Dear learned and respected members...I had a query regarding gratuity calculation related to maternity leave...I am an HR in a philanthropic charitable eye hospital where two of our hospital nurses were on maternity leave last year during the ongoing covid pandemic period somewhere in march/april 2021. During march to may 2020 we paid salary to every of our staff members who were confined to home due to this pandemic but during that period while on leave they went for maternity leave under esic benefit...now after enjoying 26 weeks of the same, they have now sent their resignation letters citing reasons of covid related problems...They had not reported at all. They claimed their EPF, leave salary due and gratuity but for gratuity if a staff member doesn't report and join at all after maternity leave, can we consider those 26 weeks as continuous service for gratuity payment ?
Please help and advice

Rajib Choudhury
West Bengal

From India, Bhubaneswar
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Umakanthan53
Labour Law & Hr Consultant
Drsivaglobalhr
Doctor Siva Global Hr
Rajib Choudhury
Hr Personel

Dear Colleague,

Your organization is good as extended salary to the employees during pandemic. In case of computing "Continuous Service" for arriving completed years of service you need to add Maternity leave days also as such leave does not interrupt the service. For arriving the 240days you need to include the days as per Section 2A (1) of the Gratuity Act

.....an employee shall be said to be in continuous service for a period if hehas, 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 [***]treating the absence as break in service has been passed in accordance with the standing order, 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

Explanation: For the purpose of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which -

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicab1c to the establishment;

(ii) he has been on leave with full wages, earned in the previous year;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave .........continues

There is a specific clause to include the maternity leave for computing the days for continuous service.

Hence you need to include.

From India, Chennai
Anonymous
Sir, everything is fine but if the concerned staff member "doesn't report and join at all" after 26 weeks and has submitted resignation with gratuity claim during enjoying leave then what will be the process of consideration for continuous service ? I know that maternity benefit is well included under the term "continuous service" provided she "joins and resumes her duty".

One thing was also not mentioned by me which was in a special administrative meeting a consensus was reached by the management wherein an additional "upto 1 year" maternity leave may be extended further after 26 weeks considering the ongoing pandemic where mothers have to be safeguarded for their babies. Now due to work load, the concerned staff members are being called to join now before completion of the said period with the sole decision of the management only. Now, while calling them to join, they are submitting resignations ( 2 female staff members had resigned) and claiming gratuity. That means they had not joined at all.

In this case my immediate superior is contradicting the definition of continuous service period where he is insisting on saying that the last day of service period will be her last day of biometric attendance only and no further maternity leave period will be included as they had not joined at all later.

Please clarify sir.

Regards,.
Rajib Choudhury

From India, Bhubaneswar
Dear Rajib,

Simply put, your question is whether an employee can be permitted to resign on the expiry of the sanctioned leave without rejoining and paid gratuity for the service rendered including the last leave spell.

Any leave irrespective of its length is sanctioned only on the basis of the eligibility conditions. Particularly, maternity leave is an accrued statutory benefit on the basis of the service rendered by the employee concerned prior to the occasion for it. Therefore, no additional condition of rejoining on its expiry can be imposed by the employer.

For the eligibility, entitlement and the computational purpose of gratuity under the Payment of Gratuity Act,1972 the essential requirement is the length of continuous service that should be reckoned only backwards from the actual date of termination of employment and not " the continuity of service". Therefore, your immediate superior's interpretation of continuous service by linking it to the employee's last attendence whether it is biometric or otherwise is not correct. Any authorised leave whether with salary or not shall be considered as duty only for the contract of employment subsists during such entire leave period and it just comes to an end if the employee resigns on the expiry of the sanctioned leave without rejoining.

The incidental question of handing over of the charge also does not arise as the employee was already on long leave of either 18 or 26 weeks at a stretch in the case of statutory maternity leave.

Of course, the employer can insist on the fulfillment of notice conditions by the employee as per the unilateral exit clause of the contract of employment for the acceptance of the resignation but he cannot scan the reasons for resignation otherwise.

From India, Salem
Thanks a ton to all my respected seniors for all your valuable inputs.
From India, Bhubaneswar

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