Dear Team,
Thanks for your valuable information, I am looking for support on knowing that if a employee worked for 5 years and put paper on the same month for interest to resign and he is in notice period ,whether he is eligible for Gratuity?
-Priya
From India, Bangalore
Thanks for your valuable information, I am looking for support on knowing that if a employee worked for 5 years and put paper on the same month for interest to resign and he is in notice period ,whether he is eligible for Gratuity?
-Priya
From India, Bangalore
15
This topic came up for discussion in 2008. Hence there could be different interpretations on this. In a recent judgement of Kerala High Court which followed the Madras High Court verdict in Mettur Beardsel's case, it has been held that working of 240 days in the fifth year would make an employee eligible for gratuity. Following these verdicts no change has been made to Payment of Gratuity Act by means of an amendment. Therefore, barring Kerala and Tamil Nadu, if any employer or any Controlling Authority under the Payment of Gratuity Act, viz, the Labour Officer, refuses the claim for gratuity saying that as per law, an employee who has put in 5 years continuous service would only be entitled to gratuity and the interpretations of High Court will not bind in individual cases, the employee will have to move to court. If your court interprets that 240 days is the days work to be put in over a period of 12 months in order to make the service continuous and uninterrupted, and the Act has not made it clear that a person who has not completed 5 years of service from the date of joining but has worked for 240 days in each year including the fifth year in which the gratuity has been claimed as due will not be eligible for gratuity, what will be the next step?
It is true that legislations are meant for the beneficiaries. Therefore, if the employer is ready to give gratuity to an employee who has not worked for 5 years, it is well and good. Similarly, the Controlling Authorities may also follow the same interpretations about gratuity qualifying service. But you cannot say that 240 days in the fifth year will qualify for gratuity until and unless the Act is so amended.
Madhu.T.K
From India, Kannur
It is true that legislations are meant for the beneficiaries. Therefore, if the employer is ready to give gratuity to an employee who has not worked for 5 years, it is well and good. Similarly, the Controlling Authorities may also follow the same interpretations about gratuity qualifying service. But you cannot say that 240 days in the fifth year will qualify for gratuity until and unless the Act is so amended.
Madhu.T.K
From India, Kannur
Hi Madhu,
Your post is quite confusing and provides the interpretation, as if the law does not provide for 240 days of the year to be treated as a completed year for the purpose.
The definition, as in section 2(c) states:
"(c) "continuous service" means uninterrupted service and includes service which is interrupted by sickness, accident, leave, layoff, strike or a lock-out or cessation of work not due to any fault of the employee concerned, whether such interrupted or interrupted service was rendered before or after the commencement of this Act."
"Explanation I.- In the case of an employee who is not in uninterrupted service for one year, he shall be deemed to be in continuous service if he has been actually employed by an employer during the twelve months immediately preceding the year for not less than-"
"(i) 190 days, if employed below the ground in a mine, or"
"(ii) 240 days, in any other case, except when he is employed in a seasonal establishment."
THE DEFINITION IS QUITE CLEAR.
However, can you please make it clear, which type of amendment you want for which part of the definition, as per your interpretation?
From India, Delhi
Your post is quite confusing and provides the interpretation, as if the law does not provide for 240 days of the year to be treated as a completed year for the purpose.
The definition, as in section 2(c) states:
"(c) "continuous service" means uninterrupted service and includes service which is interrupted by sickness, accident, leave, layoff, strike or a lock-out or cessation of work not due to any fault of the employee concerned, whether such interrupted or interrupted service was rendered before or after the commencement of this Act."
"Explanation I.- In the case of an employee who is not in uninterrupted service for one year, he shall be deemed to be in continuous service if he has been actually employed by an employer during the twelve months immediately preceding the year for not less than-"
"(i) 190 days, if employed below the ground in a mine, or"
"(ii) 240 days, in any other case, except when he is employed in a seasonal establishment."
THE DEFINITION IS QUITE CLEAR.
However, can you please make it clear, which type of amendment you want for which part of the definition, as per your interpretation?
From India, Delhi
I meant to say that a provisio to be added to section 4(1) of the Payment of Gratuity Act whereby to clarify that 240 or 190 days, as the case may be, shall constitute eligible service in the fifth year. At present it is said that gratuity shall be payable to an employee after he has rendered continuous service of NOT LESS THAN FIVE YEARS. This section makes it obligatory that in order to be ELIGIBLE for gratuity one should have worked for 5 years. The same interpretation was given by High Court of AP in P Raghavalu & Sons Vs Addl. Labour Court. Though Madras High Court and Kerala High Court have produced superseding judgements with a different interpretations and rejecting the judgement of Hyderabad High Court saying that it was basically based on AP Shops and Commercial Establishments Act and not merely on Payment of Gratuity Act, we cannot rule out the significance of this judgement unless we have a clarification as to the eligibility of gratuity to an employee who has not rendered five years of service.
Madhu.T.K
From India, Kannur
Madhu.T.K
From India, Kannur
Hi Madhu,
Interpretations differ from case to case depending upon the smartness or ignorance/laziness of the lawyers fighting the case, as judgment of the judges tilt towards the submissions of the lawyers who can convince the judge an any case. You can very well understand that point if contradoctory judgments exist in law. Otherwise, the provision of section is very much clear on the definition of 5 years of service. Provisos every here and there is quite unwarranted, when the section of law makes cear about the provision.
From India, Delhi
Interpretations differ from case to case depending upon the smartness or ignorance/laziness of the lawyers fighting the case, as judgment of the judges tilt towards the submissions of the lawyers who can convince the judge an any case. You can very well understand that point if contradoctory judgments exist in law. Otherwise, the provision of section is very much clear on the definition of 5 years of service. Provisos every here and there is quite unwarranted, when the section of law makes cear about the provision.
From India, Delhi
Hello myself karan singh my joining date is 19-april-2011 and i still working in organization.
i have completed 5 years 4 month.
so will you please confirm me m i eligible to gratuity.
someone said to me you are completed 5 years 6 month than you are eligible.
so please confirm me the status of gratuity.
do the needfull
From India, Delhi
i have completed 5 years 4 month.
so will you please confirm me m i eligible to gratuity.
someone said to me you are completed 5 years 6 month than you are eligible.
so please confirm me the status of gratuity.
do the needfull
From India, Delhi
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Less than 5 years service - Eligibility for payment of gratuity.pdf