Madhu.T.K
Industrial Relations And Labour Laws
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
Snoopy-1310
Hr Consulting
+3 Others

Thread Started by #Vivekcorporate1990

I joined a PSU on 2nd Sept 2013 and shifting to Pvt organisation. My last working day in PSU is 15th June 2018. Total working period in psu is 4 years 9 months 13 days. Am I eligible for Gratity? My illiterate HR people saying that 5 years are required. Kindly help it's urgent
2nd June 2018 From India, Ludhiana
Dear Vivekcorporate1990,
On this forum, most of the literate HR people will give an answer in your favour. But your illiterate HR people are saying very correct. To you 5 years completed service is require if you do not fall under the jurisdiction of Madras HC and Kerala HC.
Sorry to answer you in your language.
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2nd June 2018 From India, Mumbai
""My illiterate HR people saying that 5 years are required. Kindly help it's urgent""
Professional courtesy demands that wordings like "Illiterate HR" be eschewed in a forum like this dedicated to improving HR knowledge and practises.
Law say 5 years continuous service with 240 days working in last year of service.
People are relying on one Madras court judgement to assume that even if you have lesser than 5 years service you automatically get gratuity.
In my opinion you are not entitled for gratuity.
3rd June 2018 From India, Pune
Mr. Keshav
Whoever despite knowing the rules or being ignorant harasses an employee is deemed to be called illitrate. Kindly buy a dictionary to understand the meaning of illustrate.
Secondly, kindly do not shit on threads if you do not have complete information and misguide. There is a supreme court judgement in this regards. So don't restrict to Madras High court.
I hope you understand it in your language.
3rd June 2018 From India, Ludhiana
Respected Vivekcorporate1990,
When our learned member Nathrao expressly said that professional courtesy demands that wordings like "Illiterate HR" be eschewed in a forum like this dedicated to improving HR knowledge and practises, I need not to go for buying a dictionary to understand the meaning of word you express or expressed.
With due respect to you Sir, I would advise you to kindly read and interpret the Supreme Court Judgement. You can even read my comments on the said judgement of Supreme Court in my various posts. I do not wish to repeat it here once again.
Now question is on misguiding. Corporates have paid me charges for giving legal opinion on this issue of Gratuity. I am here on this forum with more than 2400 posts responding the queries of members honorary like others just because sharing of knowledge and in turn gainning too from people like you.
I have given 64 lectures up till now on various Labour Laws to various Corporates and HR professionals across the industry, apart from lecturing in College. However, no one told me that I misguided anytime.
I always appreciate that one can have different view or different perception to any issue. But it should be supported with appropriate justification.
You are free to stand on your own view / perception and get your due right from court of Law.
Regards.
Keshav Korgaonkar
Advocate High Court Mumbai
3rd June 2018 From India, Mumbai
Dear Sir,
I have gone through multiple forums and each one has unanimously said that if a person has severe 240 days in fourth year he is eligible for gratuity. Haven't found any of your post on same.
Also the word illitrate HR was not used for HR community but for 4-5 HR officials working in my corporation who are actually illitrate and just luckily got promoted from steno level. Hope that clarifies
3rd June 2018 From India, Ludhiana
Dear Vivek
There are conflicting opinions about 240 days service in last year.
Issue is still different.
This being a Public forum and a professional forum, your words -illiterate HR and kindly do not shit on threads if you do not have complete information and misguide are highly inappropriate and courtesy demands that such words are not used.
I leave it to your good sense now.
3rd June 2018 From India, Pune
Dear Keshav jee.
I would be highly oblige if you could share the link of your threads about Supreme Court Judgement interpretation on Gratuity & your comments on the said judgement of Supreme Court in your various posts.
As i need for my academic interest.
Regards,
3rd June 2018 From India, Mumbai
Dear Azim ji,
With due respect to you as well other members, I do not wish to discuss more on this topic.
There are different views on this topic and I have expressed my views with appropriate supports many times on this forum.
