Advocate Vani Sharma

Questions Answered by Advocate Vani Sharma (25+ answers)

Q: Gratuity denied after 4 yrs 10 months – need legal advice (India)

Hi all, looking for legal guidance on gratuity eligibility under the Payment of Gratuity Act, 1972.Details: • DOJ: 28 Apr 2021 • Resigned: 23 Nov 2025 • LWD: 23 Feb 2026 • Work week: 5 days • Total service: ~4 years 10 months • Days worked in 5th year: >240/190 days • Gratuity deducted annually @4.81% as part of CTCEmployer stance:HR says gratuity isn’t payable as I haven’t completed 5 calendar years, based on their compliance vendor’s view.

Advocate Vani Sharma answered
As an experienced labour law practitioner, let me clarify your position under the Payment of Gratuity Act, 1972.Under Section 4 of the Act, gratuity becomes payable upon completion of five years of continuous service, except in cases of death or disability. However, “continuous service” is defined under Section 2A, which states that if an employee has worked for 240 days in the fifth year (190 days in certain establishments like mines), the service is deemed continuous.Now applying your facts:DOJ: 28 April 2021LWD: 23 February 2026Total service: Approximately 4 years and 10 monthsDays worked in 5th year: More than 240 days5-day work week (which strengthens your 240-day qualification)Several High Courts, including the Madras High Court in Mettur Beardsell Ltd. v. Regional Labour Commissioner, have held that completing 4 years and 240 days qualifies as completion of five years for gratuity purposes.Therefore, if you have completed 240 days in the fifth year, you are legally entitled to gratuity. The employer’s argument of “five calendar years” is not aligned with the judicial interpretation of continuous service.Also, gratuity being shown as 4.81% in CTC does not dilute your statutory right. It is a statutory obligation, not discretionary.If they refuse payment, you may file a claim before the Controlling Authority under the Act within the prescribed limitation period.

Q: Non payment of Salary by my company and also illegally asking a notice

My company did not paid my 1st month salary by saying your performance is not we expected as target is not linked with my basic salary also they are saying you immediately resign so you have to give 60 days notice buyout but the reason for my resignation is non payment of Salary after asking many times.

Advocate Vani Sharma answered
In my opinion, the company’s action is not legally sustainable. If you have worked for the entire month and performed your assigned duties, the employer is under a legal obligation to pay your salary. Basic or fixed salary cannot be withheld merely on the ground that your performance did not meet expectations, unless there is a specific written clause in the appointment letter clearly linking the fixed salary to performance targets. Normally, performance conditions are attached to incentives or variable pay, not to the basic salary.Further, if the company has failed to pay your salary despite repeated requests, it amounts to a breach of the employment contract on their part. In such a situation, if you decide to leave because of non-payment, it cannot be treated as a voluntary resignation in the ordinary sense. When the employer commits the first breach, they cannot insist upon strict compliance with the notice period clause or demand a 60-day notice buyout. Legally, a party who is in breach cannot take advantage of its own wrong. You are entitled to claim your earned salary, and the demand for notice pay appears unjustified. Don’t give resignation voluntarily.