Hi, I worked for a wealth advisory firm as a financial analyst from 16th April 2012 till 24th feb 2017. I worked for more than 4 yrs and 240 days without any breaks in employment. They are denying to pay me gratuity saying 240 days rule is applicable for people under mines (below ground) and for those who are not continuously employed for the 5th year and i was fully employed for 5 days in a week with them since 16th April 2012. So, i want to know that is my company right or can i raise a dispute against them? Regards
From Canada, Calgary
From Canada, Calgary
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Under Section 4 of the payment Gratuity Act 1972 gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than 5 years.
Termination of employment may result from
superannuation,
retirement,
resignation,
death,
disablement due to accident/disease.
As held in the case of darshan Engineering Works vs controlling authority where an employee continues to work after superannuation he will be entitled to gratuity for the entire period and not only up to his superannuation.
Under explanation to section 4(1) disablement means such disablement as incapacitate an employees from the work which he was capable of performing before the accident or disease resulting in such disablement. Under Section 4(4) if an employee continue in his is current employment after disablement at reduced wages, the gratuity for the period upto his disablement is to be calculated at such wages as he was being paid before disablement. The gratuity for the period after disablement is to be calculated on such reduced wages.
Under provision 1 to Section 4(1), the provision of continuous service of 5 years shall not be necessary where did termination of employment happened due to death or disablement. In case of death the amount of gratuity be paid to the nominee. If there was no nomination made gratuity shall be paid to the heir. Where the nominee or heir is a minor then the amount of gratuity shall be submitted to the controlling authority. The minor can use this fund when he attains majority.
Continuous service is defined under section 2-A, means a period of uninterrupted service including service which may be interrupted on account of
sickness,
accident,
leave,
layoff,
strike,
Lockout,
cessation of work not due to any fault of the employees and
Absence from duty without leave(not being absence in respect of which an order treating the actions as break in service has been passed in accordance with d standing orders, rules or regulations governing the employees of the establishment).
As was held in the case of Dalmia Magnesite Corporation vs regional Labour Commissioner Madras if this service is interrupted for reason other than mentioned above it shall be deemed has not been continuous service.
Where an employee not being an employee employed in a seasonal establishment is not in continuous service for any period of 1 year, shall be deemed to be in continuous service under the employer if during the period 12 calendar months preceding the date with reference to which calculation is to be made, he has actually worked under the employee for not less than 190 days in the case of an employee employed below ground in a mine or any establishment which work for less than 6 days in a week and 240 days in any other case. Under clause 2 of section 2A when determining the continuous service for any period of 6 months rather then 1 year for Payment of Gratuity, the number of days the employee should have actually work should be half the number of days actually work which constitutes continuous service for a period of 1 year. What this means is if we are calculating gratuity for a period of 6 month rather than 1 years then 190 days will be replaced by 95 days and 240 days will be replaced by 120 days.
For the number of days an employee has been laid off under an agreement or as permitted by standing orders made under the industrial employment standing order act, 1946 or under the industrial dispute act, 1947 or under any other law applicable to the establishment he shall be deemed to be in continuous service.
Like this if an employee has been on leave with full wages that where earned in the previous years or he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment shall be Deemed to be in continuous service.
If a female has been on maternity leave and the maternity leave is not exceeding 12 weeks, she shall be deemed to be in continuous service.
Under clause 3 of section 2A in case of seasonal establishments acumen shall be Deemed to be in continuous service if he has worked for a period constituting 75% of the number of days on which the establishment was in operation insert 6 months or 1 years.
See this for total Payment of Gratuity Act, Rules, Forms, Returns & All Other Information
From India, Kolkata
180Under Section 4 of the payment Gratuity Act 1972 gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than 5 years.
Termination of employment may result from
superannuation,
retirement,
resignation,
death,
disablement due to accident/disease.
As held in the case of darshan Engineering Works vs controlling authority where an employee continues to work after superannuation he will be entitled to gratuity for the entire period and not only up to his superannuation.
