Gratuity: Completed 4 years 11 months 12 days but HR is saying that you are not eligible

I have completed total experience 4 years 11 months 12 days and I have resigned there. I asked for gratuity but the HR is saying that you aren't eligible. What should I do now. I live in Delhi any reference please share with me. Your feedback will really means a lot for me.
thank you

Dear Member
Lot of debates available in the following threads, you read and gain knowledge about query on gratuity eligibility,
https://www.citehr.com/621133-gratui...-183-days.html
https://www.citehr.com/260004-gratui...ce-period.html

You are eligible for gratuity, pl quote the following judgement of MADRAS HIGH COURT

Hon'ble Justice Mr. S.M. Abdul Wahab . in W.P. No. 2135 0f 1987) decided on 12.6.1996 in Mettur Beardse Ltd. (represented by Its Personnel Manager), Madras vs. Regional Labour Commissioner (Central) & (Authority under Payment of Gratuity Act) Madras & Others (1998 LLR 1072). It was held that as per Sections 2(a), 2(b), 2(c), 2(e) and 2A of PAYMENT OF GRATUITY ACT 1972 - '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 P.ut in service for 10 months and 18 days for the fifth year subsequent to first 4 years should be deemed to have completed continuous s6rvice of five years -His claim for gratuity is tenable.

Your HR is right that you are not eligible for gratuity as not completed 5 years of service and this is as per the Act.
You send a lawyer notice to your employer(MD) that as per the judgement passed in W.P. No. 2135 0f 1987 by the Madras High Court in the matter of "Mettur Beardse Ltd"., you are eligible. It will be well and good if your employer is considering this plea. Otherwise you have to go for legal case to pass an order in this direction.
Although the High Court of Madras passed an order in this direction in 1996 still neither the Govt nor the Trade Unions could insert the interpretation in recent Social Security Code of 2020.

You send a Gratuity claim form to your employer by RPAD or courier and if they refuse or do not respond approach the Gratuity authorities

Thank you so much for your valuable reply.
I will update status.

Dear friends,

This topic remains a bone of contention still now only because some people have a strong premise that the decision of one High Court on a particular issue is not binding on the other High Court. It is also equally true that a division bench of a High Court cannot overrule the earlier decision of another bench of the same Court on the same issue and the only option available is to refer it to a larger bench. At the same time, it cannot be simply brushed aside on pure technical grounds that uniformity of dispensation of justice has to be ensured while interpreting the provisions of a Central Law which applies across the country alike. Therefore, in the absence of a judgment of the Supreme Court or any High Court on the interpretation of the provision of a Central Law, no harm in following the ratio decidendi of the judgment of a single High Court which alone had the opportunity of adjudicating up on such an issue of the same Central Law.

Moreover, if we juxtapose the definition of the term " continuous service " under sec.25B of the ID Act,1947 and under sec.2A of the PG Act,1972 both are similar only. To some extent the latter is more beneficial to the employee in as much as it covers the spell of unauthorised absence not declared as break in service under the service regulations.

How the term " continuous service" u/s 25-B of the IDA,1947 should be interpreted had already been well set down by the Supreme Court in Surendar Kumar Verma v. Central Government Industrial Tribunal [1980(4) SCC 433 ] and Mohanlal v. Bharat Electronics Ltd., [ AIR 1981 SC 1253 ].

The interpretation of sec.2-A of the PGA,1972 by the Madras High Court in Mettur Beardsell Ltd. v. the Regional Labor Commissioner (Central) [1998 LLR 1072 ] is based on the rule of beneficent construction of interpretation of statutes only and similar to those of the Apex Court in the cases mentioned supra though no direct reference to them in the judgment, if I remember correct.

Reverting back to the newly enacted Code on Social Security,2020 in this regard, section 54 of the Code which deals with continuous service for the purpose of gratuity is verbatim the same that of sec.2-A of the PGA,1972. Hence, contrary to the opinion of our learned friend Mr.Prabhat, the judicial interpretation of the same terms pertaining to old and new laws on the same subject will hold good.

Therefore, if the employer refuses to pay gratuity to the poster on the wrong premise of non-binding nature of the Madras High Court decision to claims of gratuity from other states, the poster is sure to get it with interest on adjudication .

Thank you so much sir for giving the time on this issue.
As suggested I will do the same.
If any challenge face then I'll update the status.