Gratuity and pf payable to consultants (Not from a tax perspective)


Hi, I wanted to know if a consultant will be eligible for gratuity and PF? If yes, under what terms? I have been working as a consultant since 3 years and I want to know if I can claim gratuity and/or PF. It will be of great help for me  Thanks.

 
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Advocate

You have to indicate the nature/kind/type of consultancy being given by you.

Are you in full time employment with the organization?

What is your working timings?

Whenever the organization makes payment to you, are they deducting TDS (tax deduction at source)?

 
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Thank you for your response Sir Ramachandran. My answer to your queries -

1. My work is related to checking product desgins and approving them.

2. Yes employment is full time. I have been working since past 3 years.

3. No specific working timings.

4. Flat TDS is deducted at source 10% irrespective of the salary slab.

 

 

 
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Advocate

You are not an employee and the Organization is also not treating you as an employee.  Therefore you are not entitled to either PF or Gratuity.

 
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Thank you for your response.

I wanted to bring it to your notice that there is a certain degree of control that is exercised, won't that create an employee - employer realtionship?

My collegue has been working since past 8 years, will she be eligible for PF or Gratuity? Even her role is the same. The contract terminated in between even once and have been contionusly working as a consultant for the same employer. 

It will be ehelpful if there are there any judgements that state "Consultant or Retainers are not entitled to Gratutity or PF" or visa versa. Is there a specific set of guidelines laid down for the same?

I appreciate your help and your impromtu response. 

 
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FIN

You are facing 2 challenges;

Employer-employee relationship

Break in between

You have to establish employer-employee relationship and then artificial break in service to avoid payment of gratuity..

It would be an uphill challenging tasks......

 
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FIN

One input is given below and you may relate matter at your hands…

http://www.lawyersclubindia.com/forum/Employees-on-retainer-ship-consultants-eligible-for-gratuity-68331.asp#.Vgkegn1-jMo

Approach your own very able senior LOCAL counsel of unshakable repute and integrity specializing in Labor/Service matters and having successful track record in such matters ……and worth his/her salt……

 

Or negotiate with employer for an out of way payment ….

And in future be careful while the agreement to be signed is placed before you to sign..for Insertion of clauses that can be favorable..

Or Don’t work for ‘Contract for work’….. and prefer clear employer-employee relationship and clear acceptance of employer to provide PF,ESIC….despite remuneration/compensation/salary/CTC offered..

 
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Thank you for your response Mr. Kumar.

The precedent that your referring to is related to Income Tax. However if there is a High Court Judgment talking on the relevant points than that would be more helpful in determing the eligibilty. Request you to share more precedents (if any) delivered by any High Court.

Thank you.

 
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FIN

Alright...

In the meantime seacrh yourself as well and approach a very able senior LOCAL counsel of unshakable repute and integrity specializing in Labor/Service matters and having successful track record ..and worth his/her salt............with all docs and inputs....and discuss in person..

 
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