Kamalkantps
Advocate
Vivaek
Hr Manager
+4 Others

#Anonymous

Hi , I have completed 4 yrs and 11 months in current organization and when I inquired about the gratuity with my HR the denied stating that as per company policy to be eligible one must complete 5 yrs . And the LAW for 4 yrs 240 days is only for Madras state .
is there any way i can receive my Gratuity ..what should i Say or can some one provide me with proper document so that i can discuss this with my HR .
Please Help me guys
20th August 2014 From India, Bhiwandi
If you have worked for 240 days in the fifth year, then it must be considered as one year service as per madras high court judgement. you are eligible for gratuity.check with your labour officer
22nd August 2014 From India, Kochi
Hi friend,
As per Gratuity Act 1972 Section 4 (1) it's clearly says that :
Gratuity is payable to a person on (a) resignation (b) termination on account of death or disablement due to accident or disease (c) retirement (d) death. Normally, gratuity is payable only after an employee completes five years of continuous service. In case of death and disablement, the condition of minimum 5 years’ service is not applicable.
So, In your case gratuity is not applicable.
22nd August 2014 From India, Mumbai
Dear Member, The Madras High court decision was given in the case of Mettur Beardsell. With regards, S. Srinivasan
23rd August 2014 From India, Chennai
As advised by other forum members please do the formality and let the competent authority take a final call. With regards to Madras High Court judgment, that was for particular case of Madras, the same can be referred by other courts but it is not mandatory to follow the same judgment throughout India. A judgment from Supreme Court is applicable to all court across India.
So please apply for it
23rd August 2014 From India, Ahmadabad
According to rule you will eligable to receive when you will complete 240 days service in 5th years please check then you have to fight for gratuity. We think defenity you had 240 days service in 5th year because you are in the month of 11 know.
23rd August 2014 From India, Bangalore
Please follow the suggestions.
But I think should mail your HR (No verbal communication) and wait for her reply.
This email communication will help you to represent your case more stronger. (Present this as a proof).
Regards,
26th August 2014 From India, Gurgaon
#Anonymous
If your HR Dept. is saying that you are not eligible for gratuity then there might be some reason behind this.
Please share the reason of non payment of gratuity then only all knowledgeable persons here at cite hr can reply. Without knowing the HR View i dont know how people sugesting you.
Thanks & Regards
9th September 2014 From United States
Before passing comments that how people suggest, it would be wise if you read the query in detail, the member has sought their view from the forum that his HR states that he is not eligible for gratuity for the reason he has not completed 5 years, instead he has completed his tenure with the company for a period of 4 years and 11 months.
9th September 2014 From India, Ahmadabad
#Anonymous
Dear Mr. Naji,
Just for your knowledge gratuity is payable only if he had completed 240 days in his 5th year.
point no 1 - What if he was on leave on his 5th year for many days and he is not completed 240 days.
point no 2 - What if he was on training basis or on contract for his 1 or 2 years of joining the organization.
point no 3 - What if he was on long leave during his working tenure and he not completed the gratuity requirements.
Hope you are clear now Mr. Saji from Nidra hotel,,,,,,Thats why i said let us know his HR point of views in that case bcoz he only knows what's the reason behind his saying. I dont think his HR would be a duffer like you had made him in your mind.
Thanks
16th September 2014 From United States
Mr Jeetu
First of all mind what you state in the forum, this shows who is duffer here. Again I would rather suggest you to go through each post to have a clear idea. Last but not the least being into HR you don't have the least decency how to reply. You are a member of this forum since October 2010 and with 15 post with 2 appreciations and I am proud to announce that I am not learned/HR Guru but am handling employees of not less than 200 and am still learning.
Once again thanks for your comments, God Bless You
16th September 2014 From India, Ahmadabad
#Anonymous
Mr. Saji
Thanks for your reply....i had been waited for this. Firstly i hope you are clear with the gratuity act and understands the case now. I suggest you to pls read the case again with fresh mind and leave your mind blank this time. This time feels like you are not an HR GURU then only you are able to understand things.
Secondly thanks for the appreciations yes i believe in real appreciations which i received in my career with my juniors, workers, co staff and seniors. whose counting is much more then your likes in citehr.
Thanks for your blessings........HR GURU at nidra hotel.
17th September 2014 From United States
Dear Jeetu,

Please read the very first post of this thread i.e. query of the person posted this thread. In the first post itself the queriest said that he was denied gratuity by HR stating that the policy of the management is to give gratuity to only those who complete 5 years and not less than it. It is also stated in the same post that they said that Madras high court judgment is applicable for the state of Tamil Nadu only.

Read the Gratuity Act, the definition of the term “continuous service” in Section: 2 Definitions is as below

Section: 2

Definitions.(b) “completed year of service” means continuous service for one year;

[2] [(c) "continuous service" means continuous service as defined in section 2A;]

Section 2A itself is defined as below

Section: 2A

2A. Continuous service.—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 11 [***] 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), 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— tc" (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 any employee employed below the ground in a mine or in an establish-ment which works for less than six days in a week; and tc" (i) one hundred and ninety days, in the case of any employee employed below the ground in a mine or in an establish-ment which works for less than six days in a week; and"

(ii) two hundred and forty days, in any other case; tc" (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— tc" (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 tc" (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. tc" (ii) one hundred and twenty days, in any other case." 12 [Explanation.—For the purposes of clause (2) the number of days on which an employee has actually worked under an employer shall include the days on which— tc" 1[Explanation.—For the purposes 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 applicable to the establishment; tc" (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 applicable to the establishment;"

(ii) he has been on leave with full wages, earned in the previous year; tc" (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 tc" (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.] tc" (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.] tc" (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.]"

As per this definition, 240 days of service should be considered as one year of continuous service.

There are a lot of judgment to this effect. The most cited Judgment is the below one.

Mettur Beardsell ltd Madras Vs Regional Labour Commissioner(central),Madras,1998 LLR1072(Madras High Court)

You will become eligible for Gratuity after 4 years and 240 days as it will be 5 complete years of service. Serving any company for 240 days is considered as 1 completed year of service. so 4 years and 240 days = 5 years of service = Eligible for gratuity.

Hope this simple thing will clear all your doubts.

Now whoever says that Madras High Court Judgment is not applicable outside, must know that in absence of any judgment of Hon'ble Supreme Court over ruling Madras High Court Judgment has got the persuasive value and is admissible in any part of the Country. We cite this judgment every now and then.

So dear Anonymous

I would opine you to contact the local Labour Commissioner, who is also the Authority under Payment of Gratuity Act and have my word you will get your gratuity very soon.
18th September 2014 From India, New Delhi
Hi,
I have a request with members contributing for the threads, please don't take things personal. It is not wise for us to take it in that way. Try to approach the problem with the shoes of the person who raised the query. Try to find solution for them. This am placing as a request.
18th September 2014 From India, New Delhi
#Anonymous
You will become eligible for Gratuity after 4 years and 240 days as it will be 5 complete years of service. Serving any company for 240 days is considered as 1 completed year of service. so 4 years and 240 days = 5 years of service = Eligible for gratuity.

Dear Kamal Kant Ji,
This is what i wanted to explain but in simple words...thanks for your knowledgeable information.
Dear Vivek Ji & Cite HR Members,
I really apolozige if my behaviour is not good , i was only taking the side of that HR person bcoz may be he was wrong but if he is correct then? no one is thinking that side of the case anyways i assure i will not repeat the same nor comment now on any post.
Thanks & Best Regards
Jeetu Singh
18th September 2014 From United States
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