Saswatabanerjee
Partner - Risk Management
Aparajita Banerjee
Manager - Hr
Anuradha In STCPL
Manager - Hr
+2 Others

Hi All,
We have an employee she joined us worked for 4 years then went for maternity leave for 7 months (3 months full paid & rest of the days were without pay) then she came back, worked for another 2 years.
Query is -
1. What will be her total service to be taken for Gratuity calculation
2. can we exclude her 4 months of without pay period from total service period for gratuity calculation
3. General question, if anybody takes a one years continue maternity leave and comes back on duty, what will be gratuity treatment for that case?
11th April 2016 From India, Mumbai
Hello Anuradha, my views are
query no (1)
The total service includes the period from the date of her joining to the date of her relieving from the service.
Query No (2).
NO. It forms part of service unless teh company passes an order treating it as beak-in-service.
Query No.(3)
There is no provision under the Act for maternity leave for one year..therefore teh question as to how the period of absence shall be treated depends up on teh facts and circumstances of each case.
hope this helps
B.saikumar
navi Mumbai
11th April 2016 From India, Mumbai
The gratuity is payable for each year of continued service.
Continued service means without a break.
Since you have approved her maternity leave (Does not matter that it is without Pay) it is not a service break.
However, in each year, if the person has not worked for 240 days, (Or 180 days as per the court clarification actually) it is not a completed year. So, I suppose if someone took a break for a year, then we do not need to pay gratuity for that year but we need to pay for the remaining period.
Saikumar sir, please tell me whether the reasoning makes sense, and whether the same can apply to 4 months of unpaid leave.
The rules do not provide for 1 year leave, but the management may give it on humanitarian grounds or reason for sickness
12th April 2016 From India, Mumbai
To be very frank. I was doing charity by paying till date in all my companies. Means I was paying them including maternity leave even for a year
13th April 2016 From India, Mumbai
Law says 84 days has to be included and beyond days (no cap) also has to be included if MD doc certificate has been produce saying sick out of maternity.
Hope this solves yr problem.
Be soft to women bro.
13th April 2016 From India, Mumbai
Hello Saswata.Thanks for the response.My views are as under.

Sec.2A of the Payment of Gratuity Act which defines 'continuous service' envisages two situations where an employee can be said to be in continuous service.Under Clause(1) where an employee is in service for a period of five years or more till his cessation including the breaks on account of leave or even absence without leave, then he is said to come under the purview of 'continuous service' under clause (1).In Anuradha's post, the employee falls under clause(1) as per my view.Clause (2) considers those cases where an employee is not able to be in service for full year in each year of five years or more for various reasons beyond his control like lay off or even artificial breaks, then he is said to be in continuous service in each year if he completes 240 days(if he is not working under ground) in each year.till his termination.The case under discussion does not, in my view, fall under clause (2).Other views are welcome.

B.Saikumar


13th April 2016 From India, Mumbai
As per the payment of gratuity act continuous 5 years service is mandatory for gratuity, more so minimum 240 days work in a year is a must. In this case you have to calculate as per her Date of joining whether she has worked for 240 days in the fifth year of her service (during the year of maternity leave ... suppose she had joined in 15.01.2010 and went for maternity on 15.01.2014 and joined back on 16.08.2014 then you have to count 4 complete years and in the fifth year how many days she worked in the fifth year till 15.01.2015... the three months paid maternity leave will be counted as her working period but four month leave without pay will not be counted). Hope this will help you in calculating the gratuity amount. Seniors in this forum may correct me if there is any mistake in my understanding.
Regards.
13th April 2016 From United States, New York
M.B. LEAVE – LWOP.
=================
The normal practice followed in some of the Mfg.Cos is to
INCLUDE ALL PERIODS (AS PERMITTED IN LABOUR ACTS LIKE M.B.ACT, LEAVE RULES AS PER FACTORIES ACT) WITH PAY/SALARY for calculating Salary, Allowances, Leave earning, Production Incentive, Performance Incentive, Bonus, Gratuity etc., &
EXCLUDE THOSE PERIODS which the employee has taken LEAVE WITHOUT PAY (LWOP) for his Personal works. WE MAY FOLLOW THE M.B RULES & THE FACTORIES ACT RULE OF ‘EARN & AVAIL’ FOR PRODUCTIVITY & MAINTAIN UNIFORM POLICY OR ELSE; THERE WILL BE GRIEVANCE & COMPLAINTS.
Request Seniors to comment on the matter.
13.4.16
13th April 2016 From India, Mumbai
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