Dear Mr. Mahesh,
As per Section 4(1) of the Payment of Gratuity Act, which is reproduced as under-
“Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years:-
(a) On his superannuation, or
(b) On his retirement or resignation
(c) On his death or disablement due to accident or disease………”
From the above provisions of the Act the employee who has worked less than 5 years is not entitled for the gratuity.
But there is a decision of Madras High Court in the case of Mettur Beardsell Ltd., Madras v/s Regional Labour Commissioner (Central), Madras, reported in 1998 III LLN 414. In which the concerned employee had put in 4 years, 10 months and 18 days of service was held to be entitled for gratuity.
But in an another case the Hon’ble Supreme Court in the matter of Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v/s Srinivasa Resorts Ltd., reported in 2009 5 SCC 342, the Supreme Court upheld the judgment of the Andheri Pradesh High Court, by which that court had struck down as unconstitutional the provisions of the Andhra Pradesh Shops and Establishments Act by which gratuity was made payable even to employees who had not completed 5 years service as per the Payment of Gratuity Act, 1972.
In view of the judgment of the Apex court which has become law of the land it can be said the employee concerned who has not completed the eligible period of 5 years not entitled for gratuity.
Pkjain