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firstname.lastname@example.orgDear It si not possible to obtain gratuty , as minimum 5 yrs of unobstructed service is required for getting the benefits of gratuity. regards ashish banka
From India, Calcutta
Pradip-SDear H. Thakur,
As per gratuity act, minimum 5 years of service is required for the eligibility of gratuity but in case of death the employee will be eligibile for gratuity even if he has not completed 5 years of service.
Gratuity calculation formula = (monthly salary x 26)/15 days x no. of years of service.
From India, Mumbai
It is of course possible to receive gratuity even if an employee has not served continuously for 5 years provided it is a case of Death and Total Permanent Disablement( Implies that a person is no longer employable in any trade).
Except in case of death & TPD , Gratuity is payable only after 5 years of continuous service.
The liability of the employer is restricted to make payment only at the rate 15 days basic+ DA(If it was paid to the employee before death/disablement) for each completed year of service.
From India, Rohtak
Let us be specific, Salary is BASIC + DA alone.
For the Gratuity calculation the gratuity calculation formula is
1. Basic/26 x 15 days x number of years of service
2. BASIC + DA (Last Pay drawn) X 15 /26 X No. OF YEARS of service
The Gratuity calculation is done as per the last average remuneration drawn and time in years served by an employee.
From India, Madras
Gratuity=(monthly salary/26) x 15days x No. of yrs of service
1) Gratuity is payable on death OR on continuous service of 5yrs and retirement/resignation/superannuation
2) Gratuity=(monthly salary/26) x 15days x No. of yrs of service
3) On Death he/she gets his/her gratuity under the provisions of the Gratuity Act as passed by the Law of the Land
for complete abstract read below:
ABSTRACT UNDER PAYMENT OF GRATUITY ACT, 1972
1. Extent of the Act: - The Act extends to the whole of India.
Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir [Section 1(2)].
2. To whom the Act Applies: - The Act applies to (a) every factory mine, oilfield, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months; and (c) such other establishments or class of establishment, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months as the Central Government may, by notification, specify in this behalf [Section 1(3)].
3. Definition: - (a) “Appropriate Government” means (i) in relation to an establishment:
(a) Belonging to, or under the control of the Central Government
(b) Having branches in more than one State.
(c) Of a factory belonging to, or under the control of, the Central Government.
(d) Of a major port, oilfield, railway or mine company, the Central Government.
i. In any other case, the State Government [Section 2(a)]
ii. “Completed year of service,” means continuous service for one year. [Section 2(b)].
iii. “Continuous Service” means uninterrupted service and includes service which is interrupted by sickness, accident, leave, lay-off, strike or a lock-out or ceasetion of work not due to any fault of the employees concerned, whether such un-interrupted or interrupted service was rendered before or after the commencement of this Act.
Explanation: 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 employed 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.
Explanation: an employee of a seasonal establishment shall be deemed to be in continuous service if he has actually worked for not less than seventy-five per cent of the number of days in which the establishment was in operation during the year. [Section 2(d)]
iv. “Controlling authority” means an authority appointed by an appropriate Government under Section 3 [Section 2(d)]
v. “Family” in relation to an employee, shall be deemed to consist of -
a. In the case of a male employee, himself, his wife, is children, whether married or unmarried, his dependent parents and the widow and children, of his predeceased son, if any.
b. In the case of female employee, herself, her husband, her children, whether married or unmarried, her dependent parents and dependent parents of her husband and dither widow and children of her preceased son, if any.
Provided that if a female employee, by a notice in writing to the controlling authority, expresses her desire to exclude her husband from her family, the husband and his dependent parents shall not longer be deemed, for the purposes of his Act, to be included in the family of such female employee unless the said notice is subsequently withdrawn by such female employee.
