Am I Eligible for Gratuity After 12 Years of Service with Short Breaks? Seeking Clarity

I had served in an educational institution for 12 years on a 3-year term basis, with a gap of 7 days in between each term. Legally, it can be proved that I performed my duties on the gap days as well, as I was in charge of admissions. All admissions during these 7 days contain my signature along with the date, which was countersigned by the Principal. Could you please clarify whether I am eligible for gratuity payment or not?

With warm regards,

Praveen K Sharma

The gaps can make you ineligible for gratuity. Gaps between each renewal have been shown on paper for this purpose only. When you quit, you can try and claim gratuity. If not agreed, use the evidence that there was no break in service at all in reality. This means here you have to collect and preserve evidence of your continuous work.

A break in service of seven days would not count under labor laws like the Industrial Disputes Act or the Payment of Gratuity Act, provided the number of days worked during a period of 12 months is not less than 240 days. Therefore, in my opinion, you are entitled to 12 years of gratuity. Contractual employment that is renewed every 3 years with a break of 7 days will not make the employee ineligible for gratuity, as was decided in the attached case.

Madhu.T.K

Dear Mr. Sharma,

You are eligible for gratuity. The gap of seven days in each term has no effect on your entitlement. You complete one year's continuous service if you work for 240 days in that year. If your employer refuses, then you can approach the competent authority.

Regards,
Prof. P K Misra

The judgment quoted by learned member Madhu is clear.

The querist is entitled to gratuity.

Dear Praveen,

The judgment copy provided by Madhu TK fully supports your case. You may take up the case in an appropriate manner with the competent authority of your State if the employer refuses to pay your due gratuity.

When seven days are considered a break in service, if you have unofficially worked during that time, it will not be calculated for the purpose of Gratuity. Without any actual working recorded and without receiving wage payment, it shall not be construed as continuity in service, regardless of Gratuity.

I differ with your opinion. You may want to refer to the proper interpretation of the definition of continuous service, as provided in Sec. 2A of the Act. The definition clearly states, "continuous service for a period if he has, for that period, been in uninterrupted service, INCLUDING service which may be INTERRUPTED on account of absence from duty without leave (not being absence in respect of which an order treating the absence as a break in service has been passed in accordance with the standing order, rules, or regulations governing the employees of the establishment), or CESSATION OF WORK NOT DUE TO ANY FAULT OF THE EMPLOYEE." So, in this case, irrespective of whether he can prove or not to have worked unofficially without a formal order, the break was not due to any fault of the employee.