Under explanation to section 4(1) disablement means such disablement as incapacitate an employees from the work which he was capable of performing before the accident or disease resulting in such disablement. Under Section 4(4) if an employee continue in his is current employment after disablement at reduced wages, the gratuity for the period upto his disablement is to be calculated at such wages as he was being paid before disablement. The gratuity for the period after disablement is to be calculated on such reduced wages.
Under provision 1 to Section 4(1), the provision of continuous service of 5 years shall not be necessary where did termination of employment happened due to death or disablement. In case of death the amount of gratuity be paid to the nominee. If there was no nomination made gratuity shall be paid to the heir. Where the nominee or heir is a minor then the amount of gratuity shall be submitted to the controlling authority. The minor can use this fund when he attains majority.
Continuous service is defined under section 2-A, means a period of uninterrupted service including service which may be interrupted on account of
sickness,
accident,
leave,
layoff,
strike,
Lockout,
cessation of work not due to any fault of the employees and
Absence from duty without leave(not being absence in respect of which an order treating the actions as break in service has been passed in accordance with d standing orders, rules or regulations governing the employees of the establishment).
As was held in the case of Dalmia Magnesite Corporation vs regional Labour Commissioner Madras if this service is interrupted for reason other than mentioned above it shall be deemed has not been continuous service.
Where an employee not being an employee employed in a seasonal establishment is not in continuous service for any period of 1 year, shall be deemed to be in continuous service under the employer if during the period 12 calendar months preceding the date with reference to which calculation is to be made, he has actually worked under the employee for not less than 190 days in the case of an employee employed below ground in a mine or any establishment which work for less than 6 days in a week and 240 days in any other case. Under clause 2 of section 2A when determining the continuous service for any period of 6 months rather then 1 year for Payment of Gratuity, the number of days the employee should have actually work should be half the number of days actually work which constitutes continuous service for a period of 1 year. What this means is if we are calculating gratuity for a period of 6 month rather than 1 years then 190 days will be replaced by 95 days and 240 days will be replaced by 120 days.
For the number of days an employee has been laid off under an agreement or as permitted by standing orders made under the industrial employment standing order act, 1946 or under the industrial dispute act, 1947 or under any other law applicable to the establishment he shall be deemed to be in continuous service.
Like this if an employee has been on leave with full wages that where earned in the previous years or he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment shall be Deemed to be in continuous service.
If a female has been on maternity leave and the maternity leave is not exceeding 12 weeks, she shall be deemed to be in continuous service.
Under clause 3 of section 2A in case of seasonal establishments acumen shall be Deemed to be in continuous service if he has worked for a period constituting 75% of the number of days on which the establishment was in operation insert 6 months or 1 years.
See this for total Payment of Gratuity Act, Rules, Forms, Returns & All Other Information
From India, Kolkata
you can approach the controlling Authority for denial of Gratuity on the ground that you have not been in Employment for 5 Years Continuously.Submit your Application/ arguments in writing, wait for the matter to be adjudicated.The Company is well within its right to refuse Payment of Gratuity.However, as aggrieved Employee, you can question the action of Management before the Controlling Authority.
From India, New Delhi
From India, New Delhi
As per Section 2(A) of the Gratuity Act (“Act”), if in case employee is not in continuous service of one year, he/she shall be deemed to be in continuous service of one year if he/she has, immediately preceding twelve calender months, worked under the employer for not less than –
o 190 Days (in case of employee employed in mines below ground)
o 190 Days (in case if employee employed in an establishment which works for less than six days in a week)
o 240 Days ( in any other case)
There are many judgments wherein the respective Courts have confirmed that the workmen, who is in continuous service and completed 240 days in each calendar year and being not seasonal employees, they are entitled to the benefit of Sections 4 and 7 of the Act.
From India, Delhi
o 190 Days (in case of employee employed in mines below ground)
o 190 Days (in case if employee employed in an establishment which works for less than six days in a week)
o 240 Days ( in any other case)
There are many judgments wherein the respective Courts have confirmed that the workmen, who is in continuous service and completed 240 days in each calendar year and being not seasonal employees, they are entitled to the benefit of Sections 4 and 7 of the Act.
From India, Delhi
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Madras HC judg regarding gratuity is applicable if workmen is working 4 years 240 days..pdf