Gratuity eligibility (other than an apprentice)


Hello everyone,

I am looking for some clarifications related to Grautity.

To sum up my issues, I worked in a IT company for almost 11 years. Joined as a employee and TDS was deducted from salary under section 192 for 8 months. Then my employer changed my role as consultant and started deducting TDS under section 194J for almost 4 years 8 months. After that they moved me back into role as employee and started deducting TDS under section 192. 

I saw a post http://www.lawyersclubindia.com/forum/Employees-on-retainer-ship-consultants-eligible-for-gratuity-68331.asp#.Vgkegn1-jMo with below information.

Payment of Gratuity Act, 1972 Section: 2 Definitions.     (e) "employee" means any person (other than an apprentice) employed on wages, [3] [*] in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, [4] [and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity]. 

So my question is now, am I eligible for 11 years gratuity or just the recent period (excluding first 8 months and next 4 years 8 mnoths) which they dedcuted salary under section 192?

 
Reply   
 

BTW, i am from Tamil nadu and worked as full time resouce (between 9AM to 6PM) without any break in middle of this 11 years term.

 
Reply   
 


Advocate

You were working under the same employer if different posts.You are eligible for gratuity for the service peiod.


Total likes : 1 times

 
Reply   
 
Retired employee.

If you are still working, verify your appointment order, terms and conditions of your employment, and orally get clarification from HRD.  Those authorities should display the gratuity act at a prominent place and display the name of the designated Gratuity officer in every establishment as per law.


Total likes : 1 times

 
Reply   
 

Thanks a lot for the response. Yes I worked on same company continously for 11 years (first 8 months as Employee, next 4.8 years as consultant and rest of the period again as employee). 

 
Reply   
 

Originally posted by : G.L.N. Prasad
If you are still working, verify your appointment order, terms and conditions of your employment, and orally get clarification from HRD.  Those authorities should display the gratuity act at a prominent place and display the name of the designated Gratuity officer in every establishment as per law.

Thanks a lot for the response. I have moved out from organisation and i've got my appiontment orders for these tenure, reliving orders and experience certificates. They do not have mentioned anything about gratuity on any of these documents . Also HRD is not employee friendly and they did not intiate the gratuity process for a month (its 2 months now after I moved out), so when I applied for gratuatiy they started saying that I am eligible for the last employement period (excluding those 8 months + 4.8 years). So thought of clarifying it here before I submit my Form N to labour comissioner office. 

 
Reply   
 
Proprietor

Prepare your application for Gratuity claim in the prescribed manner for the entire period of service in the said establishment and submit it to the jurisdictional office of the Controller under Payment of Gratuity act with proof of services rendered alongwith copy of correspondence made with your employer in this regard. The said authority will examine the matter , take up hearing summoning both parties and issue suitable direction to your employer for settlement of dues.


Total likes : 2 times

 
Reply   
 

Originally posted by : H.M.Patnaik
Prepare your application for Gratuity claim in the prescribed manner for the entire period of service in the said establishment and submit it to the jurisdictional office of the Controller under Payment of Gratuity act with proof of services rendered alongwith copy of correspondence made with your employer in this regard. The said authority will examine the matter , take up hearing summoning both parties and issue suitable direction to your employer for settlement of dues.

Thanks a lot for the respose and guidance. Do I have any specific time restriction to submit the documents (as I am out of country till year end)? Or can I submit it through representative (like my wife or friend)?

 
Reply   
 
ha21@rediffmail.com Mumbai : 9820174108

Originally posted by : Kumar Ramu
So my question is now, am I eligible for 11 years gratuity or just the recent period (excluding first 8 months and next 4 years 8 mnoths) which they dedcuted salary under section 192?

TECHNICALLY, based on your available certificates /documents:
1. You worked for 8 months as an employee, on Salary Basis.  Hence you are legally not entitled to Gratuity.

2. You "voluntarily with consent" worked for 4.8 years as a Consultant on retainership "FEES" basis. Here you did NOT work as an employee on Salary basis. Hence you are legally not entitled to Gratuity, since Gratuity is calculatble only on Salary component, and NOT on FEE component.

3. Subsequently, you worked for 5.6 years as an employee, on Salary Basis. Hence you are legally again not entitled to Gratuity, since Gratuity is payable for minimum & continuous Employment period of 10 years.

4. Despite poinit no. 3, IF the Co., is paying you Gratuity for 5.6 years, THEN good enough .... No point in debating or litigating, since labour commissioner will simply not allow your legally infructuous application, more so specifically because the Co. would simply retract its inadvertent offer, not bound by law to give you gratuity.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

 
Reply   
 
ha21@rediffmail.com Mumbai : 9820174108

IGNORE ABOVE POST - an inadvertent error:

TECHNICALLY, based on your available certificates /documents:
1. You worked for 8 months as an employee, on Salary Basis.  Hence you are legally not entitled to Gratuity.

2. You "voluntarily with consent" worked for 4.8 years as a Consultant on retainership "FEES" basis. Here you did NOT work as an employee on Salary basis. Hence you are legally not entitled to Gratuity, since Gratuity is calculatble only on Salary component, and NOT on FEE component.

3. Subsequently, you worked for 5.6 years as an employee, on Salary Basis. Hence you are legally  entitled to Gratuity, since Gratuity is payable for minimum & continuous Employment period of 5 years.

4. IF the Co., is paying you Gratuity for 5.6 years, THEN good enough .... No point in debating or litigating, since labour commissioner will simply not allow your legally infructuous application for claim for 11 years, more so specifically because the Co. is not bound by law to give you gratuity for 11 years.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

Search Forum:








×

  LAWyersclubindia Menu