Gratuity In Suspension Period

An employee is suspended pending enquiry and after 3 months he was dismissed from service. During the period he was paid subsistence allowance. He has more than 5 yrs of service. Doubt is this is he eligible for gratuity for the period o suspension ?

Dear Senith,
Normally, the period spent on suspension pending enquiry by a delinquent employee has to be regularised when the disciplinary proceedings ends up either in exoneration or any punishment other than dismissal. When the disciplinary proceedings ends up in the suspended employees dismissal, the period of suspension can not be treated as qualifying service for gratuity.

As per the gratuity Act, he is not eligible for taking into consideration of suspension period for gratuity purpose because it will not be treated as working days.
But the employer should take positive approach and if this period of 3 months in that year counts for more than 6 months and add for one more year for gratuity payment, you may consider as a special case without giving room for another issue for small cause.

Dear Senith,
I would like to raise following questions?
Is the employee has completed 5 years of service before suspension pending enquiry,
Is there were fair domestic enquiry,
Is the employee dismissed then what are the charges, it was grave or ??
Would like to revert if all the queries answered, just to be specific would like to know these details.
With Regards
Manoj Tiwari

Suspension period is definitely not a qualifying service for Gratuity.Its logical and equity based point. See , delinquent employee was found indulged into illegal and objectionable activities while working on a date and on that basis his services were suspended since then and later dismissed. It is non working period , where his services were not availed by employer. Rather, you can legally forfeit gratuity under the provisions of Act, refer misconducts and forfeiture clause laid down under the Payment of Gratuity Act.
Regds,
RDS Yadav
Labour Law Advisor
navtaranghrs@gmail.com

""Is the employee has completed 5 years of service before suspension pending enquiry""
Suspension pending disciplinary proceedings ending in punishment would not be counted for gratuity.
The gratuity of an employee, whose services have
been
terminated for any act, wilful omission or
negligence
causing any damage or loss to, or destruction
of,
property belonging to the employer, shall be
forfeited
to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee 1*[may be wholly
or
partially forfeited]--
(i) if the services of such employee
have
been terminated for his riotous or
disorderly
conduct or any other act violence on his part,
or
(ii) if the services of such employee
have
been terminated for any act which constitutes
an
offence involving moral turpitude, provided
that
such offence is committed by him in the course of employment
The above extract is from the Act pertaining to when gratuity can be stopped.

Dear Senith,
The very few facts revealed by you in your query does not help us to answer the query. The P G Act has a provision to forfeit the Gratuity if the employee is dismissed from service for certain reasons. However, reasons of his dismissal has not been revealed by you. In case, he is dismissed for the reasons warranting forfeiture of Gratuity, there is no question of Gratuity, for whatever period he is under suspension.
Therefore, I am unable to answer to your query.

The question in the post is not about the forfeiture of gratuity of a dismissed employee; but only whether the period of suspension pending enquiry prior to his dismissal can be taken into account for determining the length of his qualifying service for gratuity. Dismissal from service is the maximum punishment and the period of suspension pending enquiry into the charges which form the basis of the punishment irrespective of its length automatically merges with the dismissal. Therefore, consideration of the period of suspension pending enquiry which is a part of the disciplinary proceedings does not arise for the limited purpose of determining the length of the employee's qualifying service.

Dear Tiwari Sir,
First of all I'wd like to thank for your valuable comments. Some points are also bring to you as invited. The delinquent employee had completed already 14 yrs of regular service at the time of dismissal. A fair and impartial domestic enquiry was done and all the charges against were proved. He had committed a series of misconducts such as disobeying and threatening the superiors, damaging the office records and moreover made a financial loss of around Rs.50,000/- to the company.
I this this may help you for more rich replies from you.
Thanking you
Regards
Senith.S

Then he is not entitled for gratuity, as he was dismissed for causing wilful loss to the company in terms of finances.