Hi I have completed 1o yrs in private school organisation.But school denied to give gratuity than i put case to education dept in punjab now they asked me that school has given the letter that person should have age of 58 or completed 20 years in organisation than they are eligeble.
Now education dept asked me if you have law orders or any written information than provide us.
Please help if anybody help me.
Regards
Jasmeet
8427028087
From India, Delhi
1Now education dept asked me if you have law orders or any written information than provide us.
Please help if anybody help me.
Regards
Jasmeet
8427028087
From India, Delhi
This is not a subject of education department but it is a subject of your area Labour Officer. You may approach the Labour department. They may not require any citation or bare Act to take action about the school.
From India, Kannur
From India, Kannur
Dear All.
While working with one of private company, it was practice that, even in case of eligible permanent workers who has rendered service more than 5 years, they considered those years in which the worker has physically present for 240 days. The management's interpretation was that, the gratuity is payable according to Section 2 A (2) (a) (ii) of the Payment of Gratuity Act, extract of the clause is shortly stated below.
[2A. Continuous service.—For the purposes of this Act,—
(1) an employee shall be said to be in continuous service ............................
(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,....................................
(ii) two hundred and forty days, in any other case;
After reference of provisions of the Act & some case laws as well as discussions had with seniors, my assumptions is, the above clause may applicable to Badali/Temporary workers who are working in absence of permanent worker for time being.
My query is, Is it legal and proper to apply above clause of 240 days actually worked in each year for eligibility of gratuity payment to permanent employees ? Is there any case law in which Hon'ble Court may have explain in details or made interpretation on the above clause is not applicable for the gratuity payment of permanent worker ?
Shaikh. I.Y.
Manager HR.
From India, Nashik
While working with one of private company, it was practice that, even in case of eligible permanent workers who has rendered service more than 5 years, they considered those years in which the worker has physically present for 240 days. The management's interpretation was that, the gratuity is payable according to Section 2 A (2) (a) (ii) of the Payment of Gratuity Act, extract of the clause is shortly stated below.
[2A. Continuous service.—For the purposes of this Act,—
(1) an employee shall be said to be in continuous service ............................
(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,....................................
(ii) two hundred and forty days, in any other case;
After reference of provisions of the Act & some case laws as well as discussions had with seniors, my assumptions is, the above clause may applicable to Badali/Temporary workers who are working in absence of permanent worker for time being.
My query is, Is it legal and proper to apply above clause of 240 days actually worked in each year for eligibility of gratuity payment to permanent employees ? Is there any case law in which Hon'ble Court may have explain in details or made interpretation on the above clause is not applicable for the gratuity payment of permanent worker ?
Shaikh. I.Y.
Manager HR.
From India, Nashik
Very simple, you may just read 240 days as 240 paid days. That means this 240 days should include all weekly off days, paid leaves and holidays. Obviously, the permanent employees will be paid for 30/31 days a month, they will be eligible for holidays with pay, they will also be given paid leaves like CL or PL and of course in the case of female employees, the maternity leave days also. Therefore, it is better to take 240 as 240 paid days. Even for a permanent worker/employee who fails to meet this 240 targets by way of regular absenteeism, being absent without leave etc gratuity shall be refused for such years for which the qualifying 240 paid days is not there.
From India, Kannur
From India, Kannur
I think till the issue is not clear, as per the provisions of the Act, in case of permanent workers where his total paid days are below 240 days because of absenteeism, in that case management has conduct domestic enquiry and if the charges of absenteeism leveled against him are proved the decision of break in services has to be taken. Then only the particular year in which the worker has not get 240 paid days could not considered for gratuity.
Shaikh.I.Y.
Manager HR.
From India, Nashik
Shaikh.I.Y.
Manager HR.
From India, Nashik
Employee has worked for 8 years 6 months 27 days. what would be completed years, is it 8 years or 9 years. I have gone through in this forum where you team are referring sec 4 (2) of POG act, 1972 for completed years of service. however if we go by sec 4 (1) of POG act 1972 where it is specifically mentioned that "payable to employee after he has rendered continuous service'' and there is definition has given for continuous service in the act. so accordingly employee has to complete 240 days in order to consider completed one year in the gratuity calculation.
If employee is not fulfilling the requirement give in the sec 4 (I) of POG act 1970 so what is logic of sec 4(2) of POG act 1970.
Can anyone please explanation on the above points? If anyone can give any case study/court ruling/judgement related to this matter, really appreciated..
From India
If employee is not fulfilling the requirement give in the sec 4 (I) of POG act 1970 so what is logic of sec 4(2) of POG act 1970.
Can anyone please explanation on the above points? If anyone can give any case study/court ruling/judgement related to this matter, really appreciated..
