Gratuity Calculation For Break In Service Employee

Good Evening Friends, I am suresh working as HR-Executive.
In our organisation one of our employee is going to foriegn country for some personal reasons and he wish to come back india after one year and join our organisation.
Our management accepted his request and he is not resigning from his job. The management is not going to pay salary for this one year for him
I want to know whether this one year period will be taken as continuous service for checking the eligible criteria for gratuity. For ex: if he joined on 01-02.2003 and resigned on 16-02-2012
According to his D.O.J and D.O.L he worked for 9 years in that 9 years he had a break in service of one year.
For calculation of Gratuity : we have to take 8 years or 9 years. ( basic + DA *15/26 * ?)

Dear Sureshhensel,
You must consider 8 years of service. His being at abroad was mutual understanding between company and employee merely for the employee to secure his job post he returns. But this should not be considered as period contributed either by him or company.
At times, such decision are at company's discretion. If your management is ready to consider that one year as continuous service and wants to pay gratuity, you can very well do that.
Regards,
Hiral

IF his resignation is accepted then D.o.J. to Resigned date to calculate gratuity and if not, then D.o.J. to when employee will resigns and those days when he was on personal work will also be part of continues service because those days were permitted in written by authorised person/company.

if an employee was in unauthorized absence for one year and later he come to office regularly and his one year absence is accepted by the management.

As per Gratuity Act in sec 2A(sub sec 2) for continuous service one condition is given. I want know the exact meaning..

In section 2A (Sub section 2) it is mentioned that (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;

If an employee joined on 01.01.2003 and worked upto 31.12.2009 reguarly and he was in unauthorised absence from 01.01.2010 to 31.12.2010 and from 01.01.2011 he has worked regularly and in 01.06.2012 he resigned.

For checking the continuous of service for this employees as per Sec 2A(2) of gratuity act.

For the said one year from 01.01.10 to 31.12.10 employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made,

Here what calculation and what period of twelve calendar months they are meaning it.

Members please clarify it..

Dear Mr. Sureshhensel,

The rule for the Payment of Gratuity Act 1972, you mentioned is correct. One should have completed 4 years and 240 days (8 months approx) to become eligible for Gratuity.

In the above mentioned case by you, it is apparent that he employee has completed 5 years of continuous service and post which his return to join back has been accepted by the management. In view of the note, he is eligible to avail gratuity. However, if your management considers his joining back as a new employee during the year 2011 and if a new appointment order was issued then the earlier experience must have been void. Then count should have been ingenious from the DOJ 2011 to the relieving date.

A compnay can nonetheless, set their own rules which should not be less beneficial as compared to the provisions of the Gratuity Act. Therefore, check with your management in which way do they want to plan for that employee (The discretion of management should always stand by the Indian Labour Law).