Anonymous
I have been working as Assistant Professor at a private University for 14.5 years. After completing continuous 5 years of service, I have taken a total of 25 months LWP (Leave without pay) for personal work in different years which is duly approved by the organization. I am already eligible for gratuity but the organization has not included the LWP months. Can I claim the gratuity for LWP months too as leaves were approved?
From United Kingdom, Manchester
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Umakanthan53
Labour Law & Hr Consultant
Vmlakshminarayanan
Sr.manager - Hr&admin
Alok-singh1
Labour Laws & Ir
Kapoorrr
Advisor(hr)
Nathrao
Insolvency N Gst Professional

monkey-singh
1

In my opinion it won't actually. The company is kind enough to not call that as a "break" in service as there are fraud establishments that do even that. If they go into those technicalities, your gratuity amount can fall down further because the first instance of eligible gratuity will be calculated for the initial five years and the "wage" would take into account the last drawn salary at the end of those five years and then independently count the remaining period as a fresh employment.
From India
vmlakshminarayanan
517

Hi,

If those leaves are approved one then those period also should be considered for Gratuity. Hope for the period of leaves without pay you took separate approval from your employer, each period wise. If the employer had officially approved the leaves ( though without salary) then it should be considered for Gratuity calculation.

From India, Madras
nathrao
3122

Leave Without Pay, being sanctioned leave will be treated as part of 240 days for calculating eligibility for Gratuity. Management should be asked to rework Grauity.
From India, Pune
monkey-singh
1

Lakshmi sir, but clause 2, section (ii) under continuous service in fact says that "(ii) he has been on leave with full wages, earned in the previous year;" for the purpose of calculating number of days worked. Getting into an argument with the employer who has not discounted years with less than 240 days of service for calculating "continuity"; but only discounted them from total number of months; would lead to other consequences isn't it? What if they say that the 6th year turned out to be a "break" in service and treat only the initial five years as "continuous" service?
From India
alok-singh1
51

Hello, In reference to the above pls go through the Payment of Gratuity Act, 1972 Section: 2A Continuous service for better and transparent result.

kapoorrr
9

The days on loss of even approved shall not be considered for the payment of gratuity. R R Kapoor Vadodara
From India, Vadodara
umakanthan53
5955

Dear friends,

The provisions of a beneficial legislation like the Payment of Gratuity Act,1972 should be liberally interpreted so as to serve the very objective and purpose of the Act.

A dispassionate analysis of the provisions of sections 2-A and 4 read with the preamble of the Act would reveal that payment of gratuity under the Act is not linked to the factor of " continuity of service " by the employee but his/her rendering of a certain length of continuous service in every year to be computed backwards with reference to the date of actual termination of employment. I am afraid that Mr.Monkey Singh's latest remarks emanate from the isolated interpretation of the term " continuous service " which in fact should be in conjunction with the provision of section 4(1) of the Act.

In this regard, while defining the term " continuous service " section 2-A (1) of the Act introduces a legal fiction by which certain specified interruptions/breaks are not to be treated as interruptions/breaks in service for the purpose of the Act. Out of the specified interruptions not to be deemed as such, two viz., leave and 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 orders, rules or regulations governing the employees of the establishment ) are the ones directly attributable on the part of an individual employee.
Section 2-A (2) quantifies the length of such continuous service in a given period of 12 months/six months as the case be in respect of certain establishments. Of course, the explanation to ss(2) includes leave with wages earned in the previous year only to amplify the phrase " actually worked ". But it does not take away the "leave" mentioned in the defining clause of ss(1) of section 2-A for the term 'leave' would imply " leave of absence " which may be with or without salary or wages.

It is also noteworthy that the 25 months of LWP was not at a stretch but in different spells falling across several subsequent years.

Therefore, these 25 months of approved leave on loss of pay should be included in the continuous service rendered for the purpose of calculation of gratuity under the Act. In case of denial, the poster can file a claim u/s 7 (4)(b) of the Act before the Controlling Authority.

From India, Salem

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