Industrial Relations And Labour Laws
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G K Sharma
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( G K Sharma )
2nd April 2008
The provisions relating to six days week and 190 days of work was provided after the ruling by the apex court in Lalappa Lingappa Vs Laxmi Vishnu Texiles Mills, Sholapur, to safeguard the interests of those employees who would be denied gratuity for want of minimum days (240) in between the years. Here also completion of 5 years is mandatory. Once eligible for gratuity, if in any year one has not worked for 240 days, that year can be counted as continuous provided he was working for at least six days in a week and had worked at least for 190 days in the preceeding year.
3rd April 2008 From India, Kannur
In your case, if you will be releived off after more than 3 months then you could have the right for Gratuity. which can be payable for 5 years of service.
Atul S. Malve
2nd May 2008 From India, Sholapur
30th June 2008 From India, Madras
Gratuity is applicable after completion of 5 year but in last year i.e. five year must complete 240 days then employee is elegible for the gratuity. after that below six month not count any day and completed six month then count full year suppose any employee worked 5 year 6.2 month then count 6 year and worked 5 year 5.9 month then only count 5 year.
6th July 2008 From India, Delhi
8th July 2008 From India, Mumbai
According to the strict preposition of the Payment of Gratuity Act, 1972 ,you are also sailing in the same boat. We have heard that one of the Hon'ble H C have given a judgement to the effect that if any employee works for 240 days & above during the fifth year then that employee will also become eligible for receiving gratuity amount but without going through that judgement no one can advised you to file a claim case before the Controlling Authority under the Payment of Gratuity Act,1972. Due to this hearsay we are facing these types of expectations in the field.
(Labour Law & Legal Consultants)
21st April 2009 From India, Delhi
Strictly according to the P G Act, 1972 the employee is not entitled to gratuity payment as he have not completed five years of service but the Hon’ble Madras HC in the case of Mettur Beard Sell Ltd Versus RLC has decided the same type of issue. It was held that any employee who completes 240 days of service in a year in the 5th year will be deemed to have continued in service for one year as stipulated by sec. 2A of the Payment of Gratuity Act. It was held that an employee who has put in his services for 10 months and 18 days for the 5 year subsequent to first 4 years should be deemed to have completed, continued service of 5 years and is entitled for gratuity. Therefore go through the judgement & discuss the matter with your management & take decision accordingly at your level.1998 LLR 1072 Mad H.C.
3rd November 2009 From India, Delhi
6th September 2010 From United Kingdom, Saint Helens
Then go through judgement of hon'ble Madras HC & then decide whether you want to file a claim case for payment of gratuity before the Authority Under the PG Act of your area. You can have the copy of this judgement in similar topics appearing on the right side of this thread itself.
6th September 2010 From India, Delhi
3rd August 2012 From India, Mumbai
Indradeb applicable for Gratuity. first i tell u one think how many days we will consider as an one year 240 days right, so in this case his complete 4 years 280 days that means he is eligible for gratuity.
Example : my previous company history I worked 4 years 11 month that means i am not eligible for gratuity ? no i am eligible for gratuity and i got the gratuity amount last year.
and i have one judgement copy
4th August 2012 From India, Kolkata
This has become a classic question amongst all fraternity of people.
Q. What is the eligibility for Gratuity?
A) Continuous service of not less than five years
Q. What is continuous service:
A. As per section 2A of gratuity act continuous service means the following:
Continuous service means period of uninterrupted service which includes:
1) Employee's all days of physical presence (i.e when he has attended work/duty)
2) Absence due to sickness
3) Absence due to accident
4) Absence from duties even after exhaustion of all leave (i.e leave without pay with
the approval from management; such absence should not be unauthorised i.e on
undisciplinary grounds like absence without any intimation, abandonment of duties
