratuity is applicable and when the employee leaves they will get one month instead of 15 days which is as per India gratuity law.
4 years back the same consultancy could not get the tender hence another consultant took over under the same terms and conditions and employees were promised verbally that there would not be any change and hence everyone re-entered the contract without taking gratuity. Now the embassy is planning to take over all the employees under them. But they are not ready to pay the full 1 month gratuity, they are only paying 15 days gratuity for 14 years of service of my friend.
My question is can my friend put a legal case to get the remaining 15 days gratuity?
thanks and regards
From India, Mumbai
Dear Madhu,
Sorry for the ambiguity...to clarify the things, please note one of my friend is working for a Trade office which is an extension of a foreign (x) country embassy. The embassy had handed over the trade office to a consultant for administration purpose, hence the employees were taken under the consultancy firm and my friend worked for around 14 years with them under every 4 years renewal contract with the same consultancy firm. In the contract they have mentioned that gratuity is applicable and when the employee leaves they will get one month instead of 15 days which is as per India gratuity law.
4 years back the same consultancy could not get the tender hence another consultant took over under the same terms and conditions and employees were promised verbally that there would not be any change and hence everyone re-entered the contract without taking gratuity. Now the embassy is planning to take over all the employees under them. But they are not ready to pay the full 1 month gratuity, they are only paying 15 days gratuity for 14 years of service of my friend.
My question is can my friend put a legal case to get the remaining 15 days gratuity?
thanks and regards
From India, Mumbai
If there is any written document which says that your friend would be eligible to 30 days salary for every completed year of service as gratuity then he can claim that. On the other hand, if nothing is mentioned in the appointment order or any other communication given later on, then it will be difficult for him to establish the undertaking given by the employer and in such scenario he will have to satisfy with what the Act says.
Madhu.T.K
From India, Kannur
Madhu.T.K
From India, Kannur
Dear Madhu,
Thanks. In the initial appointment contract it is mentioned 30 days and in subsequent documents it is mentioned auto renewal as per terms of appointment contract.
There is one more point which they (x country embassy) have been misguided I feel, by some Indian consultant. The consultant has informed that the employee can get only maximum of inr 10l as gratuity. But my understanding is that one can get x amount, but after 10l it is taxable. Please correct me if I am wrong.
Is the case of my friend strong enough for legal claiming?
Please help.
thanks
From India, Mumbai
Thanks. In the initial appointment contract it is mentioned 30 days and in subsequent documents it is mentioned auto renewal as per terms of appointment contract.
There is one more point which they (x country embassy) have been misguided I feel, by some Indian consultant. The consultant has informed that the employee can get only maximum of inr 10l as gratuity. But my understanding is that one can get x amount, but after 10l it is taxable. Please correct me if I am wrong.
Is the case of my friend strong enough for legal claiming?
Please help.
thanks
From India, Mumbai
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Madras HC judg regarding gratuity is applicable if workmen is working 4 years 240 days..pdf