Umakanthan53
Labour Law & Hr Consultant
Madhu.T.K
Industrial Relations And Labour Laws
Bharat Gera
Principal Hr Consultant
KK!HR
Management Consultancy
+1 Other

Thread Started by #DIPTI SRIVASTAVA

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?
24th January 2018 From India, Mumbai
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.
24th January 2018 From India, Madras
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.
24th January 2018 From India, Mumbai
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?
25th January 2018 From India, Salem
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!!!!!!
25th January 2018 From India, Mumbai
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
25th January 2018 From India, Thane
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.
25th January 2018 From India, Pune
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.
25th January 2018 From India, Salem
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)
25th January 2018 From India, Mumbai
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?
25th January 2018 From India, Pune
EXACTLY...employee is writing mail for gratuity and threatening for legal action as he has got the salary for two months in 2016
any court ruling regarding that....
please guide
25th January 2018 From India, Mumbai
You need not mix up the probation period and the fixed term contract with right of an employee to get gratuity. Both the period during which the employee was on probation and the period served under a fixed term contract will be considered as service for the purpose of eligibility for gratuity. But in the present case, the employee has not worked for 4 years plus 240 days in the fifth year. You need not take years in compartments but take the date of his leaving service (date of which he was formally relieved) and count the pay days backwards (you need not take the days physically present but the days for which salary was paid because the weekly off days, the employee was on leave with pay, holidays etc will be counted as days worked for the purpose of gratuity calculation) and see whether each year has 240 pay days and accordingly see whether he has worked for 5 years. I don't think that he has such number of pay days. If not, reject the application for gratuity. And if he has worked for 5 years with each year qualifying with 240 days of work, then give him the amount and settle the issue.
Now supporting the comments made by Shri Umakanthan Sir, I would say that though fixed term appointment is permitted, engaging an employee on FTC for such a long period is not a good practice and is one of the unfair practices under the ID Act
25th January 2018 From India, Kannur
how (leave without pay) LWP shall consider in this case? shall gratuity count accordingly?i mean including LWP?
25th January 2018 From India, Mumbai
LOP period is included for calculating gratuity as it comes within the continuous service as defined under Section 2A of the Payment of Gratuity Act 1973. From what you have described, the employee has not completed the eligibility period of 4 years & 240 days, particularly with the 2 month break in service and so is ineligible. If the employee has stated anything to the contrary in the notice, pl share so that we can exercise our mind in the matter.
25th January 2018 From India, Mumbai
LOP which is nor regularised will be taken as break in service. There are few gaps in between the FTCs these are unpaid days and are not taken for counting the continuous service.
25th January 2018 From India, Kannur
Dear Friend,
One should have 5 years of conteneous service to get gratuity. The period of probation can not be separated from the length of service. The calender year calculation is not justified. The following observations set & decided by the apex court to decide one's eligibility.
One must have actually worked for 240days the relationship of master and servant existed for a period of 240 days. If an employee has been absent for any number of days only by reason of sickness, accident, leave, lay-off, strike or a lock-out or cessation of work not due to any fault of the employee concerned then his service will be uninterrupted and will be taken to be continuous service irrespective of the number of days, for which he has been absent in that year.
However, if the employee has been absent for any reason other than the reasons mentioned in the main part of the definition, his service will not be deemed to be uninterrupted and therefore, not continuous.
When this law was framed had given priority to both employer and employee and the conteneous service was purely actual 240 days of working/present in service. By which the employer was able to get more working days for the factory for maximisation of production and to pay for the contribution to employee as Gratuity. We still wandering after 46 years of enactment of the Act/rules/ laws to understand the eligibility...........has become so complex after several decissions by the courts......,
25th January 2018 From India, Mumbai
Dear Dipti,
Time and again, it is quite unfortunate that many questioners ignore the repeated requests of some of the resource persons of this forum to present all the relevant details relating to their disputed questions of facts in full as well as with clarity of presentation at a stretch. But, they are coming forth in instalments only that too after many, many follow up questions by the respondents.
Very well this can be culled out of your first post yesterday and the second post today. The employee was in your service as a Fixed Term Annual Contract Employee for 4 years only and excepting the first two, the contracts are not consecutive in nature and therefore no possibility of counting the breaks for the purpose of continuity of service for computing the minimum qualifying service for gratuity as per S.2-A of the Payment of Gratuity Act,1972. There is no break in the service of the employee between the first two annual contracts i.e., 30-03-2013 to 31-03-2014 and 01-04-2014 to 31-03-2015. But, there is a break of 7 months before the commencement of the third contract i.e., 01-11-2015 to 31-10-2016. Again, between the third and fourth contracts, there is a break of 2 months. Since the breaks are due to non-renewal of the contract, they can not be simply treated as breaks on account of LOP.
Therefore, my considered opinion is that the employee is not eligible for gratuity as she has not completed the minimum qualifying continuous service of not less than 5 years.
25th January 2018 From India, Salem
The question of gratuity does not come up here at all.
She has worked only 3+ years and that too with breaks.
25th January 2018 From India, Pune
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