Gratuity eligibelit

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ammaji rajulapati (Querist)
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03 January 2014 Friends,

I need information regarding Gratuity eligibility in case employee death less than 5 year service(ex 1 year service). at that employee eligible for gratuity?

C A S.S.Agarwal, M.Com.,LL.B,

C A S.S.Agarwal, M.Com.,LL.B, (Expert)
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03 January 2014
Some Basics about Gratuity:
Gratuity Act is applicable to all establishments, where number of employees, are 10 or more in any day of the preceding 12 months.
Charitable institutes and hospital are also covered under the act.
It includes both commercial and non commercial establishment like educational institutes etc.
Only Basic and Dearness allowance should be considered as wages for the purpose of Gratuity.
Gratuity payment formula:

Example: If an employee leave company after 10 years and his last Basic + Dearness allowance is 10000 then his gratuity will be paid as per following formula.

(10000/26)*15* 10

Please note that above formula will remain same irrespective of employee working in 5 days a week establishment.

FAQ 1: Can an employee claim Gratuity even before completion of 5 years?
Yes, An employee can claim gratuity even before completion of 5 years in followings cases:
Death (to his nominees)
Disablement

But the quantum of gratuity will be as per act.

FAQ 2: Can employer forfeit Gratuity, even if employee has completed 5 years?
Yes, employer can forfeit gratuity even if employee has completed 5 years in following cases:

If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
If the service of such employee have been terminated for any act which constitutes an offense involving moral turpitude, provided that such offense is committed by him in the course of his employment.

Please note that above act should have been committed by employee during his employment. There should be a proper enquiry held after which employee was found guilty for aforesaid act or misconduct. Once proved guilty, employer should issue termination note to employee describing about his misconduct.

FAQ 3: Gratuity Payment when employee has completed 4 year and 240 days in 5th year?
This is one the most frequently asked question and there are various views available on it.

In one of the case, Madars High Court has held that an employee who has completed 4 years and 240 working days in 5th year will be entitled for gratuity i.e. 4 years 10 months and 11 day.

Although, there is no amendment made in the gratuity act, hence the confusion. If you ask me i will take it as, if your establishment is in Madaras then 240 working days in 5th years will be considered else you can only claim when you complete 5 years.

FAQ 4: Gratuity payment in case employee has worked for more than 5 years with same employer but in different establishment?
Let’s take an example, that if an employee has worked in a company ABC for 3 years and due to some reason, he has been moved to company XYZ under same management. Employee got his Full and Final from ABC Company but not the gratuity amount as he has not completed 5 years there. He has spend another 2.5 years in company XYZ and resigned. At the time of his Full and final, will he be eligible for gratuity?

Answer is yes as both the companies are under same management and employee has completed 5.5 years to gather in both companies.

FAQ 5: Do company need to take insurance policy against LIC? Is it mandatory?
Gratuity payment is responsibility of employer. Nowhere in act, it is mentioned that employer need to take any sort of insurance policy for gratuity payment. Hence it is up to employer whether they want to take insurance policy to cover its gratuity liability.

There are various benefits of taking insurance policy for insurance company to cover gratuity liability, let’s say LIC:
Employer ensure that its liability is taken care by giving regular premium to LIC
Employer get tax rebate against that payment.
LIC also do life insurance for each employee hence in case of employee’s death, employee family get sum insured amount apart from gratuity.

FAQ 6: How much gratuity amount is exempted from income tax?
Upto Rs 10 Lacs. Click here to see notification by IncomeTax department.
FAQ 7: Can a company refuse to pay gratuity due to financial Loss to employees?
No, even if company is not doing financial well, company is bound to pay gratuity amount.

Company should ensure that it pays gratuity within 30 days from the date when gratuity become payable to an employee. Also it is responsibility of employer to notify employee about his gratuity payment even if employee do not apply for same. It is employer duty to pay the gratuity.

FAQ 8: Will an employee resigning from service or retrenched by employer will be eligible for Gratuity?
Yes, if they are satisfying the criteria of completion of 5 years. In case of employee who has been retrenched after 5 years of continuous service will get both gratuity and retrenchment benefits.

FAQ 9: Gratuity in case of contractual employee. Who will be responsible to pay gratuity?
In case of contractual employee, contractor is liable to pay gratuity but if contractor do not pay gratuity to employee then principal employer can be directed to pay the gratuity amount.

FAQ 10: Will trainee be entitled for Gratuity after completion of 5 years?
Yes. But employees who are hired for some temporary work should not be considered under gratuity act. Please download some important judgement in support of this.

FAQ 11: Company making gratuity as part of CTC is correct?
This is another most debatable topic. Basically CTC stands for, cost to company and every company takes it different way. Hence, it is up to company whether they want to make it part of employee CTC or not.

There are two views:

One, employee become eligible for gratuity only after completion of 5 years so how come company can make it part of employee CTC and what if employee do not complete 5 years and leave the company before.

Second, as it is liability of employer to pay gratuity to employee in two cases: 1) when employee competes 5 years and 2) in case of death and disablement irrespective of completion of 5 years hence employee should make it part of CTC especially when employer has taken insurance policy to cover gratuity liability.

FAQ 12: What is the ceiling of gratuity amount payment?
It is Rs 10 L. In case an employee gratuity amount is more than 10 L then company is bound to pay max 10 L. In case company want to pay more than 10 L then company can pay it as performance bonus or ex gratia. Click here to download the notification for same.

FAQ 13: How to treat number of months for the purpose of gratuity calculation after completion of 5 years?
For example, if an employee has worked for 5 years and 7 months then for the purpose of gratuity payment, 7 months will be rounded off to an year and he will get gratuity for 6 years but in case employee has worked for 5 years and 5 months then he will be eligible for 5 years gratuity payment only.

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