Labour Law & Hr Consultant
Industrial Relations And Labour Laws
Harsh Kumar Mehta
Consultant In Labour Laws/hr
Asso.prof.(commerce & Management) Pg
1st July 2014 From India, Kannur
Note: i have worked for 278 days in forth year i.e. 4-5. whether i can submit FORM F
I need clarification on which basic gratuity is calculated in our company. As per 1972 gratuity act
1. On the completion of 5 years of service (with out loss of pay i.e. informed and uninformed in the service)
2. On the completion of 5 years of service (with loss of pay i.e. informed and uninformed in the service)
3. On the completion of 5 years of service including notice period (with or without loss of pay i.e. informed and uninformed in the service)[/QUOTE]
1st July 2014 From India, Bangalore
There is no separate treatment with regard to notice period, loss of pay etc. If eligible for gratuity you will get it and what makes you eligible to gratuity is what I have stated above, ie, continuous service (without loss of pay/ paid days of 240 days in a year) of five years
2nd July 2014 From India, Kannur
Almost all employers would treat the "unauthorised leave" (loss of pay, unauthorised leave = absent) as a break-in-service. We have no clue from you as to how your LOP days were treated in your service conditions. If they condoned this period and ratified later on as 'part of LOP leave' then you might have a chance to have it reckoned as 'continuous service' . And also you mentioned as 'informed' and 'uninformed' leave which requires clarity. Moreover if it were to be a continuous LOP of 102 days in a single calendar/service year there is no chance of clocking stipulated 240 days of working days (including holidays) in every year and for 5 years to be eligible for gratuity. Better get these sorted out at your office.
2nd July 2014 From India, Bangalore
Greetings of the day !!!!
If a retired person , engaged again in a contractual service for consecutive five years . Can he eligible for Gratuity .
His age is nearly 66 years . During his actual retirement he got his due gratuity at the age of 60 years .
Now can he claim it again after completion of 5 years in a contractual service.
3rd July 2014 From India, Bangalore
For being eligible to gratuity, it is not necessary that one should be in regular rolls of the company but it is available to those who are employed on fixed term contract.
Please find the two attachments which support the above.
3rd July 2014 From India, Kannur
"2.The Supreme Court had in its judgment in the case of Lalappa Lingappa v. Lakshmi Vishnu Textile Mills, Sholapur [ 1981(1) LLJ.308 ] held that in terms of the existing definition of "continuous service" in sec.2(c) of the Act, the permanent employees were not entitled to payment of gratuity for the years they remained absent without leave and had actually worked for less than 240 days in a year. It has been represented that the enforcement of this ruling resulted in denial of gratuity to a number of employees, whose short term absence had remained unregularised due to lack of appreciation of its significance for the purpose of working out their entitlement to gratuity. It is, therefore, now proposed to amend the definition of "continuous service" suitably and to specifically provide that a period of absence in respect of which no punishment or penalty has been imposed would not operate to interrupt the continuity of service for the purpose of payment of gratuity."
In the light of the above reasons, if we analyse Section 2-A of the Act, it would be easily discernible that
ss(1) of sec.2 creates a legal fiction for arriving at the number of days constituting continuous service in any given stretch of period of service of an employee under the same establishment inclusive of interruptions that could be treated as non-interruptions.They are:(1)interruption on account of sickness (2) interruption on a/c of accident (3) interruption on a/c of leave (4) interruption on a/c of 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,(5) lay-off (6) strike (7) lock-out and (8) cessation of work not due to any fault of the employee.
ss(2) specifies the no. of days in different strecth of periods in cl (a) and (b) to be deemed as continuous service as per ss(1).
The Explanatory Clause speaks about further interruptions due to other reasons.
Therefore, the Leave on Loss of Pay, whrther informed or uninformed, in the absence of any order or service rule treating the same as break in service, would count for computing continuous service for the purpose of gratuity.
3rd July 2014 From India, Salem
4th July 2014 From India, Bangalore
Attendance is as follows i.e. 1st year I have worked for 331 days, in 2nd year I have worked for 343 days, in 3rd year I have worked for 332 days, in 4th year I have worked for 355 days and in 5th year I have worked for 350 days. In that 32 LOP in 1st year, 21 in 2nd year, 36 in 3rd year, 10 in 4th year and 6 in 5th year, total 105 loss of pay in 5 years of service
PFAC of my attendance, i kindly reply whether i am eligible for gratuity or not?
