Madhu.T.K
Industrial Relations And Labour Laws

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We have an employee whose joining is 18 Oct 2012 and date of leaving is 31st July 2017. He has not completed 5 years. Pls explain is he comes under gratuity since his "actual working days" (excluding holidays and Sunday) after 4 years, are not more than 240 (though his period of service (including Sundays & holidays) is 4 years 282 days).

There are different views with regard to treatment of qualifying service. There are two court verdicts which point out that service of 240 days in the fifth year shall be considered as one year and as such gratuity shall be paid to those who leave the organisation after rendering 4 years and 240 days of service. However, the Payment of Gratuity Act is very clear that in order to be eligible for gratuity one should have a minimum of 5 years service. As per the Act 240 days is only the mandatory service to make a year's service continuous and it has nothing to do with minimum service required to make an employee eligible for gratuity.
In both the cases, 240 days of service should include all paid holidays, paid leaves and weekly off days. In the case of female employees, the days on which she was under maternity leave should also be considered as days worked. Therefore, if your employee had worked for 282 days including Sundays and holidays, then he is deemed to have earned one year continuous service. This applies, invariably, to employees who are paid for their holidays and weekly off days and not to casual workers who are paid based on their physically present days.
Again, since gratuity is a social welfare scheme for the employees, the employer is advised to give it irrespective of whether you accept or not the ruling of Madras High Court or Kerala High Court ruling.

From India, Kannur
Thnx ,Ms. Madhu, So As per gratuity act,is the above mentioned employee eligible for Gratuity, since has not completed 5 years of service ??

As per the Act he is not eligible for gratuity. But the appropriate authorities under the Payment of Gratuity Act in Tamil Nadu and Kerala order payment in such cases following the High Court verdicts in their respective states. One more thing is that the verdict of a High Court need not be taken as something which is relevant in the state only but we can adapt it and can certainly apply in other states also.
From India, Kannur
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