Is an Employee Eligible for Gratuity After Absconding Twice? Seeking Legal Insights

Seeking Advice on Employee Gratuity Eligibility

Hello everyone. I would like to seek advice on a practical issue. An employee joined the establishment in 2006 and worked until 2009. In 2009, he absconded, and after a reminder letter and formalities, he was terminated. In 2013, he claimed a job in the Labour court, and following advice from the Labour office, the company rehired him in 2015. The case continued for 2 years, but the labour court did not advise the company to make any payment for the period from 2013-2015.

After the labour court advised rehiring the employee in 2015, the company followed through, employing him in one of its units under the same group. The employee worked there for 2 months and then absconded. The company repeated the same formalities as done in the previous absconding case.

Now, the employee has filed a case in the labour court demanding gratuity from 2006 to 2015. Is he legally eligible to receive the gratuity or not? Kindly advise.

Today from India, Dhanbad

I think the use of correct terminology denoting the legal forums such as Labor Officer, Labor Court, etc., and the forms of their disposal of the case brought to them in a post seeking some clarification would help both the poster and the respondents understand the query in the right perspective. Any dispute of non-employment raised before a Labor Officer may be disposed of through an agreed advice or a settlement under section 12(3) or a failure report of conciliation under section 12(4) of the ID Act, 1947, respectively. However, such a dispute before the Labour Court would be disposed of by an order called an award only.

Therefore, clearly state whether he was given re-employment before his second termination on the basis of the advice of the Labor Officer or on the basis of the award of the Labor Court and their contents as well.

Dear Friend, the employee was terminated in absentia, adhering to all formalities. After due inquiry and the disciplinary process, the employee should have been terminated from service and discharged from the organization with all admissible emoluments. I hope you have adhered to all formalities. In this case, there is no question of rehiring the employee under any circumstances. The reason is now known where you have rehired; do not use the word 'rehire.' The employee is new, and the service to the organization is also fresh. There is no need to give back wages as he had put in 2 months and then absconded; therefore, you have followed the same procedures of termination.

1) If you are true to your services, there is no need to worry about the labor office. Following the disciplinary proceedings will give you the advantage of termination, although there is always doubt in these areas.

2) If you have not followed the procedures, please consult a lawyer and complete the process.

3) If the individual/absconded employee causes trouble for your organization, file a labor complaint with the labor office and inform the police about his unauthorized absence. Take action to resolve the situation in your favor and remove him from services.

4) There is always another way to handle such troublesome employees without hesitation. Your organization is the one you have to lead. Never succumb to any kind of pressure if you are true to your services.

Dear Amlan,

It depends on what order was passed by the Hon. Labour Court in the matter. If the order states reinstatement with back wages and continuity of service, then gratuity is payable. We can give the proper advice only after scrutinising the order of the Labour Court.

Thank you, Mr. Gopinath & Mr. DMC123,

For the advice and any other suggestions you would like to share pertaining to the conciliation details I have provided above.

Payment of Gratuity and Continuous Service

The question is about the payment of gratuity. If there was no break in service, the individual is entitled to gratuity. When the individual was hired as a result of conciliation proceedings, whether it was considered reemployment or not, the payment of salary during the intervening period is irrelevant. Please refer to the definition of continuous service under the Payment of Gratuity Act, which states that unless an order of a break in service as per the standing order is issued, the individual would be deemed to be in service. Therefore, the wording of the agreement would be of utmost importance.