Umakanthan53
Labour Law & Hr Consultant
Madhu.T.K
Industrial Relations And Labour Laws
KK!HR
Management Consultancy
Bharat Gera
Principal Hr Consultant
Nathrao
Insolvency N Gst Professional

If employee is working in private institution and he is signing the bond and agreement with company, he has completed 4.Year 7 months and 15 days & terminated on denied duties and misconduct (as per termination clause in appointment letter) and probation period CLAUSE is mention in appointment letter (its clearly mentioned that In the absence of written confirmation, you will be deemed to be on probation).
So will he entitled for gratuity as gratuity act says that 240 days should be completed?
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Probation period if not renewed nor confirmed in writing the employee is deemed to have been confirmed in my opinion.
And if the employee has completed (4 years, 7 months and 15 days) 6 months above without any un- interrupted service, he is eligible for Gratuity as per Gratuity Act. If not paid raise a claim before the Payment of Gratuity Authority. No employee can be on probation for 4 years.
My knowledge goes this is the legal position. Hope I have clarified.
BUT AS PER GRATUITY ACT,An employee who has rendered at least five years of service becomes entitled to the said benefit. The pre-requisite of completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement to the extent that the person is literally unable to provide the required services.
Dear Dipti,
Your post indicates that the employee is concerned only with gratuity based on the actual service rendered as a probationer.
As per the prevailing practice followed on the basis of the ratio decidendi of case laws, the employee would be eligible for gratuity if only he/she has completed 240 days continuous service in the 5th year. No "rounding off" principle can be permitted in this calculation. Therefore, when an employee's service in the 5th year falls short of this, he/she automatically goes out of the eligibility criterion.
If the termination is questioned as illegal and the employee gets a favourable orders from the court, then gratuity would become an attendant benefit. Before that, answers are required from you for the following vital questions:
How can an employee be kept in probation continuously for a period of more than 4 years?
How such an absence of confirmation in writing for such a long period would possibly lead to the presumption that still the incumbent as a probationer?
When the actual reason for termination was alleged misconduct, how the employee could be simply discharged as a probationer? What was his/her position of employment - workman or above?
Why the employee is not prepared to contest the termination of his/her employment?
Dear Mr Umakanthan.M
Thanks a lot for kind response.
but surendra verma case citation is not applicable until employee has completed 240 days
How can an employee be kept in probation continuously for a period of more than 4 years?
every year he is signing one year contract since april 2013 to till oct 2017
How such an absence of confirmation in writing for such a long period would possibly lead to the presumption that still the incumbent as a probationer?
thats true practically is not possible
When the actual reason for termination was alleged misconduct, how the employee could be simply discharged as a probationer? What was his/her position of employment - workman or above?
contract basis job
Why the employee is not prepared to contest the termination of his/her employment?
may be he wants only gratuity
and its clearly mention that in APPOINTMENT LETTER (termination clause ,company can terminate with or without notice any time
PLEASE HELP!!!!!!
Dear Friends,
So far as I understand the Gratuity Act does not consider the status of an employee whether permanent, temporary, casual, badli, probationer, confirmed or not confirmed. It only speaks about continuous service for 5 years for eligibility ( which is now considered as 4 years 240 days).
Warm Regards
Bharat Gera
HR Consultant
9322404765
Dear Uma,
What ever I understand from this query is that he is an employee who has been employed on yearly contracts for more than 4 years.
He has not completed 240 days in 5th year.
How probation has come into picture when employee is basically on yearly contract?
(every year he is signing one year contract since april 2013 to till oct 2017)
Whether there was any break in between contracts even for a day is not clear
Anyway keeping this understanding of events as the basis,employee is not entitled for gratuity.
Dear Deepti,
I appreciate your immediate reply explaining the vital facts.
I understand that this is an arrangement of fixed term contract of employment between the employer and employee concerned initially for a period of one year with a specific clause for further renewal.
Therefore,in the first place, the questions of probation or confirmation after certain specified period does not arise at all.
Secondly, Had the Fixed Term Contract commenced on 01-04-2013 initially, it would have been in force, of course with renewals thereof, during the 5 consecutive years i.e., 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18.
However, for obvious reasons, the employer chose to foreclose the contract in the middle of the 5th year. Now, the pertinent questions at this point are whether there was any minimum notice in the unilateral termination clause of the contract and whether the employer complied with it. If it were so, the terminated employee has a genuine case for successfully complaining against breach of contract and claiming for damages in a Civil Court. When I say so, I take into account the appointment orders you mentioned. But the contract is the basic document in the case.
Appointment date march 2013
contract period:
30.3.2013 to 31.3 2014
1.4.2014 to 31.03.2015
1.11 2015 to 31.10.2016
01.01. 2017 to 31 12.2017 (terminated in nov 17)
Contract has run for 3 years +
Break of 2 months in 2016 (1/11/16-31/12/16)
Break in earlier period.
How did the question of gratuity arise?

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