As per Section 4 of the Payment of Gratuity Act 1972 the eligibility for gratuity arises after continuous service for not less than five years of five years. The term 'Continuous Service' is defined in Section 2A of the Act and it further qualifies that in case the employee is employed in a mine or where it is less than six days of work in a week, then actual service of not less than 190 days or otherwise 240 days in a period of 12 preceding months from termination would suffice for calculation of one year service. So reading the two sections together leads to the validation of such claims.
In Mettur Beardsell Ltd. (represented by Its Personnel Manager), Madras vs. Regional Labour Commissioner (Central) : (Authority under Payment of Gratuity Act). 1. Madras & Others (W.P. No. 2135 0f 1987 decided on 12.6.1996) PAYMENT OF GRATUITY ACT~ 1972- 1998 LLR 1072 the Madras High Court has upheld such claim of less than 5 years actual service as eligible. The headnote reads as follows:
Sections 2(a), 2(b), 2(c), 2(e) and 2A - 'Continuous service' - Qualifying period of service by an employee -Entitlement of Gratuity - An employee rendering continuous service for a period of 240 days in a year will be deemed to have continued in service for 'one year as stipulated by section 2A of the Act -Thus an employee who has put in service for 10 months and 18 days for the fifth year subsequent to first 4 years should be deemed to have completed continuous service of five years -His claim for gratuity is tenable
To my knowledge there is no Supreme Court judgement on this point.
So there is enough basis for drshaumil to make a claim as he works for 5 days in a week and after completion of 4 years and 190 days of actual working.