A person was on the roll of the company for 33 years. He has not attended duties for the past 2 years due to a long illness. Available leave has been applied along with loss of pay for the balance period. Now he has expired. Please let me know if his gratuity has to be paid for the full 33 years or 31 years because, as per the GP Act, one has to complete 240 days of attendance in a year.
From India, undefined
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2From India, undefined
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Dear Param Veena, the doubt you have raised based on the statutory minimum number of days of service to be rendered by an employee in a year for the purpose of entitlement to gratuity under the Payment of Gratuity Act, 1972 is reasonable. However, if we analyze the case on hand in the backdrop of the provisions of Sec. 2-A of the Act, which defines "continuous service" not merely with reference to the number of days of service rendered by any employee but mainly on the factum of continuity of his employment in the establishment.
The entire legal fiction created by Sec. 2-A, in fact, heavily rests and revolves around the fulcrum of the employee's continuity of service in the establishment or the subsistence of his contract of employment. Since the employee had actually applied for whatever leave in his credit as well as leave on loss of pay for the entire period of the last two years in question which were not negatived by the employer nor treated formally as a break in service, the employee has to be considered to have been in the service of the establishment till the date of his death or his actual date of superannuation, whichever is earlier.
Therefore, my opinion is that the nominee/legal heir of the deceased employee is entitled to get gratuity for the entire 33 years of service during which the deceased was on the roll of the Company.
From India, Salem
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The entire legal fiction created by Sec. 2-A, in fact, heavily rests and revolves around the fulcrum of the employee's continuity of service in the establishment or the subsistence of his contract of employment. Since the employee had actually applied for whatever leave in his credit as well as leave on loss of pay for the entire period of the last two years in question which were not negatived by the employer nor treated formally as a break in service, the employee has to be considered to have been in the service of the establishment till the date of his death or his actual date of superannuation, whichever is earlier.
Therefore, my opinion is that the nominee/legal heir of the deceased employee is entitled to get gratuity for the entire 33 years of service during which the deceased was on the roll of the Company.
From India, Salem
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Gratuity-Contin uous Service-countin g broken period with same employer-Madras HC Judgment.docx
Less than 5 years service - Eligibility for payment of gratuity.pdf