I am giving only one link to you as under to make your stand on the subject matter:
https://www.citehr.com/108564-sc-jud...-download.html
3rd June 2018 From India, Mumbai
Dear Vivek----
The learned HR members in this forum have expressed and shared their knowledge law and interpretation on the eligibility to gratuity.
The Apex court judgement may strengthen your case if you fight out in the court of law. But since the service eligibility of five years has not been amended yet in the Gratuity Act, the same will apply and on that basis refusal by your HR to pay you gratuity is not wrong.
You seem to be taking out your anger of refusal of gratuity by your HR on members of this respectable forum unnecessarily and have used ungentlemanly language which you should not have.
You should express your apology and if you don't , stop seeking free advice.
Regards,
Vinayak Nagarkar
HR- Consultant
4th June 2018 From India, Mumbai
Do not use this kind of language not only here any where in any public forum.
Relating to your query, you are not eligible as the act very clearly says that min 5 years of service is required to be eligible for gratuity.
There are two exceptions to this rule:
1.In case of death of employees
2.VR or closure of the company
gratuity is payable irrespective of the period of service.
4th June 2018 From India, Chennai
Sorry - I was working for a Software Firm in Bangalore and as far as I know (and this was 5 years back - since I left the company in 2013) - we were paying Gratuity for employees who completed 4 years 10 months or thereabouts. Is there any dispute about this?
4th June 2018 From India, New Delhi
As per the act not payable, company can have different rules, but once paid for an employee it will be difficult to withdraw as it becomes a rule for the company.
4th June 2018 From India, Chennai
Dear Mita Hemant ji,
You can pay anything more than what is given by Law. And our learned member Ravindranath rightly said that once you pay, it becomes a law and then you can not stop or take it back.
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4th June 2018 From India, Mumbai
This thread needs to be closed as original poster is not responding.The responses of the original poster were inappropriate and distasteful.
Professional courtesy and politeness is the hall mark of any HR or other employee.
Treat everyone with politeness, even those who are rude to you. Not because they are nice, but because you are.
4th June 2018 From India, Pune
Dear Keshav
As per Gratuity Act 240 Days Mean actual Working Days Not your Total Working Days.and don't use this type word.
5th June 2018 From India, Chandra
Dear ,
You said to me - "don't use this type word." I have not understood what do you mean by it.
Not because I am having ample time with me I am on this forum spending time.
Probably my exposure to IR / HR / Legal is more than double your age. However, I never claim that I am superior. I am always willing to learn from even a person like you.
Regards.
Keshav Korgaonkar
Advocate High Court Mumbai
5th June 2018 From India, Mumbai
Dear Friend,
No one can even say he is completely correct. Over the period there are several judgements came ins respect to interprete the "defination". Amazingly, several rulings came but are different. Where as there could have been one "Decission".
In absence of information with some one can not be called illiterate or treat as foolish. The case citation is different and can not binding for everyone, unless untill considered absolute or considered as the inherent part of the Act.
In my opinion, you should challenge the matter in the court against the decission of your past employer as they did not consider your case is fit for gratuity.
"Judgment from Supreme Court: "Yes, by virtue of the judgment of Supreme Court rendered under the provisions of the Industrial Dispute Act in Surendra Kumar Verma vs. Central Govt. Industrial Tribunal,[(1980) (4) S.C.C.433)], it is enough that an employee has a service of 240 days in the preceding 12 months and it is not necessary that he should have completed one whole year’s service. As the definition of continuous service in Industrial Dispute Act and Payment of Gratuity Act are synonymous, the same principal can be adopted under the act also and hence an employee rendering service of 4 year 10months 11days is considered to have completed 5 years continuous service under sec.4(2) and thereby is eligible for gratuity."
[1.] 4 years and 6 months (190 days = 1 year) where the company follows 5 day a week.
