Anonymous
Hi,

I have completed 4 years 3 months of service and 6 months of training period. Will I be eligible for gratuity considering 4 years 190 days rule (Gratuity ACT - 2A).
If there is any favourable judgements happened regarding this, please let me know.

From India, Chennai
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Umakanthan53
Labour Law & Hr Consultant
+1 Other

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umakanthan53
5884

Dear friend,

The definition of the term ' employee ' u/s 2(e) of the Payment of Gratuity Act, 1972 specifically excludes an apprentice from the purview of the Act. Sec.2(a) of the Apprentices Act,1961 defines an apprentice as a person undergoing training under a designated trade under a contract of apprenticeship. The EPF Act also does not apply to such Apprentices either under the Apprentices Act,1961 or under a Scheme of Apprenticeship approved under the certified Standing Orders of an establishment whereas the EC Act,1923 and the ESI Act,1948 apply to them in view of the risk of employment accidents.

Therefore, a trainee appointed under a contract of employment cannot be excluded from the purview of the PGA,1972 just by the literary meaning of the term ' apprentice ' employed in the definition u/s 2(e) of the Act. In this connection, you may refer to the judgment of the hon'ble High Court of Orissa in the CMD, Orissa Mining Corporation Ltd., v the Controlling Authority under the PGA,1972(1995).

Coming to the 190 days question, you will be eligible for gratuity including the period of training under the contract of employment if your establishment is one that works for less than 6 days in a week provided your completed total service is 190 days in the 5th year.

From India, Salem
amazing-world
So I should be given gratuity?
From India, Chennai
amazing-world
My company have 5 days a week policy
From India, Chennai
Prvn
Umakanthan.M Sir. Sorry to ask again about this 190days thing, there are different views about this 240days and 190days. Kindly advise if below are correct.

- 240days in 5th year is considered for organizations working for 6 or 7 days and employees working above the ground level
- 190 days is considered for organizations working for minimum 5 days and employees working "below" the ground level.

I served in an organization (which operates 5days working) for 4 years 7 months and 5 days. But my organizations says 8months i.e. 240days needed for the gratuity eligibility.

I'm just checking the possibilities to know if I can get my gratuity.

Thanks in advance.

From India, Hyderabad
Prvn
The Payment of Gratuity Act, 1972 Sec. 3
----------------
3[2A. Continuous Service.- (1) For the purpose 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
4[***] 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:
(b) for the said period of six months if the employee during the
period of six calendar months preceding the date with reference
to which the calculation is to be made, has actually worked
under the employer for not less than-
(i) ninety-five 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) one hundred and twenty days, in any other case;
1[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
applicable 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 does not
exceed twelve weeks].
(3) Where 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
for such period if he has actually worked for not less than seventy-five per cent of
the number of days on which the establishment was in operation during such
period.]

From India, Hyderabad
umakanthan53
5884

Dear Prvn,

Some employers, particularly HR managers, misconceive the phrase " an establishment which works for less than six days in a week ". Hence the confusion.

No Indian Labor Law, other than the State Shops and Establishments Acts, prescribes the maximum number of days an establishment could function in a week, month or a year. Even in almost all the S&E Acts, the provision for weekly closure day has been dispensed with now a days subject to the condition of grant of weekly holiday to employees on rotation basis.

Therefore, the phrase of functioning of the establishment would automatically refer to the weekly work schedule of the employees of the establishment only. When the employees are required to work for less than 6 days in a week, their continuous Service has to be reckoned as per the formula given under sub section (2) of Section 2-A of the PGA,1972 and not otherwise based on any literal interpretations.

One has to bear in mind the historical changes taking place in business administration era after era - ownership got separated from management after the advent of joint stock companies, tools of work were separated from the workers after the formation of Factories of large scale production and after the recent Covid-19 , employees are separated from their formal work place giving rise to the work culture of Work From Home.

From India, Salem
Prvn
Umakanthan.M Sir,
Thanks a lot for your inputs. I have conveyed the same to our organization and requested them to check the Gratuity act again in-detail.
They understood the Act and sections and agreed to process my gratuity.

Thanks to Citehr team/forum for the opportunity to discuss on issues and get possible solutions.

From India, Hyderabad

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