Gratuity Calculation - Last Working Day = 15 April 2019. The employee is continuously absent since 15 April 2019

Dear All,

Good Afternoon!! Can anyone help me with Gratuity Calculation for a long absent case?

Date of Joining (DOJ) = 15 Oct 2015.
Date of Leaving (DOL) = 05 Aug 2023.
Last Working Day = 15 April 2019. The employee has been continuously absent since 15 April 2019.

Please help me determine whether I am required to pay gratuity. If yes, kindly advise me on the number of years for which I need to pay and reference the specific Section/Subsection of the Gratuity Act.

Thank you.

Hi,

The period of absence from 16.4.2019 to 4.8.2023: Is it approved by the management, and if so, has any written letter been issued?

As per Section 2A of the Act, it is clear that in the event the employee is absent from duty due to sickness, accident, leave, or absence from duty without leave, he/she would be entitled to the benefit of gratuity unless the employer has passed an order treating such absence without leave as a break in service in accordance with the Standing Orders of Employment applicable to the employee.

Hi Sir,

Management has neither issued an order of absence to the employee nor has the employee informed the reason for their absenteeism. Despite lacking information, the employee has been continuously absent. We have been marking them as on unauthorized leave since 16.04.2019 to 23.08.2023.

Now, please advise me on the legal aspect. According to the Gratuity Act, am I required to pay the employee for the period from 16.04.2019 to 23.08.2023 or not?

Hi,

It is very strange to note that when an employee was absent from work for more than 4 years, no disciplinary action was initiated by the management, and the employee was kept on the rolls for such a long period. Why was such leniency shown without any valid reasons from the employee for their period of absence? Did you follow up with the employee about their absence from duty or their proposed date of resuming back to work?

I suggest you can terminate the services of the employee by the closing hours of April 15, 2019, and in that case, the employee will not be eligible for gratuity. However, if the employee was under PF and if LOP salary was processed on a monthly basis, then you will not be able to terminate by the closing hours of April 15, 2019. In that case, you should consider August 5, 2023, as their last working date.