4. Nomination: (1) Each employee, who has completed one year of service, after the commencement of the Payment of Gratuity (Central) Rules, 1972 shall make within thirty days of completion of one year of service, a nomination. [Section 6’1(read with Rule 86(1)]
(2) If an employee has a family at the time of making a nomination shall be made in favour of one or more members of his family and any nomination made by such employee in favour of a person who is not a member of his family shall be void. [Section 6(3)]
(3) If at the time of making a nomination, the employee has no family, the nomination can be made in favour of any person or persons, but if the employee subsequently acquires a family, such nomination shall forthwith become invalid and the employee shall make thin 90 days fresh nomination in favour of one or more members of his family. [Section 6(4) read with Rule 6(3)].
(4) A nomination or a fresh nomination or a notice of modification of nomination shall be signed by the employee or, if illiterate, shall bear his thumb-impression in the presence of two witness, who shall also sign declaration to that effect in that nomination, fresh nomination or notice of modification of nomination as the case may be [Rule 6(5)]
(5) A nomination may, subject to the provision of sub-sections (3) and (4) of Section 6 be modified by an employee any time after giving to his employer a written notice of his intention to do so. [Section 6(5)]
(6) A nomination or fresh nomination or notice of modification of nomination shall take effect from the date of receipt of the same by the employer [Rule 6(6)]
5. Application for gratuity: - (1) an employee who is eligible for payment of gratuity under the Act, or nay person authorized, in writing, to act on his behalf, shall apply ordinarily within thirty days from the date gratuity become payable.
Provided that where the date of superannuation or retirement of an employee is known, the employee may apply to such employer before thirty days of the date of superannuation or retirement [Rule 7(1)]
(2) A nominee of an employee who is eligible for payment of gratuity shall apply, ordinarily within thirty days from the date of gratuity became payable to him, to the employer [Rule 7(2)]
(3) A legal heir of an employee who is eligible for payment of gratuity shall apply, ordinarily within thirty days from the date of gratuity became payable to him, to the employer [Rule 7(3)]
6. Payment of gratuity: - (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years.
(a) On his superannuation, or
(b) On his retirement or resignation, or
(c) On his death or disablement due to accident or disease.
Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement.
Disablement means such disablement, which incapacitates an employee for the work, which he was capable of performing before the accident or disease resulting in such disablement [Section 4(1)]
(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days’ wages based on the rate of wages last drawn by the employee concerned;
Provided that in the case of piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account.
Provided further that in the case of an employee employed in a seasonal establishment, the employer shall pay the gratuity at the rate of seven days’ wages for each season [Section 4(2)]
(3) The amount of gratuity payable to an employee shall not exceed twenty months wages [Section 4(3)]
7. Forfeiture of gratuity: - (1) The gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused.
(2) The gratuity payable to an employee shall wholly e forfeited.
(a) If the services of such employee heave been terminated for his riotous or disorderly conduct or of nay other act of violence on his part, or
(b) If the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment [Section 4(6)]
8. Notice of opening, change or closure of the Establishment: (1) A notice shall be submitted by the employer to the controlling authority of the area within thirty days of any change in the name, address, employer or nature of business [Rule 3(2)]
(2) Where an employer intends to close down the business he shall submit a notice to the controlling authority of the area at least sixty days before the intended closure [Rule 3(3)]
9. Application to Controlling Authority of direction – If an employer
(i) Refuses to accept a nomination or to entertain an application for payment of gratuity, or
(ii) Issues a notice either specifying an amount of gratuity which is considered by the applicant less than what is payable or rejecting eligibility to payment of gratuity, or
(iii) Having received an application for payment of gratuity fails to issue within fifteen days, the claimant employee, nominee, or legal heir, as the case may be within ninety days of the occurrence of the course for the application, apply to the controlling authority for issuing a direction under sub-section (4) of Section 7 with as many extra copies as are the opposite party.
Provided that the controlling authority may accept any application on sufficient cause being shown by the applicant, after the expiry of the period of ninety days [Rule 10]
10. Appeal: Any person aggrieved by an order of the controlling authority may within sixty days from the date of the receipt of the order, prefer an appeal to the Regional Labour Commissioner (Central) of the area, who has been appointed as the appellate authority by the Central Government.
