Hi, I have worked for 4.9 months. Am I eligible for gratuity.

I have a claim to my company for gratuity but they told me my total working days 171 which means they are not including weekly off, holidays, and leave

Please let me know am I eligible yes or not my date of joining is 17 aug2016. And the left date is 5 May 2021

From India, Delhi
Labour Law & Hr Consultant
Deputy Manager

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Dear Friend,
Section 25B in The Industrial Disputes Act, 1947, Defines continuous service.- For the purposes of this Chapter, :-(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock- out or a cessation of work which is not due to any fault on the part of the workman;
Your eligibility for gratuity depends upon whether you have completed 5 years continuous service or not. Your employer would not pay you gratuity, if you do not have continuous service of five years. The first para contains the calculation of continuous service for the reference.

Your total working period is 04yrs 08month 18 days(from17 aug2016 to 5 May 2021) less than five years, further your tenure in 5th year is 197 days which is less than 240 days, so you are not eligible.

From India, Mumbai

Sorry, Prabhat, to differ from your view point and calculation of the length of service of the poster.

First, since the calculation of the actual length of continuous service is for the purpose of determining the eligibility for gratuity under the Payment of Gratuity Act, 1972, your reference to section 25-B of the ID Act,1947 instead of sec.2-A of the PGA,1972 is not necessary though the two sections are in pari materia.

Secondly, under both the Acts, the calculation has to be done with effect from the date of termination of employment and not from the date of joining of the employee. In other words the calculation is to be done by commencing and counting backwards from the relevant date i.e., the date of termination of employment which is the date of relieving from the establishment. Hence the length of service of the individual in the establishment is 04 Years-08 Months-18 Days i.e., (2021-05-05) -- (2016-08-17). Effectively, thus, the poster had worked for 4 years and 258 days in the fifth year. Therefore, by virtue of the deeming provision of sec.2-A of the PGA,1972 the poster is qualified for gratuity under the Act.

Thirdly, sec. 2-A mandates that the interruption in service due to holidays, authorised leave and the like is to be treated only as non-interruption for the purpose of calculation of 240 days in a period of preceding 12 months. Hence the contention of the employer is not correct.

If the employer still maintains his stand and refuses to pay gratuity on this ground, the poster may file a claim for gratuity together with interest for the period of delay before the Controlling Authority under the Act for the area where the establishment is situated.

From India, Salem

Dear Friend,
If company is paying monthly salary including weekly off, Holiday etc. in such case company has to count weekly off , holiday for counting 240 days. In your case you are eligible to get gratuity.

From United States ,

Dear Friend,
If company is paying monthly salary including weekly off, Holiday etc. in such case company has to count weekly off , holiday for counting 240 days. In your case you are eligible to get gratuity.

Pankaj Shukla
Gurgaon, India

From United States ,

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