27th July 2014 From India, Bangalore
What treatment the LOP days should be given depends on HR/Leave policy of a firm. It's also depends on, in many firms, on the goodwill, a go-getter, enjoyed by the employees concerned and ultimately the deciding factor is HODs' recommendation on such availment from case to case basis. I personally feel "uninformed leave" does not warrant a kind treatment from the point of view of the employer and deserves to be treated as absent (except on valid reasons like sudden illness, accident etc.) which in turn could be amounted to 'break-in-service". So I request all our employee friends never, ever venture for "uninformed LOP" as there is always a danger of losing benefits accruing to all of your past services. This is so 'leave itself cannot be taken as an automatic right to avail' ofcourse except on emergencies. It goes without saying 'an unwanted person' cannot complain of discrimination if 'a break-in-service' is meted out in case of LOP, of course sometimes no.of days also matters. In these situations it's good for them to sort them out immediately on rejoining duty after the LOP and see it did not result in break-in-service otherwise one has to repent leisurely when they are leaving and face the shock of problem in F & F settlements.
30th July 2014 From India, Bangalore
22nd August 2014 From India, Kannur
My question is my last working day was 4-8-2014. Now my basic and da for 4 days is (240+86) is my gratuity will be 940 INR or else it will calculate on last withdrawn salary i.e. 31-7-2014 then my basic and da on last withdrawn salary is (6250+2250), in that case my gratuity will be 24519.
Kindly clarify my doubt.
23rd August 2014 From India, Bangalore
I seek your advise on the matter below-
My employment with a US MNC was a fixed term contract for 3 years on renewable basis. They parked the sum for my gratuity and showed it to me part of CTC. It was never a part of payout.
On attainment of my third, year the organization did not renew my contract and let me go. My question is:
Since my agreement did not get renewed and the gratuity was deducted, can I claim it from my ex-employer.
Thanks and regards
21st October 2014 From India, New Delhi
Another important thing that the HR should note while drafting the appointment orders and salary structure of an FTC employee is that if the contract is for period not exceeding five years, never show the gratuity as part of CTC because in such contracts it is certain that the employee employer relationship will come to an end before five years and in no way payment of gratuity would arise. And if you still show it as part of CTC, it can be questioned and if the employee files a case, there is every chance that the employee will win it on the ground that the employer has given wrong message about the package.
This has what happened to Maverick also. If you share your complete details we may be able to advise you further on it.
22nd October 2014 From India, Kannur
Thanks for your insight. I shared my payslip and you are correct they have not been deducting, but shown it as my CTC. My argument is, neither it was given to me as a monthly pay out, nor it was given to with my F&F, I as an employee is at sheer loss.
Will I be wise/judicious to pursue this with my employer and if necessary take to legal?
You advise will be a great help.
Thanks and regards
27th October 2014 From India, New Delhi
A similar amount which the new generation companies show in the CTC is the loyalty incentives which is payable on serving the company for a certain period. This is a condition of service which will be maintainable also.
27th October 2014 From India, Kannur
2nd March 2017 From India, Lucknow
2nd March 2017 From India, Noida
However, an answer ventured out of the philosophy behind the aspect of payment of gratuity to an employee is also possible in the special back-drop of the case. An unqualified candidate was wrongfully appointed to a post the fact of which was realised belatedly only by the Management and hence his services were terminated after three years. Of course the same was stayed by the Court immediately on the employee's appeal while the main issue was still pending.So the relief of continuation of his service was only of interim nature till the disposal of the main issue which came to the knowledge of the Management further belatedly for obvious reasons though it was favourable to them. When on further appeal by the employee, the orders of the High Court was confirmed but with a definite relief of a fixed sum of compensation to the employee. I think that there ends the matter.
My personal view, therefore, is as follows:
A)Gratuity is essentially based on two aspects - one is blemishless service and the other is a certain minimum length of service. When the very appointment itself is wrong due to lack of essential qualification, the subsequent termination of services based on such wrongful appointment would also be a declaration to the effect that the person was never appointed as such apart from extinguishing the wrong appointment as void ab initio.
B) The compensation fixed on the final orders on appeal puts an end to all claims of terminal benefits,if any.
The views other friends are solicited.
3rd March 2017 From India, Salem
3rd March 2017 From India, Kannur
2. However, I may submit that as observed from various detailed judgments of Hon'ble Supreme Court/High Courts, Hon'ble courts in administrative matters like as we are discussing closes the entire dispute for future by awarding a lump-sum compensation to the aggrieved employee. Such lump-sum compensation may include all claims viz. notice pay, gratuity, leave encashment etc. etc. in respect of which the agreed employee must have made his claims in the petition. I think, the observations of Mr. Umakanthan M. appears to be important and relevant in the situation. With regards.
3rd March 2017 From India, Noida