Anonymous
Hello Sir,

I am working as a professor in private university. I was recruited in August 2016 as a full time fix-pay employee. After that from July 2018, my University put me on official pay-scale of professor. But what they did, they have not given the salary of 5 days from 1 July to 5 July, just to show service gap but I was present on all those 5 days. Even they have changed my employee ID.
In this case am I eligible for gratuity?
Still I am working in the same place. (more than 5 years from Aug 2016). They have not asked any resignation letter from me when I was put on pay-scale. Even they have not provided any experience letter for initial service before 5 days service break.
Another thing that I want to point out is that, On my initial joining letter, there is no where written words like "Adhoc", "Contractual Job", "Part time", etc.. They have mentioned fulltime employment.
Secondly, when I joined this job, they gave me joining letter with some rules and regulations attached to it. In that rules, one rule is written that, "During this employment period you are not eligible for any Gratuity and any kind of allowances."
They have taken the signature of mine on that joining letter and kept one copy with them. (It is regular University letterhead paper. Not notarized government stamp paper.)

Still am I eligible for Gratuity?

From India, Anand
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Umakanthan53
Labour Law & Hr Consultant
Drsivaglobalhr
Doctor Siva Global Hr

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umakanthan53
5943

I think that the poster still continues in the service of the University. The question of payment of gratuity would arise only on the formal and final termination of his employment.

Till then, the artificial break in service, change of pay scales and mode of payment wantonly made by the University would be inconsequential so far as his eligibility and entitlement to statutory gratuity are concerned. So, let the poster be quite calm without showing any explicit protest but should keep all the documents of his employment intact and safe.

Contracting out by an employee is prohibited under labor jurisprudence. Therefore, the poster need not bother about the illegal undertaking obtained by the University from him.

I wonder whether such a prominent centre of higher education like a University is actually run by educated people.

Even if the poster's services are terminated by the University tomorrow or he resigns his job even now, he is certainly eligible for gratuity under the Payment of Gratuity Act 1972 for he has already completed the minimum qualifying service fixed under the Act. The artificial breaks in service would automatically merge with the actual service under the deeming provisions of section 2-A of the Act.

From India, Salem
Anonymous
This would be really helpful for us. Thank you for your quick response.
Another thing I would like to ask, is gratuity applicable for contractual appointment or ad-hoc appointment?
Is it valid if employer forced to do work after office hour? it means they are asking to do work 24x7.

From India, Anand
drsivaglobalhr
300

Dear Colleague,
The earlier reply given by our Learned Colleague is very crystal clear. For your next question kindly note that except " Apprentices" whatever name they call, you are eligible for Gratuity on termination of employment by resignation or retirement as the case may be after rendering 5 years of continuous service. Kindly read the below provision. Being a Professor, you are very well eligible for getting Gratuity on completion of employment by way of resignation or retirement.

2 (e) "employee" means any person (other than an apprentice) employed on wages, [3] [***] in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, [4] [and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity].


On your second point, it is not human and lawful on the part of employer to ask someone to work for 24x7. But they have right to ask you to be in touch / in connect with the Institution 24x7 if you hold key role in your organization. You will be governed by Rules of University on working hours if you are in Teaching. Kindly check.

From India, Chennai

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