I don't know what Mr Manish wants to convey. Full and Final Service and Continuous service-are they any way related? An employee who does not have continuous service is also eligible for F&F. F&F only means settlement of his unpaid salary,travel bills, etc and it has nothing to do with continuous service. Therefore, after accepting the F&F, if he files a complaint before the appropriate authority for recovery of gratuity ( I think the matter is related to payment of gratuity) then the employer cannot say that he has already accepted the full and final settlement and he cannot raise the issue again. This is because payment of gratuity is the responsibility of the employer and even if the employee has not demanded it, if he is eligible, the employer has the obligation to contact the left employee and pay the gratuity amount to him.
Let me take it like F&F on the expiry of each contract. So what? F&F only reflects the settlement of dues other than gratuity.For the purpose of gratuity the service at each spell will be counted and if each year has 240 days of working, he should get gratuity even if he has signed F&F at the end of each service contract period.
From India, Kannur
4249Let me take it like F&F on the expiry of each contract. So what? F&F only reflects the settlement of dues other than gratuity.For the purpose of gratuity the service at each spell will be counted and if each year has 240 days of working, he should get gratuity even if he has signed F&F at the end of each service contract period.
From India, Kannur
Madhu ji, employee has not completed 5 years in one term ( say 4.1 years) ,
Employee has taken F&F and accepted the same, left the company.
Again employer called him after one month gap or two month gap.
After accepting F&F, how employee can claim for gratuity in case when he has not completed 5 years.
Employer can claim that he has accepted F&F and not completed 5 years, in any terms of definition of "Continuous service".
That is why sir I asked.
Thanks
From India, Delhi
Employee has taken F&F and accepted the same, left the company.
Again employer called him after one month gap or two month gap.
After accepting F&F, how employee can claim for gratuity in case when he has not completed 5 years.
Employer can claim that he has accepted F&F and not completed 5 years, in any terms of definition of "Continuous service".
That is why sir I asked.
Thanks
From India, Delhi
This is reemployment and not merely break in service. Obviously, in such cases the gratuity will not be payable. But if the operation system itself is that a person will be hired for one year and after that he is asked to stay away for a month and asked to join back then the gap will be considered as artificial.
From India, Kannur
From India, Kannur
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From Vietnam, Hanoi
shell shockers
From Vietnam, Hanoi
Dear All,
I have gone through the whole thread and realized that the emphasis of the worth members is on "break in service". Please understand that as per gratuity act "break in service" is allowed with certain terms. To make it further clear we have to look into the definition of "Continuous Service" in the Act:-
2A. Continuous Service.- (1) For the purpose of this Act-
(1) An employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act;
(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, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) two hundred and forty days, in any other case:
(b) for the said period of six months if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than-
(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) one hundred and twenty days, in any other case;
1[Explanation.- For the purpose of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which-
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;
(ii) he has been on leave with full wages, earned in the previous year;
(iii) he has been absent due to temporary disablement caused by
accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so,
however, that the total period of such maternity leave does not
exceed twelve weeks].
(3) 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.]
Now lets come to the issue at hand. If the person has taken full and final each year and again engaged right after a few days (be it 1 month or even 2 for that matter) then it may be argued that it is being done to evade the otherwise due applicability of gratuity payment to that employee. Please note he has to show that he worked only for 240 days in each year of service for 5 years, which as per you he did. Untill there is a gap of a full year between those 5 years you cannot say that his services were not continuous. Also untill his full and final consists of Payment of Gratuity as well, you cannot deprive the employee of his statutory right of gratuity and that reminds me of a cardinal and very important principal of legal jurisprudence that what cannot be done directly cannot be done indirectly either. You cannot deprive someone of their statutory right. A statutory right cannot be given away by even signing any contract. There is a protection under Law against it. Also the person follows the rules of your school he is an employee and covered under the definition of employee as given below:-
2 (e) “employee” means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are
express or implied, in any kind of work, manual or otherwise, in
or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment
to which this Act applies, but does not include any such person
who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules
providing for payment of gratuity;
As per the definition which is very wide any person employed for wages is entitled to get the Gratuity. Hence it would be advisable to pay him gratuity.
From India, New Delhi
I have gone through the whole thread and realized that the emphasis of the worth members is on "break in service". Please understand that as per gratuity act "break in service" is allowed with certain terms. To make it further clear we have to look into the definition of "Continuous Service" in the Act:-
2A. Continuous Service.- (1) For the purpose of this Act-
(1) An employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act;
(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, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) two hundred and forty days, in any other case:
(b) for the said period of six months if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than-
(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) one hundred and twenty days, in any other case;
1[Explanation.- For the purpose of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which-
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;
(ii) he has been on leave with full wages, earned in the previous year;
(iii) he has been absent due to temporary disablement caused by
accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so,
however, that the total period of such maternity leave does not
exceed twelve weeks].
(3) 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.]
