I have completed 4 years and 7 months of service
My DOJ 29 Nov 2016
LWD 30 June 2021

I see under section 2A of the gratuity payment act that I am eligible for gratuity based on my service of 4 years and 7 months However I am told by my organization that I am falling short of few days as the eligibility is 4 yrs and 240 days.

Can someone please help correct my understanding

From India, Badlapur

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What your organization says is correct because you have effectively completed 4 years 7 months and one day service only.
From India, Salem
Dear Member,

Your organization is right you are not eligible for gratuity. On basis of the given detail your service period is 04 years 214 days.

Whereas to eligible for Gratuity you should be completed 05 years uninterrupted service.

However in some Court Verdicts 240 days service in the last year can be considered as full year. If employee work below the ground (mine) then 190 can be acceptable.

I am not getting how your are referring Section 2A in support of your statement.

As above explained by Umakanthan sir, you are not eligible for gratuity.

From India, Delhi
Dear Sir,

Thanks for your prompt response.

As I see on gratuity payment act 2A(i)..4 years and 6 months is eligible as I worked in an IT organization with 5 working days a week.

Please suggest

2A. Continuous service.—For the purposes of this Act,—
(1) an employee shall be said to be in continuous service for a period if he has, for that period,
been in uninterrupted service, including service which may be interrupted on account of sickness,
accident, leave, absence from duty without leave (not being absence in respect of which an order 3
***
treating the absence as break in service has been passed in accordance with the standing orders, rules
or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation
of work not due to any fault of the employee, whether such uninterrupted or interrupted service was
rendered before or after the commencement of this Act;
(2) where an employee (not being an employee employed in a seasonal establishment) is not in
continuous service within the meaning of clause (1), for any period of one year or six months, he shall
be deemed to be in continuous service under the employer—
(a) for the said period of one year, if the employee during the period of twelve calendar
months preceding the date with reference to which calculation is to be made, has actually worked
under the employer for not less than—
(i) one hundred and ninety days, in the case of an employee employed below the ground
in a mine or in an establishment which works for less than six days in a week; and
(ii) two hundred and forty days, in any other case;

From India, Badlapur
Dear Binu,

I don't know what prevents many questioners like you to give complete details of your employment in the queries raised in stead of in instalments. As per your additional input, you are eligible to gratuity under the P.G Act,1972.

From India, Salem
Dear Umakanthan Sir,

Please accept my apologies. I am new on this and really appreciate your prompt response and I can't have it from anyone better than you on this subject.

While I have written to my organization about this the retirals team rejected my claim. I have re-raised my claim with supporting clause from 2A (i) ..my HR now have told me they will review and revert in 2 weeks. In the event they still reject what should I do.

From India, Badlapur
In case of continued refusal by the employer on the basis of misinterpretation, you can file a claim before the Controlling Authority under the Act for the area where you worked last and get the amount with 10% of simple interest for the period of default.
From India, Salem
Thanks a lot Umakanthan Sir..appreciate all your guidance
From India, Badlapur
Dear Umakanthan Sir,

My organization has responded as below. I had 5 working days a week and infact most people in our organization had same. I worked for Capgemini in mumbai. However there response states I am not eligible

With regard to your below query, appended our response :-

In the present case, as informed you have worked for 4 years and 234 days.



Capgemini follows the calculation of 4 years 240 days, bearing in mind that our organization is functional for 7 days a week. You have been sharing reference of a calculation wherein organisations function for less than 6 days a week.

Therefore the calculation shared is not applicable to our business.

In view of the same, as per the gratuity act please note that you are not eligible for gratuity as you have not completed the statutory requirement of 4 years 240 days and any exception approval does not work. Regards.

From India, Badlapur
Dear Binu,

An organization may function 24X7 and therefore 365 days in a year. But what is important is only the weekly work schedule of the employee as per the contract of employment or service regulations. When the employee is required to work only for 5 days in a week and allowed 2 days as weekly holidays, the entire weekly holidays have to be treated as the days worked for the purpose of continuous service under the PGA,1972. Here the term " days worked" cannot be the days the employee work with hammer and chisel or pen and paper. That's why the no of days for calculation is reduced from 240 to 190 days.

The contention of your management seems intelligent based on the literal meaning of the relevant phrase but rather untenable. While interpreting the provisions of any Social Security Legislation like the PGA,1972, only the rule of beneficial construction has to be adopted and not literal interpretation. Better write back to the management that if they do not come forward to pay the amount of gratuity, you would be constrained to file a claim before the C.A under the Act for the amount due with interest and costs.

From India, Salem

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