Dear Shri Umakanthan
Thanks for your enlightened response. While respecting your views on the issue, I am, for the following reasons, unable to persuade myself to subscribe to your view that Sections 4(1) and 2-A shall not be read jointly but independently.
1)Sec.2-A does not determine eligibility for gratuity. It only provides a formula to the employer to compute continuous service under two situations as envisaged under Sub-sections(1) & (2) of Sec.2-A.
2) The object of Sec.2-A is to ensure that an employee does not loose his claim for gratuity by literal interpretation of the expression ‘continuous service’ as it is not possible for an employee to be literally in uninterrupted service for a given period (say five years for example) in view of the contingencies of human life which require him to abstain from duty for various reasons like illness etc or his services are terminated before he completes a spell of 12 months. Thus it adopts a liberal interpretation having regard to the spirit and objectives of a beneficial legislation like Gratuity Act.
3)Sec.2-A does no more than this. It does not say that an employee is eligible for gratuity. There is not even a whisper about eligibility in Sec.2-A. No employee can stake his eligibility under Sec 2-A. An employee asserts his eligibility under Sec.4(1) only.
4)Once an employee submits his application for gratuity with details of the period of service in the relevant columns, the employer initiates the process of computation of his service period. I would like to refer to the following sequence of steps that take place from the stage of submitting application for gratuity till the making of decision to grant his gratuity to corroborate the view that both Sections 4(1) and 2-A complement each other to be read conjointly.
i) First step : Employee submits his application for gratuity with details of the period of service in terms of Rule (7) under Sec.4(1).
ii) Second step : Once the application is submitted, the scene of action shifts to Sec.2-A as under.
On receipt of application, the employer proceeds to satisfy himself whether the employee has completed five years or more by verifying the date of his joining and the date of resignation or retirement or termination as the case may be. He will verify whether the period is interrupted by any periods of break-in-service or if interrupted, whether the interruptions are permissible under law to ensure that the period is continuous. Thus this whole exercise is undertaken by the employer falls within the purview of computation of continuous service under Sec.2-A. It is inevitable for the employer to conduct this exercise as this is concomitant t o ascertaining g his eligibility u/sec.4(1).
iii) Once he is satisfied that the employee was in continuous service for 5 years or more, the employer upholds his eligibility under Sec.4(1) and grants his gratuity.
Thus the above procedural exercise, in my view, abundantly substantiates that Sec.4(1) and Sec2-A are as inseparable as the Siamese twins and need to be read conjointly only.
5) If it is so, the benefits of fictional service of one year under subsection(2) of sec.2A need to be allowed to employees in deserving cases.
However when there is a query seeking to know what is the qualifying service to be eligible to claim gratuity, the proper reply can be five years of continuous service but not four years and eight months.
B.Saikumar
Mumbai
Thanks for your enlightened response. While respecting your views on the issue, I am, for the following reasons, unable to persuade myself to subscribe to your view that Sections 4(1) and 2-A shall not be read jointly but independently.
1)Sec.2-A does not determine eligibility for gratuity. It only provides a formula to the employer to compute continuous service under two situations as envisaged under Sub-sections(1) & (2) of Sec.2-A.
2) The object of Sec.2-A is to ensure that an employee does not loose his claim for gratuity by literal interpretation of the expression ‘continuous service’ as it is not possible for an employee to be literally in uninterrupted service for a given period (say five years for example) in view of the contingencies of human life which require him to abstain from duty for various reasons like illness etc or his services are terminated before he completes a spell of 12 months. Thus it adopts a liberal interpretation having regard to the spirit and objectives of a beneficial legislation like Gratuity Act.
3)Sec.2-A does no more than this. It does not say that an employee is eligible for gratuity. There is not even a whisper about eligibility in Sec.2-A. No employee can stake his eligibility under Sec 2-A. An employee asserts his eligibility under Sec.4(1) only.
4)Once an employee submits his application for gratuity with details of the period of service in the relevant columns, the employer initiates the process of computation of his service period. I would like to refer to the following sequence of steps that take place from the stage of submitting application for gratuity till the making of decision to grant his gratuity to corroborate the view that both Sections 4(1) and 2-A complement each other to be read conjointly.
i) First step : Employee submits his application for gratuity with details of the period of service in terms of Rule (7) under Sec.4(1).
ii) Second step : Once the application is submitted, the scene of action shifts to Sec.2-A as under.
On receipt of application, the employer proceeds to satisfy himself whether the employee has completed five years or more by verifying the date of his joining and the date of resignation or retirement or termination as the case may be. He will verify whether the period is interrupted by any periods of break-in-service or if interrupted, whether the interruptions are permissible under law to ensure that the period is continuous. Thus this whole exercise is undertaken by the employer falls within the purview of computation of continuous service under Sec.2-A. It is inevitable for the employer to conduct this exercise as this is concomitant t o ascertaining g his eligibility u/sec.4(1).
iii) Once he is satisfied that the employee was in continuous service for 5 years or more, the employer upholds his eligibility under Sec.4(1) and grants his gratuity.
Thus the above procedural exercise, in my view, abundantly substantiates that Sec.4(1) and Sec2-A are as inseparable as the Siamese twins and need to be read conjointly only.
5) If it is so, the benefits of fictional service of one year under subsection(2) of sec.2A need to be allowed to employees in deserving cases.
However when there is a query seeking to know what is the qualifying service to be eligible to claim gratuity, the proper reply can be five years of continuous service but not four years and eight months.
B.Saikumar
Mumbai