Facing Unpaid Leave: Can I Still Claim Gratuity and Basic Salary from My College?

I have been working as an Assistant Professor at a self-financing engineering college for 15 years. After completing 12 continuous years of service, the management imposed compulsory loss of pay leave of six months per year continuously for three years without considering our situation. In total, I have taken 20 months of Leave Without Pay (LWP) in different years, which was duly imposed by the institution.

My questions are:

1. I am already eligible for gratuity, but the management has not provided it. What can I do?
2. If the management tries to omit gratuity during LWP months, can I claim the gratuity for those months?
3. Can I claim the salary, at least the basic salary without Dearness Allowance (DA), for LWP months because of the compulsory leave imposed by the authorities?

I hope for your valuable and genuine replies with proofs.

Aslam

I understand that the loss of pay leaves you have taken are permitted by the management and are approved leaves. I also understand that no disciplinary action was taken against you by the management for taking leave without pay. Therefore, that period will be counted as 'continuous service' for the purpose of computing your gratuity.

Gratuity Calculation

Gratuity is computed on the gross salary, excluding certain components like commission, overtime allowance, house rent allowance, and similar allowances. There is no mandate under the Act that gratuity should be calculated only on Basic Pay and DA. Please read an article at the below-mentioned link just for academic interest.

http://madhu-t-k.blogspot.com/2024/0...lary-some.html

I am of the opinion that you should claim gratuity from the College by sending a complaint to the Controlling Authority soon.

Eligibility for gratuity and salary for leave without pay (LWP)

Eligibility for gratuity and salary for leave without pay (LWP) can vary depending on your country's labor laws and company policies. Here's a general overview:

Eligibility for Gratuity:

Length of Service: In many countries, employees are eligible for gratuity if they have completed a minimum period of service, typically 5 years.

Payment: Gratuity is generally paid at the time of retirement, resignation, or termination, provided the employee meets the eligibility criteria.

Calculation: Gratuity is usually calculated based on the last drawn salary and the years of service. Here, the "Last Drawn Salary" is the sum of basic salary basic salary plus dearness allowance.

Salary During Leave Without Pay (LWP):

Impact on Salary: During LWP, employees typically do not receive their regular salary for the days they are on leave.

Impact on Gratuity: In some places, the period of LWP might not count towards the calculation of gratuity if the employee is not on authorized leave or has not completed the minimum required service.

Company Policies: Many companies have their own policies regarding LWP and how it affects salary and other benefits. It's essential to check your company's specific policies and employment contract.

If you provide your country or region, I can give you more precise information relevant to your location!

Clarification on Gratuity and Leave Without Pay

@Abhishek-Tiwari3441579, where is it mentioned under the Payment of Gratuity Act that the "Last Drawn Salary" is the sum of basic salary plus dearness allowance?

Please be informed that during leave without pay (LWP) days, the employee is still in the service of the employer, even though not actively employed. For continuous service, what matters is whether the service has been uninterrupted. It is not the case that during LWP days, the employee's name would be removed from the Muster Rolls, and upon returning to work, he would be treated as a new employee. It is true that for unauthorized leave without pay, there will be communication from the employer stating that the period of absence will be considered as breaks in service for all benefits. LWP days can be excluded from the calculation sheet of gratuity.

According to section 2A, an employee shall be considered in continuous service if he has been in uninterrupted service for that period, including service that may be interrupted due to various reasons. It is important to note that in this particular case, the LWP was part of a management arrangement, and there was no order treating it as an interruption of service. Therefore, the employee is rightfully entitled to receive gratuity for the entire period of service.

Thank you all. Again, I have a doubt: Does an employee have to complete 240 working days each year? In total, I have fifteen years of service. In my case, management has imposed compulsory Leave Without Pay (LWP) for around six months per year, which has been repeated in the last three years. Is there any clause in our Act of 1972 that supports continuous service?

Eligibility for Gratuity and Leave Without Pay

240 days (in the case of establishments working for less than 6 days in a week, 190 days) in a period of 12 months is mandatory for eligibility. However, in your case, the leave without pay is as per the policy adopted by the employer, and there was no disciplinary action taken against you. Hence, the service will be considered as uninterrupted only. The definition of continuous service, as given in section 2A, states, "...including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as a break in service has been passed in accordance with the standing orders, rules, or regulations governing the employees of the establishment)..."

If the management is not counting it for the calculation of the gratuity amount, you can file a complaint before the Controlling Authority.