From India
Section 4(2) is a direction to calculate gratuity.Once an employee becomes eligible for gratuity, while calculating the year of service fraction of a year exceeding 6 months should be rounded off to one year. That means, in your example, if you have 8 years, 6 months and 27 days of service, the eligible service will be 9 years.
The issue of 240 days has nothing to do do with the above. 240 days is the bare minimum paid days required for an employee even to become eligible for gratuity. That means if you have lots of unpaid leaves in each year as a result of which you fail to get 240 days in a year, such years will not be counted for gratuity calculation. Continuing the above example, say, out of 8 years, there was a year, say 2017, in which you did not attend to work for a few months but could attend only for 220 days in total and the absence remained unregularised, then that year will not be taken for gratuity calculation. at that time you cannot say that you had worked for more than six months in that year, 2017, you should get the benefit of one year gratuity. This fraction matter appears only in the last year and not in between the service.
From India, Kannur
The issue of 240 days has nothing to do do with the above. 240 days is the bare minimum paid days required for an employee even to become eligible for gratuity. That means if you have lots of unpaid leaves in each year as a result of which you fail to get 240 days in a year, such years will not be counted for gratuity calculation. Continuing the above example, say, out of 8 years, there was a year, say 2017, in which you did not attend to work for a few months but could attend only for 220 days in total and the absence remained unregularised, then that year will not be taken for gratuity calculation. at that time you cannot say that you had worked for more than six months in that year, 2017, you should get the benefit of one year gratuity. This fraction matter appears only in the last year and not in between the service.
From India, Kannur
Gratuity – Continuous service interpretation for Technology / IT / BPO companies
The continual years of service eligibility for gratuity mandate a minimum of five years which is unaltered (status quo remains) per the Payment of Gratuity Act.
The legal interpretation for continuous working days to be applied with a difference between “under the ground” (mining, under the sea, plantations) which is further interpreted as “hazardous job nature”; whereas “above the ground” (other) establishments represents “unhazardous job nature” - the key differentiator for the purpose of deciding the “no of days” of continuous service.
190 days or less than 6 days working per week represents an “employment in hazardous working / occupational hazard jobs by nature” and hence a resultant reduced gratuity eligible days/working days.
This is the intent of the legal script notified under section 2A, 2 (i) within the same clause; if the “number. of working days at less than 6 days” was purported for “any industry” the clause would have been carefully differentiated.
So, any wrong ideation to isolate the clause of “less than 6 working days” is irrational to relate to “above the ground” non-hazardous jobs – Technology / IT / BPO companies fall under this category, they provide “safe jobs” as much five days working was intended for a lifestyle balancing amongst such industry as a “best practice” and not for any occupational hazard-related.
Hence, for Technology / IT / BPO companies, from a computation point of view, any consecutive 8 worked months period post 4 years of continuous service shall make the employee eligible for gratuity. The consecutive eight months computes to 240 paid days.
Note: So far, there has been no case laws notified for the above 190/less than 6 days work week for Non-hazardous jobs (scenario) in both HC / SC; the last being a mandate to adhere to 4 years and 240 days as minimum criteria.
Hope, hereon, all legal intellectual forums, social media forums ensure depth interpretations and not a mislead maneuvers.
From India, Puducherry
The continual years of service eligibility for gratuity mandate a minimum of five years which is unaltered (status quo remains) per the Payment of Gratuity Act.
The legal interpretation for continuous working days to be applied with a difference between “under the ground” (mining, under the sea, plantations) which is further interpreted as “hazardous job nature”; whereas “above the ground” (other) establishments represents “unhazardous job nature” - the key differentiator for the purpose of deciding the “no of days” of continuous service.
190 days or less than 6 days working per week represents an “employment in hazardous working / occupational hazard jobs by nature” and hence a resultant reduced gratuity eligible days/working days.
This is the intent of the legal script notified under section 2A, 2 (i) within the same clause; if the “number. of working days at less than 6 days” was purported for “any industry” the clause would have been carefully differentiated.
So, any wrong ideation to isolate the clause of “less than 6 working days” is irrational to relate to “above the ground” non-hazardous jobs – Technology / IT / BPO companies fall under this category, they provide “safe jobs” as much five days working was intended for a lifestyle balancing amongst such industry as a “best practice” and not for any occupational hazard-related.
Hence, for Technology / IT / BPO companies, from a computation point of view, any consecutive 8 worked months period post 4 years of continuous service shall make the employee eligible for gratuity. The consecutive eight months computes to 240 paid days.
Note: So far, there has been no case laws notified for the above 190/less than 6 days work week for Non-hazardous jobs (scenario) in both HC / SC; the last being a mandate to adhere to 4 years and 240 days as minimum criteria.
Hope, hereon, all legal intellectual forums, social media forums ensure depth interpretations and not a mislead maneuvers.
From India, Puducherry
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