Provided that the appellate authority may, if it is satisfied that the applicant was prevented by the sufficient cause from an appeal within the said period of sixty days, extend the said period by a further period of sixty days [Section7 (7)]
11. Machinery for enforcement of the Act or Rules in Central sphere – All Assistant Labour Commissioner (Central) have been appointed as Controlling Authorities and all the Regional Labour Commissioners (Central) As Appellate Authorities.
12. Power of the Controlling Authorities – The Controlling Authority for the purpose of conducting an inquiry as to the amount of gratuity payable to an employee or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, shall have same powers as are vested in vested in a court, the Code of Civil Procedure, 1908, in respect of the following matters, namely :-
13. Recovery of gratuity: If the amount of gratuity payable is not paid by the employer, within the prescribed time, to the person entitled thereto the controlling authority shall, on an application made to it in this behalf by the aggrieved person, issue a certificate for that amount to the Collector, who shall recover the same, together with compound interest thereon at the rate of nine per cent per annum, from the date of expiry of the prescribed time, as arrears of land revenue and pay the same to the person entitled thereto (Section 8)
14. Protection of gratuity - No gratuity payable under the Payment of Gratuity Act and the rules made there under shall be liable to attachment in execution of any decree or order to any civil, revenue or criminal court [Section 13]
15. Penalties for offences – (1) Whoever, for the purpose of avoiding any payment to be made by himself or of enabling any other persons to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both [Section 9(1)]
(2) An employer who contravenes, or makes default in complying with, any of the provisions of the Act or any rule or order made thereunder shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both
Provided that if the offence relates to non-payment of any gratuity payable under the Payment of Gratuity Act, the employer shall be punishable with imprisonment for a term which shall not be less than three months unless the court trying the offence for reasons to be recorded by it in writing is of opinion that a lesser terms of imprisonment or the imposition of a fine would meet the ends of justice [Section 9(2)]
16. Display of Notices: - The employer shall display conspicuously a notice at or near the main entrance of the establishment in bold letters in English and in the language understood by the majority of the employees specifying the name of the Officer with designation authorized by the employer to receive on his behalf notices under the Payment of Gratuity Act or the rules made thereunder [Rule 4]
17. Display of Abstract of the Act and Rules: The employer shall display an abstract of the Payment of Gratuity Act and the rules made thereunder in English and in the language understood by the majority of the employees at a conspicuous place at or near the main entrance of the establishment [Rule 20].
From India, Mumbai
pon1965Gratuity act 1972 syas;
"Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement:"
From India, Lucknow
HR practicYes employee who worked for 1 year or less if demanded eligible for Gratuity in case of death,
Age, salary, numbers of year in Job etc. all are consider for calculation base,
Five years Law applicable in case of employee live,
From India, Ahmadabad
John DavidDear Thakur,
As per act minimum 5 years of service is required for the eligibility of gratuity for the live employees,
but in the case of death 5 years of service is not required.
Gratuity calculation formula for death case = (Basic+(D.A. if applicable) x 15) / 26 x (Date of jioning to till his superannuation i.e. upto age of 58 years)
Example : Date of Birth is 01-May-1965 , Date of Joining is 01-May-1990 & Date of Death is 31-Oct-1991.
Calculation as per above example : (8000 x 15) / 26 x 33 = 1,52,308/- to pay as Gratuity to the deceased employee.
From India, Madras
- I wonder how members are confidently saying things which are untrue and not legal. They need to have deep legal knowledge or at least they should refer books before posting, to verify correctness of information. This is very irresponsible on their part to post incorrect and misleading information.
- In case of Death condition of 5 years service for payment of gratuity is not applicable. There is specific provision in act i.e.: 'Gratuity is payable on employees death or disablement due to accident or disease. Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement.'
From India, Pune
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