I have completed a total of 4 years, 11 months, and 12 days of experience, and I have resigned from there. I asked for gratuity, but HR is saying that I am not eligible. What should I do now? I live in Delhi. If you have any references, please share them with me. Your feedback will really mean a lot to me. Thank you.
From India, New Delhi
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From India, New Delhi
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Dear Member,
There are a lot of debates available in the following threads. You can read and gain knowledge about queries on gratuity eligibility:
- [Gratuity Eligibility - Completed 4 years 183 days](https://www.citehr.com/621133-gratuity-eligibility-completed-4-years-183-days.html)
- [Gratuity Eligibility if you are serving a notice period](https://www.citehr.com/260004-gratuity-eligibility-if-you-serving-notice-period.html)
Please feel free to explore these discussions for more information.
From India, New Delhi
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425There are a lot of debates available in the following threads. You can read and gain knowledge about queries on gratuity eligibility:
- [Gratuity Eligibility - Completed 4 years 183 days](https://www.citehr.com/621133-gratuity-eligibility-completed-4-years-183-days.html)
- [Gratuity Eligibility if you are serving a notice period](https://www.citehr.com/260004-gratuity-eligibility-if-you-serving-notice-period.html)
Please feel free to explore these discussions for more information.
From India, New Delhi
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You are eligible for gratuity, please quote the following judgement of MADRAS HIGH COURT:
Hon'ble Justice Mr. S.M. Abdul Wahab in W.P. No. 2135 of 1987 decided on 12.6.1996 in Mettur Beardse Ltd. (represented by Its Personnel Manager), Madras vs. Regional Labour Commissioner (Central) & (Authority under Payment of Gratuity Act) Madras & Others (1998 LLR 1072). It was held that as per Sections 2(a), 2(b), 2(c), 2(e), and 2A of the PAYMENT OF GRATUITY ACT 1972 - 'Continuous service' Qualifying period of service by an employee - Entitlement of Gratuity - An employee rendering continuous service for a period of 240 days in a year will be deemed to have continued in service for 'one year as stipulated by section 2A of the Act. Thus, an employee who has put in service for 10 months and 18 days for the fifth year subsequent to the first 4 years should be deemed to have completed continuous service of five years. His claim for gratuity is tenable.
From India, Mumbai
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Hon'ble Justice Mr. S.M. Abdul Wahab in W.P. No. 2135 of 1987 decided on 12.6.1996 in Mettur Beardse Ltd. (represented by Its Personnel Manager), Madras vs. Regional Labour Commissioner (Central) & (Authority under Payment of Gratuity Act) Madras & Others (1998 LLR 1072). It was held that as per Sections 2(a), 2(b), 2(c), 2(e), and 2A of the PAYMENT OF GRATUITY ACT 1972 - 'Continuous service' Qualifying period of service by an employee - Entitlement of Gratuity - An employee rendering continuous service for a period of 240 days in a year will be deemed to have continued in service for 'one year as stipulated by section 2A of the Act. Thus, an employee who has put in service for 10 months and 18 days for the fifth year subsequent to the first 4 years should be deemed to have completed continuous service of five years. His claim for gratuity is tenable.
From India, Mumbai
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Your HR is correct that you are not eligible for gratuity as you have not completed 5 years of service, as per the Act.
You can consider sending a legal notice to your employer (MD) citing the judgment passed in W.P. No. 2135 of 1987 by the Madras High Court in the case of "Mettur Beardsel Ltd." According to this judgment, you are eligible for gratuity. It would be beneficial if your employer considers this plea, but if not, you may have to pursue legal action to obtain an order in your favor.
Despite the High Court of Madras issuing an order to this effect in 1996, neither the government nor the Trade Unions have incorporated this interpretation into the recent Social Security Code of 2020.
From India, Mumbai
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You can consider sending a legal notice to your employer (MD) citing the judgment passed in W.P. No. 2135 of 1987 by the Madras High Court in the case of "Mettur Beardsel Ltd." According to this judgment, you are eligible for gratuity. It would be beneficial if your employer considers this plea, but if not, you may have to pursue legal action to obtain an order in your favor.
Despite the High Court of Madras issuing an order to this effect in 1996, neither the government nor the Trade Unions have incorporated this interpretation into the recent Social Security Code of 2020.
From India, Mumbai
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You send a Gratuity claim form to your employer by RPAD or courier and if they refuse or do not respond approach the Gratuity authorities
From India, Chennai
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From India, Chennai
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Thank you so much for your valuable reply. I will update status.
