Is He Eligible for Gratuity and Leave Encashment? Seeking Advice on Calculation Period

Dear All,

Seeking suggestions with support on the following query.

Case Overview

1. A contract workman stopped attending duty without intimation. Required notices were issued.
2. After a long time, he filed a case in court for reinstatement with back wages.
3. The court has awarded payment of 20% wages from his last working day until the date of the award without reinstatement on duty.
4. The court has not provided any clarification regarding the payment of Gratuity, Leave Encashment, etc. However, he is requesting payment for Gratuity and leave encashment.

Query

1. Will he be eligible for Gratuity and Leave Encashment?
- If Yes, which period should be considered for the Gratuity and leave encashment calculation?
- Option 1: From Date of Joining (DOJ) till Date of Leaving (DOL)
- Option 2: From DOJ till the date of the award received from the court

In my opinion, he is eligible for both, and Option 1 should be considered for both Gratuity and Leave Encashment based on his last drawn wages (wages at the time of DOL), considering the continuous and uninterrupted services from DOJ till the last working day.

The contractual workman will be eligible for gratuity if he has continuous service as per the Payment of Gratuity Act for the years he has worked for the organization. He will also be eligible for leave pay if there is any leave due in his credit. As opined by Hemal_HR, it is absolutely right.

S K Bandyopadhyay (WB, Howrah)
CEO-USD HR Solutions
[Phone Number Removed For Privacy Reasons]
[Email Removed For Privacy Reasons]
USD HR Solutions – To strive towards excellence with effort and integrity, http://www.usdhrs.in

The operative portion of the order has to be seen to understand the legal implications. From the narration, option 1 appears legal and proper as the 20% back wages are to be seen as compensation since there is no reinstatement.

There are some basic facts that are not available for arriving at some ideas.

A) It was stated, "Required Notices were issued." What happened then? Did he reply, or were the Notices returned undelivered?

B) What action was initiated in either case? Was he terminated without conducting a domestic inquiry?

C) How did he suddenly approach the Court?

D) Did you receive a Notice, and did you appear?

E) What was stated by you in the Court?

It appears that some material facts are missing regarding the "required notices were issued." It seems the employee's service was terminated without following due process. How could there be a judicial order for reinstatement if there was no termination?