KK!HR
Management Consultancy
Srinath Sai Ram
Hr Manager
Pammi
Executive
+1 Other

I have worked for 5 years and 13 days with a company. In my fifth year I was on maternity leave for 6 mths. I asked my company for extension for another 6 mths where they can put me on LWP. They denied. So I chose to resign as I could not arrange any help for my newborn. Am I eligible for gratuity?
22nd October 2017 From India, undefined
you should have given your Date of Joining & Date of leaving for answering your query.But, based on your statement that your service is more than 5 years you are eligible for Gratuity.You have to submit your Claim for Gratuity
22nd October 2017 From India, New Delhi
Maternity leave is paid hence you are considered to be in sevice during that period. If you have completed more than 5 years of service including maternity leave and if your company engages more that 10 employees, then you are entitled to receive gratuity.
22nd October 2017 From India, Mumbai
The position is clarified in the Payment of Gratuity Act 1972. As per Section 2A (2) defining 'continuous service' for the Act, the relevant portion reads as under .... (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave dose not exceed twelve weeks.]. So the provision as it stands is for computing only 12 weeks even though the Maternity Benefit Act provides for 26 weeks of maternity leave. So in your case it needs to be calculated as to whether you are completing 240 days of service in the 5th year of your service with 12 weeks maternity leave and 14 weeks paid leave, as leave of all kind is to be reckoned. As far as I could verify the Sub-section IV has not been amended to make it 26 weeks. KK!HR
23rd October 2017 From India, Mumbai
My DOB :21 Aug2012 and took ML on 18 Feb2017 till 18 Aug2017 after that 13 days PL and one day work on office then I was resign on 3rd Sept2017 . Am I eligible for gratuity?
25th October 2017 From India, undefined
Yes, you have completed the min. eligibility period of five years 'Continuous Service' under the Payment of Gratuity Act 1972 and is eligible for payment of gratuity. KK!Hr
26th October 2017 From India, Mumbai
But my employer is denying gratuity saying that any paid leave does not count for the calculation of gratuity. Does any company have the right to do so? Where can I find the policy which states so as I need to produce it in my support.
26th October 2017 From India, undefined
Dear Pammi, have you submitted your Gratuity Claim in writing to your Employer? consequent to relieving from the Service of Company? Employer is denying Gratuity orally or in writing?
If your Employer rejects your Gratuity Claim, approach jurisdictional Assistant Labour Commissioner/Controlling Authority with all relevant details/Documents.Still you have not furnished details of Date of Joining, Date of leaving as per Company records?
26th October 2017 From India, New Delhi
Dear Srinath ,
My DOJ :21 Aug2012 and took ML on 18 Feb2017 till 18 Aug2017 after that 13 days PL and one day work on office then I was resign on 3rd Sept2017.
26th October 2017 From India, undefined
During maternity leave period 26 week whether i will get any Earned leave / Privileged leave ??
26th October 2017 From India, undefined
Consequently, your Total Service: From 21/08/2012 to 03/09/2017-5 Years & 14 Days.have you served Notice period as per Terms of Appointment mutually agreed & accepted? has the company waived Notice period? is your resignation accepted by Management in writing? Have you got Relieving Letter?
After completion of relieving formalities, Submit your Gratuity claim in writing by Regd Post Ack due & wait for further action by management
26th October 2017 From India, New Delhi
Dear Srinath,
My date of joining is 21 Aug 2012 and my date of resignation is 3rd of September 2017. I took maternity leave on 18 the Feb 2017 till 18 Aug 2017. Then I took PL till 1st of September. I joined my office 2nd of September. My baby then 5 mths old didn't eat or drink for 8 hrs in my absence. I felt horrible and decided to quit. So I sent my resignation on 3rd of September which was immediately accepted. Next day I got a notice on a company letterhead from the hr that I need to pay 2 mths of salary in lieu of the unserved notice period. I asked them to do the F&F and settle the due from my gratuity. Then they replied me on mail that I was ineligible for the same as my number of working days are less (not 240) after excluding the paid leaves.
26th October 2017 From India, undefined
Hi Srinath,
Answering your other questions. No I didn't serve the notice period of two months. Nor my waive off request was accepted. Yes my resignation was accepted on mail. No I have not got my relieving letter as the first step they took was to recover two months of the payable notice period. Where one month is mandatory and the other payable or waived as per their decision. I have not yet submitted the gratuity request.
26th October 2017 From India, undefined
Ms. Pammi: During maternity leave you need not take PL/EL as Maternity Leave itself is paid leave. If you are seeking leave after the maternity leave is exhausted, sanctioning further leave depends on the exigencies of service. While Maternity Leave is a legal right bestowed on a women employee, PL/EL is always subject to sanction and depends on exigencies of service.
Your employer is not correct in stating that paid leave is not counted for gratuity purposes. As per Payment of Gratuity Act 1972, one is entitled for gratuity after completion of five years of continuous service. The term Continuous service is defined in Section 2A of the Act. It reads as follows:
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 ...........
So since your service has been uninterrupted from 21st August 2012 to 3rd September 2017, you are fulfilling the minimum eligibility period and is entitled to gratuity. The Act requires that the gratuity is paid within 30 days of your termination of service, beyond that you are entitled to interest also. As it is more than a month, they will have to pay you with interest.
You can try to reason out with the above legal position but if they persist with their wrong interpretation, you can adopt the way suggested by Sainath Sir.
26th October 2017 From India, Mumbai
Ms. Pammi
(My view is more from practical prospective than legal)
It seems you did not share the plan with your employer & had an intent which is obvious to cross the border line intentionally. What i can observe after reading all comments together here is 12 week was initial term of maternity leave and since it was increased to 26 week but has no reference in gratuity till the time, it is hard to give you pragmatic suggestion. In this case it might be interpreted 18th Feb as your last working day and 2nd Sep is merely to inform them that you are joining. Before 18 Feb I am not too sure whether there has been absents marked (at least i cannot see in your comment) then it becomes a bit tricky. You are also seems to in breach of contract by not serving mandatory notice period of one month and even second month is on their consent.
Also seems that since you have not given fair opportunity to your employer to plan has resulted this situation otherwise now a days almost no employer takes aggressive approach in such matters. The intention of employer seems not too bad by extending of course 3 months into 6 months (Though it is rights but was sudden which hampers work of employer) and then extending by giving PL that could be only with a hope to get you back.
Try to have mutual understanding with employer before moving to legal because of the reason that it doesn't work so efficiently here in India. I am again saying this is more of my thought than legal just because I am not a legal guy. Good Luck.
27th October 2017 From India, Noida
Dear KK!HR,
Sir, I refer your post #4 above in which you have stated as under:
As per Section 2A (2) defining 'continuous service' for the Act, the relevant portion reads as under .... (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave dose not exceed twelve weeks.]. So the provision as it stands is for computing only 12 weeks even though the Maternity Benefit Act provides for 26 weeks of maternity leave.
May I request you to kindly post this section verbatim with highlighting the word "maternity leave" and / or 12 weeks.
This request is made so that we can learn out of interactions and correct our-self when we are wrong.
30th July 2018 From India, Mumbai
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