5) absence due to lay-offs (i.e when company lays off employees for their own
6) absence due to authorised strikes or lock outs
7) absence due to cesation of work not due to any fault of employee
Q. How many days makes one 01 year of continuous service?
A. Continuous service for a period of one year (12 months) means:
a) 190 days for employee's stationed below the ground like mines or
b) 190 days for establishment which work less than 06 days in a week
c) 240 days for all other cases (i.e for all establishments working 06 days a week &
above the ground)
B. Continuous service for a period of six months means:
a) 95 days for employee's stationed below the ground like mines or
b) 95 days for establishment which work less than 06 days in a week
c) 120 days for all other cases (i.e for all establishments working 06 days a week &
above the ground)
C. Continuous service for employees in seasonal employment means 75% of days worked
on which the establishment was in operation/working (be it for calculating 01 year of
continuous service or 06 months of continuous service, it will be seen whether
employee has worked 75% of total working days of the establishment)
Therefore please check the following:
1. Whether you work below or above the ground
2. Your establishment is 06 days a week or less than 06 days
Then as per your total years of service, calculate for each completed 12 months the eligibility for continuous service. It should be five years of continuous service & NOW dont get confused about the meaning of continuous service:)
4th August 2012 From India, Mumbai
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 [* * *] 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 ;
Explanation.- For the purposes 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.
8th August 2012 From India, Kolkata
20th May 2015
1)Continous service / uninterrupted service for 5 yrs.
2) 240 working should be present in a year.
3) In case of continuous service for a period 5 yrs but not completed 240 days in any year , employee is eligible for payment of Gratuity for 4 yrs not for 5 yrs.
Hope this brief will sort out the all gratuity related discussed issues.
29th August 2015 From India, Pune
Thanks for your valuable information, I am looking for support on knowing that if a employee worked for 5 years and put paper on the same month for interest to resign and he is in notice period ,whether he is eligible for Gratuity?
4th July 2016 From India, Bangalore
It is true that legislations are meant for the beneficiaries. Therefore, if the employer is ready to give gratuity to an employee who has not worked for 5 years, it is well and good. Similarly, the Controlling Authorities may also follow the same interpretations about gratuity qualifying service. But you cannot say that 240 days in the fifth year will qualify for gratuity until and unless the Act is so amended.
8th July 2016 From India, Kannur
Your post is quite confusing and provides the interpretation, as if the law does not provide for 240 days of the year to be treated as a completed year for the purpose.
The definition, as in section 2(c) states:
"(c) "continuous service" means uninterrupted service and includes service which is interrupted by sickness, accident, leave, layoff, strike or a lock-out or cessation of work not due to any fault of the employee concerned, whether such interrupted or interrupted service was rendered before or after the commencement of this Act."
"Explanation I.- In the case of an employee who is not in uninterrupted service for one year, he shall be deemed to be in continuous service if he has been actually employed by an employer during the twelve months immediately preceding the year for not less than-"
"(i) 190 days, if employed below the ground in a mine, or"
"(ii) 240 days, in any other case, except when he is employed in a seasonal establishment."
THE DEFINITION IS QUITE CLEAR.
However, can you please make it clear, which type of amendment you want for which part of the definition, as per your interpretation?
9th July 2016 From India, Delhi
9th July 2016 From India, Kannur
Interpretations differ from case to case depending upon the smartness or ignorance/laziness of the lawyers fighting the case, as judgment of the judges tilt towards the submissions of the lawyers who can convince the judge an any case. You can very well understand that point if contradoctory judgments exist in law. Otherwise, the provision of section is very much clear on the definition of 5 years of service. Provisos every here and there is quite unwarranted, when the section of law makes cear about the provision.
10th July 2016 From India, Delhi
i have completed 5 years 4 month.
so will you please confirm me m i eligible to gratuity.
someone said to me you are completed 5 years 6 month than you are eligible.
so please confirm me the status of gratuity.
do the needfull
6th August 2016 From India, Delhi
14th February 2018 From India, Chennai