[2.] 4 years and 8 months ( 240 days = 1 year) where the company follows 5 day a week. Is eligible for gratuity.The payment of gratuity ( second amendment) act, 1984 clarifies this. One needs to calculate the no of years and service completion as follows. A company which follows 5 day week
Read more at: Clarity between gratuity eligibility service (5 or 4.8 yrs)? - Gratuity - Labour & Service Law
Read more at: http://www.lawyersclubindia.com/foru...ween-gratuity-
5th June 2018 From India, Mumbai
Dear Prabhat,
can you please share a full text of the Supreme Court verdict which states that 240 days in the fifth year would make an employee entitled to gratuity? is the quoted one pertaining to Gratuity? You have stated that definition of continuous service is the same in ID Act and Payment of Gratuity Act. But that is not disputed. What is disputed is whether a person should complete 5 years in order to make him eligible for gratuity. It is okay that 240/ 190 days in a year will constitute continuous service but that does not mean that without completing 5 years a person can demand gratuity.
The Madras High Court ruling and Kerala High Court ruling can be quoted as a direction to pay gratuity to an employee who has not completed 5 years but has completed 240 days in the fifth year. But that direction cannot be taken as a common ruling in the absence of an amendment to Payment of Gratuity Act. Therefore, if an illiterate HR person has said that the thread starter, Vivekcorporate, is not eligible for gratuity, he should have said that based on what is written in the Act. Now it is upto Vivekcorporate to file a complaint before the appropriate authority and get it. At that time he can certainly say that there is a law which says that 240 days in the fifth year make an employee entitled to gratuity etc
If anybody has a copy of the Supreme Court verdict please share it here so that we can take it as a common direction applicable to all establishments in India.
5th June 2018 From India, Kannur
Dear Madhu ji,
Thanks for your post.
I asked some questions on this forum many times but no one came forward with answers to it.
Time being we accept that there is a Judgement of SC which says employee rendering service of 4 year 10 months 11 days is considered to have completed 5 years and Gratuity to is payable to him.
The judgement of SC was reported in 1980.
Why so far there is no amendment in the Law then?
Madras HC, the matter was decided in 1996. Kerala HC, the matter was decided in 2015. If there is a judgement of SC prior to 1996 and 2015 and it was a settled law then why the HC at Madras and HC at Kerala admitted the matter? Why HC at Madras and HC at Kerala did not mention the Judgement of SC?
I am atataching herewith a SC judgement in Surendra Kumar Varma's matter as asked by you.
5th June 2018 From India, Mumbai

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File Type: pdf Surendra Kumar Verma vs CG.PDF (228.4 KB, 55 views)

Yes, this is a case on retrenchment and no where it is mentioned that a person who has 4 years + 240 days should be paid gratuity. The definition of continuous service may be synonymous but the application is different. The point raised by keshav Korgaonkar is very valid that if this is available in hand why the Courts of Madras and Kerala did not refer it? And that was why I had asked for a verdict from SC on this issue. In the past also when this issue came up for discussion the same case had come up, I remember. The link in post No. 9 will take you to our past discussions.
5th June 2018 From India, Kannur
Dear HR Colleagues,
This issue of whether somebody who has put in 4years service and in the 5th year has completed 240 + days service can be considered to have completed 5 years' service and would make him eligible for gratuity under the Gratuity Act is not within the ambit of this forum. Members can express their views but until law is amended to support the above interpretation making an employee eligible for gratuity, it is pointless to drag this discussion any further as more heat than light is being generated.
Regards,
Vinayak Nagarkar
HR- Consultant
6th June 2018 From India, Mumbai
Dear Sri T. K Madhu
&
Sri Koregaonkar,
I do not have the copy of the decission of the Apex court which is very much in discussion. The quoto made by me provided with the reference of the cite down the posting.
I also made it clear in my posting that the case citation is case specific and can not be considered absolute and riding over the Act & laws in force.
I also fully agree with your opinion that, why the laws are not being ammended immidiate after the pronouncement by the apex court.
I request my learned collegue to refer this two cases(B&OCW), one is of the Supreme Court order in Civil Appeal 6223 of 2016 and other one is by the Chatishgarh High Court, Bilaspur Bench WPC-2636 of 2010, order date 16/02/2018. This is just to know how the things being treated & interpreted.
With regards
6th June 2018 From India, Mumbai
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