Now lets come to the issue at hand. If the person has taken full and final each year and again engaged right after a few days (be it 1 month or even 2 for that matter) then it may be argued that it is being done to evade the otherwise due applicability of gratuity payment to that employee. Please note he has to show that he worked only for 240 days in each year of service for 5 years, which as per you he did. Untill there is a gap of a full year between those 5 years you cannot say that his services were not continuous. Also untill his full and final consists of Payment of Gratuity as well, you cannot deprive the employee of his statutory right of gratuity and that reminds me of a cardinal and very important principal of legal jurisprudence that what cannot be done directly cannot be done indirectly either. You cannot deprive someone of their statutory right. A statutory right cannot be given away by even signing any contract. There is a protection under Law against it. Also the person follows the rules of your school he is an employee and covered under the definition of employee as given below:-
2 (e) “employee” means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are
express or implied, in any kind of work, manual or otherwise, in
or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment
to which this Act applies, but does not include any such person
who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules
providing for payment of gratuity;
As per the definition which is very wide any person employed for wages is entitled to get the Gratuity. Hence it would be advisable to pay him gratuity.
From India, New Delhi
Judgement 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)], if any Person worked 240 days in a year that will assumed a whole year. As the definition of continuous service in Industrial Dispute Act and Payment of Gratuity Act are 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."
From India, Ghaziabad
From India, Ghaziabad
If a contract employee is hired for an year and contract terminated after an year and the same employee is hired again after a month and placed at the services of the same principal employer, and like this the same pattern of employment continued for 5 years ( 5 year of contract service with an intermittent gap of one month in between one year and the extended year) the contract employee will be eligible for gratuity in the event of contract employee quits service after 5 years or his contractor terminates his service after 5 years .
Senprithvib6
From India, Chennai
Senprithvib6
From India, Chennai
confutation to previous post Rationale : The contract employer is deemed to have continued on those days of gap/break during the stretch of 5 years . senprithvib6
From India, Chennai
From India, Chennai
What is break in service with regard to payment of gratuity act
Assuming an employee who joined the service of an employer on 01.01.2015 and resigns his job and get relieved on 31.12.2019, and during his tenure he had unauthorized absented from work for not less than an average of 150 days every year ( i.e years 01.01.2015 to 31.12.2015, 01.01.2016 to 31.12.2016, 01.01.2017 to 31.12.2017, 01.01.2018 to 31.12.2018 and 01.01.2019 to 31.12.2019 , in which case he would have been attended 210 days per year as against 240 days as contemplated under payment of Gratuity act so as to constitute " continuous service" for being eligible for gratuity in every year .
However if the employee goes Scot free in as much as the employer simply chooses to condone/warn his absence for each spell of absence, he is eligible for gratuity ,
Rationale :
Unless the employee is issued with an order to an effect that the days absence of each spell has been treated as break in service / service interrupted and thus declare that he has not put in continuous service as per statute , he is eligible for gratuity on completion of 5 years .
Again before passing such an order , the employer should have an enabling provision either in the certified standing orders applicable to employees or from the long term settlement if any . This provision should be quoted in the written order being issued to the concerned employee. You are obliged to prove that the employee had unauthorizedly absented from work for such spells as pointed out in the orders should a demand arise from the concerned employee.
Senprithvib6
From India, Chennai
Assuming an employee who joined the service of an employer on 01.01.2015 and resigns his job and get relieved on 31.12.2019, and during his tenure he had unauthorized absented from work for not less than an average of 150 days every year ( i.e years 01.01.2015 to 31.12.2015, 01.01.2016 to 31.12.2016, 01.01.2017 to 31.12.2017, 01.01.2018 to 31.12.2018 and 01.01.2019 to 31.12.2019 , in which case he would have been attended 210 days per year as against 240 days as contemplated under payment of Gratuity act so as to constitute " continuous service" for being eligible for gratuity in every year .
However if the employee goes Scot free in as much as the employer simply chooses to condone/warn his absence for each spell of absence, he is eligible for gratuity ,
Rationale :
Unless the employee is issued with an order to an effect that the days absence of each spell has been treated as break in service / service interrupted and thus declare that he has not put in continuous service as per statute , he is eligible for gratuity on completion of 5 years .
Again before passing such an order , the employer should have an enabling provision either in the certified standing orders applicable to employees or from the long term settlement if any . This provision should be quoted in the written order being issued to the concerned employee. You are obliged to prove that the employee had unauthorizedly absented from work for such spells as pointed out in the orders should a demand arise from the concerned employee.
Senprithvib6
From India, Chennai
Amount of gratuity is directly proportional to the tenure of service, and also to the last drawn salary. The gratuity is given at the rate of 15 days of last drawn salary for each year of service. And the salary that is considered for the calculation of gratuity is the last drawn salary that includes basic pay and dearness allowance. It is typically calculated according to this formula: Last drawn salary (basic salary plus dearness allowance) X number of completed years of service X 15/26. According to this formula, the time period of over six months or more is considered as one year. This means if you have completed five years and seven months of service, the number of years would be considered as six years for calculation of gratuity benefit. On the other hand, if the service period is five years and five months, for gratuity calculation will be considered as five year
From India, Aizawl
From India, Aizawl
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Fixed Term Contract Employees to get Gratuity.docx
Gratuity notification amendment in definition of employees.pdf