Hi! Can someone tell whether an employee will be entitled to gratuity if they have worked uninterrupted for five years but have once availed LWP for about 45 days in the fifth year? Is there any ruling to support this?
Thanks,
Prasoon
From India, New Delhi
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Thanks,
Prasoon
From India, New Delhi
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Employee is very much entitled for gratuity. It was just a case of loss of pay but he was still a part of ur organization. Only in the case of rejoining the employee is not entitled for gratuity.
From India, New Delhi
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32From India, New Delhi
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In normal circumstances, a person is presumed to have continuous service if he has worked for 240 days in a year of 12 months. However, with a view to avoiding denial of gratuity to an employee who has eligible service of 5 years but has not worked for 240 days in any particular year intervening the period of 5 years, a separate ruling is in place. Accordingly, one who has worked for at least 190 days in a year and for the absence (leave without pay) without the issuance of a notice or warning letter to the employee will be deemed as having continuous service.
Therefore, if in the year in which he had taken leave without pay for 45 days, he had actually worked for at least 190 days and no notice for the leave without pay has been served on him by the employer asking him to explain why action should not be taken against him, then the year will be counted as a service year for the calculation of gratuity.
Regards,
Madhu.T.K
From India, Kannur
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Therefore, if in the year in which he had taken leave without pay for 45 days, he had actually worked for at least 190 days and no notice for the leave without pay has been served on him by the employer asking him to explain why action should not be taken against him, then the year will be counted as a service year for the calculation of gratuity.
Regards,
Madhu.T.K
From India, Kannur
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Thanks Madhu, it was a sanctioned leave, without any notice or penalty., but in case of denial do we as HR fraternity have any judgement or ruling supporting this? Thanks again. prasoon
From India, New Delhi
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From India, New Delhi
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Dear,
It is defined in the act itself. If in a particular year someone has taken unauthorized leave and some punishment is given to him, and the total number of working days comes to less than 240, then only you can think about the forfeiture of gratuity.
Thank you.
J. S. Malik
From India, Delhi
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It is defined in the act itself. If in a particular year someone has taken unauthorized leave and some punishment is given to him, and the total number of working days comes to less than 240, then only you can think about the forfeiture of gratuity.
Thank you.
J. S. Malik
From India, Delhi
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Its simple Calculation : 240x4=960 240-45=195 240x5=1200 960+195=1155 Even the eligibility of gratuity is 4.8 years of continue service i.e = 4.8x240=1152 No issue go ahead
From India, Gurgaon
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From India, Gurgaon
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Dear Prasoon,
The Supreme Court had held in Lalappa Lingappa Vs Lakshmi Vishnu Textile Mills, Sholapur, that in terms of definition of “continuous service” in section 2 (c) of the Payment of Gratuity Act, employees who remained absent without pay and had actually worked for less than 240 days were denied gratuity. Since the enforcement of this rule resulted in denial of gratuity to a number of employees whose short term absence remained unregularised it was proposed to amplify the definition of continuous service to provide
(a)that an employee working in an establishment which works for less than six days in a week and who is not in uninterrupted service for one year, shall be deemed to be in continuous service for a period of one year if he has actually worked for 190 days in the preceding year, and
(b)that for determining the continuous period of six months for the purpose of payment of gratuity, an employee should have completed half the number of days of actual work which constitute “continuous service” for a whole year.
Regards,
Madhu.T.K
From India, Kannur
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The Supreme Court had held in Lalappa Lingappa Vs Lakshmi Vishnu Textile Mills, Sholapur, that in terms of definition of “continuous service” in section 2 (c) of the Payment of Gratuity Act, employees who remained absent without pay and had actually worked for less than 240 days were denied gratuity. Since the enforcement of this rule resulted in denial of gratuity to a number of employees whose short term absence remained unregularised it was proposed to amplify the definition of continuous service to provide
(a)that an employee working in an establishment which works for less than six days in a week and who is not in uninterrupted service for one year, shall be deemed to be in continuous service for a period of one year if he has actually worked for 190 days in the preceding year, and
(b)that for determining the continuous period of six months for the purpose of payment of gratuity, an employee should have completed half the number of days of actual work which constitute “continuous service” for a whole year.
