From "varsha_karalkar" : Hi,
I have a query related to gratuity payment as mentioned below:
1. What is the minimum year of service required for payment of Gratuity ?
2. According to LIC, if an employee completes minimum 4 years 8 months of service he / she is eligible for Gratuity. Is it correct as per laws ?
3. If we do not pay employees who completed 4 years 11 months 29 days of service, can the employee take legal action against the Company ?
4. Can we get any lawyer (best for labour laws) to give us in writing all this above.
Thank you in advance.
Best Regards,
Varsha Karalkar

16th April 2007 From India, Mumbai

ssehgal 2
Hi Friend,
You put a marvellous question here. I have some suggestions which you can have in your mind which solving the puzzle:
1. Minimum yera of service is 05 years; means the concern must have perform minimum 240 working days in a year.
2. Yes, As per law; the LIC provision is absolutely correct. Even the same is required by an Industry.
3. Yes, The concern may take the legal aid against this provision which is illegal.
4. As such there is no need to take the help of an advocate exclusive for this issue.
If you need any more clearification please let me know.
Thanks
SSehgal

17th April 2007 From India, Mumbai
hemantsailor 1
hi varsha,

ssehgal is right,

As per Section: 2A

Continuous service means.

For the purposes 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 order, 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;

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 applicab1c 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.

regards

hemant sailor
23rd April 2007 From India, New Delhi
maheshppatel
I have query related to entitlement of Gratuity payment.
Whether MD,Directors,partners are entitlement for Gratuity?.
Their appointment as per Conpany act & they are getting remmuneration aslo.
Regards
Mahesh Patel
28th May 2008 From India, Ahmadabad
Madhu.T.K 2269
In order to be eligible for gratuity one has to be with an employer for not less than 5 years. For calculating the amount of gratuity only a fraction of year exceeding six months will be taken as one year. As such one who has 6 years and 7 months service will get gratuity for 7 years, but one who has 6 years and 5 months will get only 6 years gratuity.
240 days is taken as criteria for deciding one's continuity of service. As such one who has worked below the ground for 190 days and above the ground for 240 days will be considered as having continuous service for that year.
The MD/Director/ Partner will be eligible for gratuity if they are in receipt of salary from the organisation, otherwise they are not eligible for gratuity because gratuity is based on last drawn salary.
Regards,
Madhu.T.K
29th May 2008 From India, Kannur
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