Queries
kprasoon 165
Dear Mr. Saswatabanerjee,

spending 4 months in class room session and another 6 months spent on projects will no way support the employers stand in denying the gratuity benefits.

The moment an employment contract (employment letter) is issued by the employer and the same is accepted by the employee, Employer-Employee relationship is established and employee is eligible for all statutory benefits.

Denying this guy the gratuity benefit is illegal and an offence under the payment of gratuity act.

Payment of grtauity act is very clear in defining the term 'EMPLOYEE'. No manipulation and twisting of words is possible. This act do not make any distinction between trainee, probationer, casual, temprory etc.

Also I want to know is it proper to suggest not to ask for statutory rights just because employer may give negative feedback. I also represent Employers and have more than 12 years of core experience in such matters but I totally disagree with you.

We should guide the people to open their mouth against injustice and not to keep mum in fear of negative feedback.

Guidance should be positive not negative for whatsoever reasons.

regards,

Kamal
11th May 2013 From India, Pune

The fact that the appointment letter says it will not be considered a part of service period, coupled with the fact he was not in job for 4 months is enough to establish that at least those 4 months is not to be counted in service period. The next 6 months can be contested, I do not know what decision a court will make on that part.

Just because a matter is negative does not mean you should suppress it and give wrong hopes to someone who asks for your advice. I believe in giving a balance view and letting the person make his own decisions as to whether it will be worth pursuing. He needs to judge whether 2.5 months salary is worth negative feedback from his first employer later in life.

Btw, I do not consider it injustice when he himself has signed a letter accepting training on the ground that it is not to be counted as service period. In any case, I do not care about justice, only about the legal impact of the circumstances and of the impact on his future career. As I have said, he is the best judge of whether he will or will not proceed on a particular path.


11th May 2013 From India, Mumbai

kprasoon 165
1.) The employer is deducting EPF contribution from his salary from day one. It means this guy was employed on WAGES from the day of his appointment.
Payment of Gratuity Act clearly defines Employee as "any person (other than an apprentice) employed on WAGES........".
If this guy was getting WAGES then where is the dispute in treating him as an employee ? Attending a class or playing in the ground has nothing to dispute his claim as an employee.
2.) Any clause mentioned in a contract which is against the law of the land is null and void from the very begining. So even if there is something mentioned in the appointment letter which is contradictory to the act has no value at all.
3.) In M Selvadurai vs. Neyveli lignite Corporation Ltd, 2011, LLR 457, the Hon. Madras High court has ruled that "Gratuity act not be denied to an employee merely on the basis of the undertaking signed by him that he will not claim gratuity for the past period."
regards,
kamal
11th May 2013 From India, Pune

The problem, kamal, is not with what's in the letter
It's with the fact that the person was in college for 4 months and not working. He was not coming to the factory, not doing work of any kind. For the next 6 months of project time, is it shown as attendance in the muster ? Or is it shown at part of college attendance ?
It is very likely that the courts (and the authority under gratuity act) will consider that period as not in service. The company will show that they were doing this as a part of their csr activity or something. And that they paid pf as a goodwill gesture. If packaged properly, it will stick. The employee must take that possibility into consideration. If he can convince the labour commissioner (or the designated authority) that it was service period, then so much the better for the employee.

11th May 2013 From India, Mumbai

Saswata banerjee Sir,
there are few clarification i want to make to your reply.
1. my work is purely office work (i am, In design field), i do not go to factory.
2. my company work profile is EPC/CEPCM Project. which i have mentioned that in remaining 8 months of training, i am working in these project as assigned by company.
3. in the time of training,though we are in classroom of a college, our Timesheet (which is a measure of attendence in our office) was being filled as "ON OFFICICAL TOUR". after that we have to fill our timesheet according the work we had done but that was under "ON THE JOB TRAINING".
4. i have all attendence records with me..
but after going through all reply, i find that i have to file a complaint sort of thing if my company is not providing me gratuity.
is there no method to clear their logic that the training should be also consider as "IN SERVICE", if there is no discontinue between the training and service??
13th May 2013 From United States, Ashburn

Ms. Banerjee,

In reference to your quote

As an IT person, I have experienced this -

IT companies hire lots of people in anticipation of a project, and give them appointment letter, orients them and inducts them.

However if the aniticipated project is not fetched, all these people are made to sit on bench (doing nothing) until the next project is bagged.

Is this employees fault?

The employee-employer relationship is established from the day the appointment letter was issued by the company and the same was signed by the person. Till the point the person signs the appointment letter, we call him/her candidate. Thereafter he becomes an employee.

2ndly, getting work done and appointing the right work is the task of the employer,

Prakash was given wages/salary from the very first day, and all the statutory deductions were made. And even if we have to give the benefit of doubt that he was working as an apprentice for the said 4months or 12 months, I do not think apprentices are covered under PF act.

So there is no grounds to deny the service.

About the service bond, I would again like to clarify that as per the bond Prakash is expected to serve for a min of 4 years post 1 year of training. It didn't mention anything of the said 1 yr training period and has not linked it to the employee-employer relation.

I hope this was able to convince you that he's very much liable to gratuity.
13th May 2013 From India, Mumbai

Hi Praksh,
Gratuity act do not define applicability on the kind of the work so irrespective of the work you do, you are liable to gratuity if you have 5 years of continuous service.
Again as i said a break in service due to earned leaves / accident or diablement / strike / lock-out / project not in hands / any reason by which employee is not at fault is not a break in service.
You first go to the HR of your company and seek guidance. Ask what is the tenure of your employment (just casually to not to give any hints) and you'd know.
If it is anything below 4years and 10 months, seek clarification and then we can take things further.
Hope it helped.
13th May 2013 From India, Mumbai

1. Training is a part of continuous services. For gratuity it should be considered.
2. In case of resignation if the five years of services are completed before last day of working then gratuity is payable. No matters what is the
resignation date of employee.
3. Five years of services needs to be completed, after the services of five years 0.5 clause is applicable but not before five years.
13th May 2013 From India, Ahmadabad

Prakash,

By all means, file a complain to the gratuity authority if the company refuses.

Before that, file an official request for gratuity in form I as required by the act. Let the company issue a formal refusal, which you can take to the authority. It's a good thing you have all details with you.

What I was trying to warn you about, is that the company has some grounds for refusing to count the first 4 months. Irrespective of what the time sheet says, you were not in office but at a classroom training in a college. That can be construed as not in service. They will claim that as a part of csr, etc they paid for your training and gave you a stipend. Be ready for that and prepare to counter it.

On your side, the wording of the appointment letter, followed by the "confirmation letter" and the bond applicable from day one, along with their decision to pay PF from day one are the positive factors. Ultimately it is the way a matter gets presented in court or before the labour officer is what counts.


13th May 2013 From India, Mumbai

Ankita,
I am a man, not woman :)
Anyway, what everyone seem to have missed is the nature of training.
The employee was not given a normal training in the company premises but was paid to do a 4 month course at a university / college. During that time, there was no connection with office. It is a ground the company is going to use to cut off at least the first 4 months. And they are likely to be able to convince the authorities on it. He needs to forewarned and prepared for it.

13th May 2013 From India, Mumbai


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