Regards,
Madhu.T.K
From India, Kannur
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Sir, i am working from 6 years in PSU organization, as my capacity office manager, So i would like to know that i am eligibile for graruity
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If your Public Sector Unit has any gratuity scheme better than the one given in the Payment of Gratuity Act, the rules stated in your standing orders about such a gratuity scheme will apply. Otherwise, you are eligible for gratuity. There is no salary ceiling for eligibility for gratuity, but the maximum gratuity payable to an employee is limited to Rs 3.5 Lakhs.
Regards,
Madhu.T.K
From India, Kannur
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Regards,
Madhu.T.K
From India, Kannur
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My wife worked in an MNC as a Tech Support Executive from February 2, 2004, until September 5, 2008, which totals 4 years, 7 months, and 3 days. She worked five days a week with two days off per week. She did not take any unpaid leave; all her absences were either due to sickness or planned leave. Is she eligible for gratuity? According to my calculation:
The total days from 02/02/2004 to 05/09/2008 is 1645 days.
The total number of off days (2 off days per week) during the working period is 468, so 1645 - 468 = 1177 days worked.
I have come across a comment stating that even if you have worked for 4.8 years, you are still eligible for gratuity:
"By mnjTiwari Re: Payment of Gratuity
It's a simple calculation: 240x4=960
240-45=195
240x5=1200
960+195=1155
Even the eligibility for gratuity is 4.8 years of continuous service, i.e., 4.8x240=1152
No issue, go ahead"
Is she eligible for gratuity? If so, how do we proceed with it? Please help.
From India, Bangalore
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The total days from 02/02/2004 to 05/09/2008 is 1645 days.
The total number of off days (2 off days per week) during the working period is 468, so 1645 - 468 = 1177 days worked.
I have come across a comment stating that even if you have worked for 4.8 years, you are still eligible for gratuity:
"By mnjTiwari Re: Payment of Gratuity
It's a simple calculation: 240x4=960
240-45=195
240x5=1200
960+195=1155
Even the eligibility for gratuity is 4.8 years of continuous service, i.e., 4.8x240=1152
No issue, go ahead"
Is she eligible for gratuity? If so, how do we proceed with it? Please help.
From India, Bangalore
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Dear Mr. Madhu,
Greetings! I am working with a private company that is a part of a big Indian business group. I have just completed 5 years with this organization, and I am quite satisfied working here.
My question is whether I can avail my gratuity money in the form of a loan from my company without leaving it, or if there is any other way to do so. I would be highly obliged if you could help me out.
Thanks and regards,
From India, Bhopal
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Greetings! I am working with a private company that is a part of a big Indian business group. I have just completed 5 years with this organization, and I am quite satisfied working here.
My question is whether I can avail my gratuity money in the form of a loan from my company without leaving it, or if there is any other way to do so. I would be highly obliged if you could help me out.
Thanks and regards,
From India, Bhopal
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Dear Rahul,
If your company is willing to give you a loan considering your long service with it, you may get it. But the loan will not be on any lien on gratuity payable because the amount of gratuity payable to an employee cannot be attached. In other words, if you fail to repay the loan, the company cannot adjust the gratuity against the loan pending from you. As per the Gratuity Act, it is payable even if the employee has not asked for it. That means it is the responsibility of the employer to pay it to an employee who has left the company within 30 days of his leaving the service. Similarly, the gratuity can be forfeited only for reasons of absolute misconduct involving moral turpitudes and for the loss caused to the company's property by the employee. Non-repayment of the loan will not come under it. Therefore, from an employer's side, I will not recommend payment of a loan to any employee on the faith that we can recover it from the gratuity!
Regards, Madhu.T.K
From India, Kannur
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If your company is willing to give you a loan considering your long service with it, you may get it. But the loan will not be on any lien on gratuity payable because the amount of gratuity payable to an employee cannot be attached. In other words, if you fail to repay the loan, the company cannot adjust the gratuity against the loan pending from you. As per the Gratuity Act, it is payable even if the employee has not asked for it. That means it is the responsibility of the employer to pay it to an employee who has left the company within 30 days of his leaving the service. Similarly, the gratuity can be forfeited only for reasons of absolute misconduct involving moral turpitudes and for the loss caused to the company's property by the employee. Non-repayment of the loan will not come under it. Therefore, from an employer's side, I will not recommend payment of a loan to any employee on the faith that we can recover it from the gratuity!
Regards, Madhu.T.K
From India, Kannur
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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