Payment of Gratuity Policy - section 2A mentioning 4 years and 190 days for a company operated 5 days per week?

Hi, There is confusion about the gratuity policy eligibility. The company says the eligibility of 4 years 240 days or more of continuous service as the accepted one as per the "The Payment of Gratuity Act, 1972 (the Act)". When I refer to the Gratuity Act online it says

" Section: 2A Continuous service.

(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -
The Section 2 (a) (i) -----190 days = 1 year if company operates 5 days/week.
The Section 2 (a) (ii)-------240 days= 1 year in any other case (if company operates 6 days/week).
"

Is the above information correct? Do we have such section 2A mentioning 4 years and 190 days for a company operated 5 days per week?

If yes, Please guide me.. how to convey this to the HR and company. I am in IT company

Very recently also, I've answered this query in detail and the Poster can refer to it. What is mentioned by the poster about the minimum of 190 days continuous service is correct when the establishment works for less than 6 days a week. Better the poster may write back to the HR with the extract of the provision.

Hello @Umakanthan sir,

Thanks for the response.
My company still says that only 5 years and 240 days as the eligibility criteria even though my company operated 5 work days per week.

Can you please guide me what could i do as next step.

Thanks!

Dear friend,

At times, a tactful HR manager's practical wisdom may direct him to do second fiddling to an impossible type of CEO. The issue at hand is a simple matter of interpretation of an unambiguously worded legal provision. Therefore, I am not inclined to underestimate the HR person's legal knowledge. His response might be dictated by the wrong policy stand of the organization.

In such a situation, the only option before you is to file a claim for gratuity with interest before the Controlling Authority under the PG Act,1972 for the area.

The reasoned orders most likely to be passed by the C.A strictly as per the letter and spirit of the law would be an eye-opener and make the employer change his policy in this regard.

Thanks you @Umankanthan sir,

Let me figure out on how to file a claim to the Controlling Authority.

If you have the information already, kindly share.

As far as I remember, the days worked includes weekly off, right. It is not actual days present in the office. @Umankanthan sir, can you throw some light on this?

Dear Saswata,

You are right as per the provisions of sec. 2-A of the PG Act,1972 as well as sec.25-B of the IDAct,1947 both define the term 'continuous service' in a similar fashion with the only point of difference with regard to unauthorised absence not treated as break in service as per the service regulations in this particular regard. In this connection, I would like to reproduce the observations of the Supreme Court in Workmen of American Express International Banking Corporation v. Management [ AIR 1986 SC 458 ] as follows:

" The expression " actually worked under the employer " cannot mean those days only when the workman worked with hammer, sickle or pen, but necessarily comprehend all those days during which he was in employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. "

In this thread, I think that the management's contention is based on the literal meaning of the words used in the proviso and hence they hold the employee who is required to work for less than 6 days a week has also to complete 240 days of continuous service in the 5th year to be eligible for gratuity. The concession of 190 days of service in a year is in consonence with the consequencial reduction in the total no of working days only because of less than 6 days a week of work schedule. The emphasis of the proviso is only on the weekly work-schedule of the establishment in respect of its employees including the no of weekly holidays.

Regarding filing a claim, the poster shall engage the services of a lawyer for the entire proceedings of the Controlling Authority under the Act is a quasi judicial one. Alternatively, he can also engage the services of a seasoned trade union office bearer.

https://clc.gov.in/clc/contact-list-region-wise

Dy. CLC(C), Chennai Sh. Arun Kumar 044-28277241, 28277955 support-dyclcchn[at]nic[dot]in

I found the above contact in the Central Chief Labour commissioner website. Shall I contact and file a complaint?