From India, New Delhi
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From India, New Delhi
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Dear friends,
This topic remains a bone of contention still now only because some people have a strong premise that the decision of one High Court on a particular issue is not binding on the other High Court. It is also equally true that a division bench of a High Court cannot overrule the earlier decision of another bench of the same Court on the same issue, and the only option available is to refer it to a larger bench. At the same time, it cannot be simply brushed aside on pure technical grounds that uniformity of dispensation of justice has to be ensured while interpreting the provisions of a Central Law which applies across the country alike. Therefore, in the absence of a judgment of the Supreme Court or any High Court on the interpretation of the provision of a Central Law, no harm in following the ratio decidendi of the judgment of a single High Court which alone had the opportunity of adjudicating upon such an issue of the same Central Law.
Moreover, if we juxtapose the definition of the term "continuous service" under sec. 25B of the ID Act, 1947, and under sec. 2A of the PG Act, 1972, both are similar only. To some extent, the latter is more beneficial to the employee inasmuch as it covers the spell of unauthorized absence not declared as a break in service under the service regulations.
How the term "continuous service" u/s 25-B of the IDA, 1947 should be interpreted had already been well set down by the Supreme Court in Surendar Kumar Verma v. Central Government Industrial Tribunal [1980(4) SCC 433] and Mohanlal v. Bharat Electronics Ltd., [AIR 1981 SC 1253].
The interpretation of sec. 2-A of the PGA, 1972, by the Madras High Court in Mettur Beardsell Ltd. v. the Regional Labor Commissioner (Central) [1998 LLR 1072] is based on the rule of beneficent construction of interpretation of statutes only and similar to those of the Apex Court in the cases mentioned supra though no direct reference to them in the judgment, if I remember correctly.
Reverting back to the newly enacted Code on Social Security, 2020 in this regard, section 54 of the Code which deals with continuous service for the purpose of gratuity is verbatim the same as that of sec. 2-A of the PGA, 1972. Hence, contrary to the opinion of our learned friend Mr. Prabhat, the judicial interpretation of the same terms pertaining to old and new laws on the same subject will hold good.
Therefore, if the employer refuses to pay gratuity to the poster on the wrong premise of the non-binding nature of the Madras High Court decision to claims of gratuity from other states, the poster is sure to get it with interest on adjudication.
From India, Salem
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This topic remains a bone of contention still now only because some people have a strong premise that the decision of one High Court on a particular issue is not binding on the other High Court. It is also equally true that a division bench of a High Court cannot overrule the earlier decision of another bench of the same Court on the same issue, and the only option available is to refer it to a larger bench. At the same time, it cannot be simply brushed aside on pure technical grounds that uniformity of dispensation of justice has to be ensured while interpreting the provisions of a Central Law which applies across the country alike. Therefore, in the absence of a judgment of the Supreme Court or any High Court on the interpretation of the provision of a Central Law, no harm in following the ratio decidendi of the judgment of a single High Court which alone had the opportunity of adjudicating upon such an issue of the same Central Law.
Moreover, if we juxtapose the definition of the term "continuous service" under sec. 25B of the ID Act, 1947, and under sec. 2A of the PG Act, 1972, both are similar only. To some extent, the latter is more beneficial to the employee inasmuch as it covers the spell of unauthorized absence not declared as a break in service under the service regulations.
How the term "continuous service" u/s 25-B of the IDA, 1947 should be interpreted had already been well set down by the Supreme Court in Surendar Kumar Verma v. Central Government Industrial Tribunal [1980(4) SCC 433] and Mohanlal v. Bharat Electronics Ltd., [AIR 1981 SC 1253].
The interpretation of sec. 2-A of the PGA, 1972, by the Madras High Court in Mettur Beardsell Ltd. v. the Regional Labor Commissioner (Central) [1998 LLR 1072] is based on the rule of beneficent construction of interpretation of statutes only and similar to those of the Apex Court in the cases mentioned supra though no direct reference to them in the judgment, if I remember correctly.
Reverting back to the newly enacted Code on Social Security, 2020 in this regard, section 54 of the Code which deals with continuous service for the purpose of gratuity is verbatim the same as that of sec. 2-A of the PGA, 1972. Hence, contrary to the opinion of our learned friend Mr. Prabhat, the judicial interpretation of the same terms pertaining to old and new laws on the same subject will hold good.
Therefore, if the employer refuses to pay gratuity to the poster on the wrong premise of the non-binding nature of the Madras High Court decision to claims of gratuity from other states, the poster is sure to get it with interest on adjudication.
From India, Salem
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Gratuity-Contin uous Service-countin g broken period with same employer-Madras HC Judgment.docx
Less than 5 years service - Eligibility for payment of gratuity.pdf