EXACTLY...employee is writing mail for gratuity and threatening for legal action as he has got the salary for two months in 2016 any court ruling regarding that.... please guide
From India, Mumbai
32From India, Mumbai
You need not mix up the probation period and the fixed term contract with right of an employee to get gratuity. Both the period during which the employee was on probation and the period served under a fixed term contract will be considered as service for the purpose of eligibility for gratuity. But in the present case, the employee has not worked for 4 years plus 240 days in the fifth year. You need not take years in compartments but take the date of his leaving service (date of which he was formally relieved) and count the pay days backwards (you need not take the days physically present but the days for which salary was paid because the weekly off days, the employee was on leave with pay, holidays etc will be counted as days worked for the purpose of gratuity calculation) and see whether each year has 240 pay days and accordingly see whether he has worked for 5 years. I don't think that he has such number of pay days. If not, reject the application for gratuity. And if he has worked for 5 years with each year qualifying with 240 days of work, then give him the amount and settle the issue.
Now supporting the comments made by Shri Umakanthan Sir, I would say that though fixed term appointment is permitted, engaging an employee on FTC for such a long period is not a good practice and is one of the unfair practices under the ID Act
From India, Kannur
Now supporting the comments made by Shri Umakanthan Sir, I would say that though fixed term appointment is permitted, engaging an employee on FTC for such a long period is not a good practice and is one of the unfair practices under the ID Act
From India, Kannur
how (leave without pay) LWP shall consider in this case? shall gratuity count accordingly?i mean including LWP?
From India, Mumbai
From India, Mumbai
LOP period is included for calculating gratuity as it comes within the continuous service as defined under Section 2A of the Payment of Gratuity Act 1973. From what you have described, the employee has not completed the eligibility period of 4 years & 240 days, particularly with the 2 month break in service and so is ineligible. If the employee has stated anything to the contrary in the notice, pl share so that we can exercise our mind in the matter.
From India, Mumbai
From India, Mumbai
LOP which is nor regularised will be taken as break in service. There are few gaps in between the FTCs these are unpaid days and are not taken for counting the continuous service.
From India, Kannur
From India, Kannur
Dear Friend,
One should have 5 years of conteneous service to get gratuity. The period of probation can not be separated from the length of service. The calender year calculation is not justified. The following observations set & decided by the apex court to decide one's eligibility.
One must have actually worked for 240days the relationship of master and servant existed for a period of 240 days. If an employee has been absent for any number of days only by reason of sickness, accident, leave, lay-off, strike or a lock-out or cessation of work not due to any fault of the employee concerned then his service will be uninterrupted and will be taken to be continuous service irrespective of the number of days, for which he has been absent in that year.
However, if the employee has been absent for any reason other than the reasons mentioned in the main part of the definition, his service will not be deemed to be uninterrupted and therefore, not continuous.
When this law was framed had given priority to both employer and employee and the conteneous service was purely actual 240 days of working/present in service. By which the employer was able to get more working days for the factory for maximisation of production and to pay for the contribution to employee as Gratuity. We still wandering after 46 years of enactment of the Act/rules/ laws to understand the eligibility...........has become so complex after several decissions by the courts......,
From India, Mumbai
One should have 5 years of conteneous service to get gratuity. The period of probation can not be separated from the length of service. The calender year calculation is not justified. The following observations set & decided by the apex court to decide one's eligibility.
One must have actually worked for 240days the relationship of master and servant existed for a period of 240 days. If an employee has been absent for any number of days only by reason of sickness, accident, leave, lay-off, strike or a lock-out or cessation of work not due to any fault of the employee concerned then his service will be uninterrupted and will be taken to be continuous service irrespective of the number of days, for which he has been absent in that year.
However, if the employee has been absent for any reason other than the reasons mentioned in the main part of the definition, his service will not be deemed to be uninterrupted and therefore, not continuous.
When this law was framed had given priority to both employer and employee and the conteneous service was purely actual 240 days of working/present in service. By which the employer was able to get more working days for the factory for maximisation of production and to pay for the contribution to employee as Gratuity. We still wandering after 46 years of enactment of the Act/rules/ laws to understand the eligibility...........has become so complex after several decissions by the courts......,
From India, Mumbai
Dear Dipti,
Time and again, it is quite unfortunate that many questioners ignore the repeated requests of some of the resource persons of this forum to present all the relevant details relating to their disputed questions of facts in full as well as with clarity of presentation at a stretch. But, they are coming forth in instalments only that too after many, many follow up questions by the respondents.
Very well this can be culled out of your first post yesterday and the second post today. The employee was in your service as a Fixed Term Annual Contract Employee for 4 years only and excepting the first two, the contracts are not consecutive in nature and therefore no possibility of counting the breaks for the purpose of continuity of service for computing the minimum qualifying service for gratuity as per S.2-A of the Payment of Gratuity Act,1972. There is no break in the service of the employee between the first two annual contracts i.e., 30-03-2013 to 31-03-2014 and 01-04-2014 to 31-03-2015. But, there is a break of 7 months before the commencement of the third contract i.e., 01-11-2015 to 31-10-2016. Again, between the third and fourth contracts, there is a break of 2 months. Since the breaks are due to non-renewal of the contract, they can not be simply treated as breaks on account of LOP.
Therefore, my considered opinion is that the employee is not eligible for gratuity as she has not completed the minimum qualifying continuous service of not less than 5 years.
From India, Salem
Time and again, it is quite unfortunate that many questioners ignore the repeated requests of some of the resource persons of this forum to present all the relevant details relating to their disputed questions of facts in full as well as with clarity of presentation at a stretch. But, they are coming forth in instalments only that too after many, many follow up questions by the respondents.
Very well this can be culled out of your first post yesterday and the second post today. The employee was in your service as a Fixed Term Annual Contract Employee for 4 years only and excepting the first two, the contracts are not consecutive in nature and therefore no possibility of counting the breaks for the purpose of continuity of service for computing the minimum qualifying service for gratuity as per S.2-A of the Payment of Gratuity Act,1972. There is no break in the service of the employee between the first two annual contracts i.e., 30-03-2013 to 31-03-2014 and 01-04-2014 to 31-03-2015. But, there is a break of 7 months before the commencement of the third contract i.e., 01-11-2015 to 31-10-2016. Again, between the third and fourth contracts, there is a break of 2 months. Since the breaks are due to non-renewal of the contract, they can not be simply treated as breaks on account of LOP.
Therefore, my considered opinion is that the employee is not eligible for gratuity as she has not completed the minimum qualifying continuous service of not less than 5 years.
From India, Salem
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