Am I Eligible for Gratuity? Seeking Advice on Extending My Last Work Day

I wish for your guidance regarding the gratuity payment. I joined the organization on 29/06/2007 and have since resigned. I will be serving the notice period, and my last day of work will be 31/03/2012.

I would like to know if I will be eligible to receive gratuity. If not, until what period should I extend my last day to ensure I receive the gratuity.

Thank you.

Eligibility for Gratuity

One who has completed not less than 4 years of continuous service and in the 5th year, has worked for 240 days, then such period will be equivalent to 5 years and that employee will be eligible for gratuity. It is as per the Gratuity Act.

Now, the party is due okay.  Good times.

You will not be eligible for gratuity unless your management accepts it. Even though we have a judgment from the Madras High Court and the Supreme Court for 4 years and 240 days for gratuity eligibility, no management will listen to this judgment unless you take it to court proceedings. The Gratuity Act clearly states that the employee will be eligible only if they serve for 5 years. Also, every company has laid down the policy for the eligibility of gratuity, which would be the completion of 5 years.

NOTE: You will win when you take this to court, but you have to spend your precious time and money, and your next employer has to allow you to attend the proceedings.

Supreme Court Ruling on Gratuity Act

Even if the act states 5 years, it was ratified by a Supreme Court order and may be read as 4 years and 240 days only. Therefore, the Gratuity Act is being superseded here.

Legal Implications for Company Policies

Secondly, no company should formulate any policy that is against the law of the land. Even if such a policy was formulated, it becomes voidable after a change in the law. Here, since the Supreme Court (or Madras High Court) has already upheld the time period, as per Article 141 of the Constitution, it becomes the law of the land, and any policy contravening this shall become illegal.

Action Steps for YPDJ

I think YPDJ should write a letter to his employer if they refuse his gratuity, covering court orders and mentioning the new penalty provision for refusing gratuity.

Dear, you are completing 5 years by 28/06/2012. Is it not possible for you to extend your resignation until that time to be eligible for gratuity?

Kumar.s.

You need to complete 5 years of full service to be eligible for gratuity.

Regards,
D. Gurumurthy
HR/IR Consultant

Please ensure that you have worked for 240 days in the first four years as well as in the fifth year too. Write a letter to your ex-employer stating the facts and claim for gratuity. If your employer still denies the gratuity, you need not go to court; simply raise a complaint to the appellate authority for this act. In this case, it will be the Deputy Commissioner of Labour in your area. It is his duty to settle the matter. You can download the necessary forms for this.

Regards,
S. Sethupathy