Sr. Hr Executive
Labour Law Index
Jr. Hr Manager
Please find response to your query below :
)How to count 240 working days?Will it include Saturday and Sunday?In that office, 1st and 3rd Saturdays, and all Sundays were off. - Yes, it will include Weekly off while counting 240 days
2)(Basic*15*completed years)/26. In the formula, I will put 4.8 or 5?In my case, I have completed 4 years 8 month and 17 days. - You need to consider it as 5 years.
14th November 2017
Can you please share a reference to any act/document which states that weekly offs will be counted in 240 days. I need to show them to the company because they said that they will not count weekly offs.
14th November 2017 From India, Gurgaon
As per rule Weekly off counted but I have one more query regarding if any employee was joined at the time he/she was not eligible for getting leave and in same duration she/he was taken leave so this days are calculated in gratuity days or not??
in short absent days are count or not in garrulity days???
14th November 2017 From India, Ahmedabad
Termination of employment may result from
disablement due to accident/disease.
As held in the case of darshan Engineering Works vs controlling authority where an employee continues to work after superannuation he will be entitled to gratuity for the entire period and not only up to his superannuation.
Under explanation to section 4(1) disablement means such disablement as incapacitate an employees from the work which he was capable of performing before the accident or disease resulting in such disablement. Under Section 4(4) if an employee continue in his is current employment after disablement at reduced wages, the gratuity for the period upto his disablement is to be calculated at such wages as he was being paid before disablement. The gratuity for the period after disablement is to be calculated on such reduced wages.
Under provision 1 to Section 4(1), the provision of continuous service of 5 years shall not be necessary where did termination of employment happened due to death or disablement. In case of death the amount of gratuity be paid to the nominee. If there was no nomination made gratuity shall be paid to the heir. Where the nominee or heir is a minor then the amount of gratuity shall be submitted to the controlling authority. The minor can use this fund when he attains majority.
Continuous service is defined under section 2-A, means a period of uninterrupted service including service which may be interrupted on account of
cessation of work not due to any fault of the employees and
Absence from duty without leave(not being absence in respect of which an order treating the actions as break in service has been passed in accordance with d standing orders, rules or regulations governing the employees of the establishment).
As was held in the case of Dalmia Magnesite Corporation vs regional Labour Commissioner Madras if this service is interrupted for reason other than mentioned above it shall be deemed has not been continuous service.
Where an employee not being an employee employed in a seasonal establishment is not in continuous service for any period of 1 year, shall be deemed to be in continuous service under the employer if during the period 12 calendar months preceding the date with reference to which calculation is to be made, he has actually worked under the employee for not less than 190 days in the case of an employee employed below ground in a mine or any establishment which work for less than 6 days in a week and 240 days in any other case. Under clause 2 of section 2A when determining the continuous service for any period of 6 months rather then 1 year for Payment of Gratuity, the number of days the employee should have actually work should be half the number of days actually work which constitutes continuous service for a period of 1 year. What this means is if we are calculating gratuity for a period of 6 month rather than 1 years then 190 days will be replaced by 95 days and 240 days will be replaced by 120 days.
For the number of days an employee has been laid off under an agreement or as permitted by standing orders made under the industrial employment standing order act, 1946 or under the industrial dispute act, 1947 or under any other law applicable to the establishment he shall be deemed to be in continuous service.
Like this if an employee has been on leave with full wages that where earned in the previous years or he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment shall be Deemed to be in continuous service.
If a female has been on maternity leave and the maternity leave is not exceeding 12 weeks, she shall be deemed to be in continuous service.
Under clause 3 of section 2A in case of seasonal establishments acumen shall be Deemed to be in continuous service if he has worked for a period constituting 75% of the number of days on which the establishment was in operation insert 6 months or 1 years.
In Jeevan Lal Limited v its workmen, the claim to gratuity is not forfeited by interruption in service, even though it is over a long period. If the leave is condoned and the employee has been allowed to resume employment by employer.
Superannuation means the attainment by the employee of Such age as is fixed in the contract or conditions of service as the age on the attainment of which the employees vacate his employment. Retirement lease termination of the service of an employee otherwise than on superannuation. This means if the employer by his own wish retire an employee it will be termed as retirement. But if the employee is discharged on attainment of a specific age then it is superannuation.
For Complete details see Payment of Gratuity Act, Rules, Forms, Returns & All Other Information
15th November 2017 From India, Kolkata
Mayur : As regards your query, - As per rule Weekly off counted but I have one more query regarding if any employee was joined at the time he/she was not eligible for getting leave and in same duration she/he was taken leave so this days are calculated in gratuity days or not?? in short absent days are count or not in garrulity days??? the answer is, Yes to be counted for gratuity purposes
15th November 2017 From India, Mumbai