Dear friends,
Among the 5 learned members participating in this discussion so far, 2 members ( Mr.Rao & Mr.VKS ) are certainly in favour of the questioner's eligibility for gratuity under the Payment of Gratuity Act,1972 for the entire service rendered by him under the same employer including the Fixed Term Contract Service while the remaining 2 ( Mr.Pavan & Mr.Ashutosh ) are not because of the different natures of the FTC service and the subsequent regular service as well as the non-completion of the minimum qualifying continuous service stipulated under the Act by the questioner in either case; the 5th member Mr.Gajendra Verma has expressed his inconclusiveness based on the questions of whether the questioner was an employee and change in the P.F number and therefore suggested to leave the matter to the decision of the Controlling Authority under the P.G Act,1972.
Therefore, let me also try and see whether would I be able to contribute some thing substantial to resolve the issue.
First and foremost, the Payment of Gratuity Act,1972 is, in itself, a complete code for the matter of gratuity in respect of industrial employment. Therefore, it is independent of any other Labor Law except for the purpose of its application u/s 1(3) of the Act.
Similarly, the definition of the term "employee" u/s 2(e) of the Act, as it stands today, is a wholesome definition covering all people employed for hire or reward. There is no distinction in respect of the pattern of employment or method of payment or its quantum. What is important is that the person claiming gratuity under the Act should have been "employed" under a " Contract OF Service " and not " engaged" under a " Contract FOR Service ". In essence, as per the observation of the hon'ble Patna High Court in Sukhandan Thakkur v. State of Bihar [ ILR 35 Pat I ] " employment means not only an appointment to any office for the first time but also the continuity of that appointment ". It follows therefore, a Fixed Term Contract of service is also a contract of service and an FTC employee is also an employee under the Act as the three ingredients of the concept of employment viz., employer, employee and the contract of employment are present without ant doubt.
From 19-07-2012 to 28-04-2014, the questioner has worked as an FTC employee in the establishment; from 29-04-2014 to 10-08-2017, he has worked again in the same establishment. Actually there is no break in service. Employee and Employer are being the same while the contract only got modified from that of a fixed contract to a perennial contract. As his entire length of service under both the contracts in the same establishment is more than 5 years, he is eligible for gratuity. If the employer refutes this proposition and refuses to pay him gratuity, the questioner can approach the Controlling Authority with a claim u/s 7 of the Act