I am sorry if i am posting something which is already discussed in the forum.
I worked in a company for more than 6 years. I was under a fixed term contract for two years renewed immediately on expiry without any lag of a single day and without full and final payments etc.
I want to write to the company to pay me gratuity as i think i am eligible for it.
Can you help me with some strong points/reference/case which I can include in my letter?
From India, Gurgaon
I worked in a company for more than 6 years. I was under a fixed term contract for two years renewed immediately on expiry without any lag of a single day and without full and final payments etc.
I want to write to the company to pay me gratuity as i think i am eligible for it.
Can you help me with some strong points/reference/case which I can include in my letter?
From India, Gurgaon
Yes, you are certainly entitled to and eligible for gratuity. No necessity to mention strong points or case laws at this stage.Just send a notice as per the Gratuity Rules applicable.
From India, Salem
6016From India, Salem
Pertaining to the same subject. Given that I am a contract employee, I am not entitled to any TA DA and all sort of funny allowances that companies add to the payslip to cut down on PF payments and the eventual gratuity payment to the employee. So when they say "wages", the company is supposed to take the entire fixed "fee" as the salary shouldn't it? The manner in which the breakup is made, they strategically ensure that only the ridiculous fancy termed basket of allowances are hiked year after year during appraisals. This was the primary reason for me not having applied for going on payrolls. However in the HR policies it says all employees with highlighted (on roll) in bracket who have worked for a period exceeding five years are entitled for gratuity. I am skeptical that they might point that out to hold back by gratuity. Also I have heard that the payouts received by people much more tenured than me was abysmally low because there is no DA in the salary breakup and they just got the basic into whatever calculation that comes to.
So my questions here are
1. Am I eligible for gratuity with no room for any negotiation on that if I have completed over 9 and 8 months with annual auto-renewal of contract and absolutely no gap in between?
2. Let's suppose my fixed "fee" with absolutely no further breakup or anything that can be called "allowance" is Rs 26000. This makes my daily wage Rs 1000? And so the gratuity comes out to be Rs 1,50,000? Is this calculation correct and I am not supposed to accept any other figure below this sum in my FnF as gratuity (if at all they are honest enough to consider my case for gratuity)?
From India
So my questions here are
1. Am I eligible for gratuity with no room for any negotiation on that if I have completed over 9 and 8 months with annual auto-renewal of contract and absolutely no gap in between?
2. Let's suppose my fixed "fee" with absolutely no further breakup or anything that can be called "allowance" is Rs 26000. This makes my daily wage Rs 1000? And so the gratuity comes out to be Rs 1,50,000? Is this calculation correct and I am not supposed to accept any other figure below this sum in my FnF as gratuity (if at all they are honest enough to consider my case for gratuity)?
From India
Dear anonymous friend,
Your further narrative is confusing as you have used the term ' fees ' coupled with the narration " I am not entitled to TA,DA and all sorts of funny allowances that companies add to the payslip.....".
The above narration with your statement of being on fixed term contract got renewed year after year without any break gives rise to the question whether you were a fixed term contract employee or a retainer on contract basis.
Had you been an employee employed on Fixed Term Contract basis under a contract of service, you are eligible to statutory gratuity despite the periodical renewal of the contract based on the sum total of the basic pay and dearness allowance of the last drawn wages or the entire sum if consolidated wages.
On the contrary, had you been engaged as retainer under a contract for service and whatever compensation you received as ' fees ' will automatically render you ineligible to stake any claim for gratuity as you were not an ' employee ' but only a contractor.
Sorry to state further that your response in 2022 to my answer given in 2014 also suggests whether this is an attempt to cross-check the veracity of any quasi-judicial orders dismissing your claim.
From India, Salem
Your further narrative is confusing as you have used the term ' fees ' coupled with the narration " I am not entitled to TA,DA and all sorts of funny allowances that companies add to the payslip.....".
The above narration with your statement of being on fixed term contract got renewed year after year without any break gives rise to the question whether you were a fixed term contract employee or a retainer on contract basis.
Had you been an employee employed on Fixed Term Contract basis under a contract of service, you are eligible to statutory gratuity despite the periodical renewal of the contract based on the sum total of the basic pay and dearness allowance of the last drawn wages or the entire sum if consolidated wages.
On the contrary, had you been engaged as retainer under a contract for service and whatever compensation you received as ' fees ' will automatically render you ineligible to stake any claim for gratuity as you were not an ' employee ' but only a contractor.
Sorry to state further that your response in 2022 to my answer given in 2014 also suggests whether this is an attempt to cross-check the veracity of any quasi-judicial orders dismissing your claim.
From India, Salem
No no sir, I don't have any cases going on. I just looked up the subject of gratuity pay on Google and it led me to this page and the query posted here pertains to the situation I am also in. I have no connection with any other posts here and this is the first ever time I am here.
As for the "anonymity", I simply don't want my employer to know at the moment that I am considering quitting, given that annual increments are due.
I had to look up what is retainer ship, because I panicked wondering whether the employer had put something of that sort in my appointment letter.
Coming back to the subject, again this is what is causing me paranoia given you have said that these terminologies like "fee" are leading to confusion.
To clarify again the employer has used the terminology of "Consultant" in my previous increment letter. The earlier letter raised my position to the level of manager along with the annual increment. This sudden change in the use of terminologies and the change of the term from "compensation" to "fee" is now making me wonder whether these will be used against me to deprive me of gratuity. Even on the company's internal telephone directory, until last year it showed my name and designation - "Manager - Department Name". But now it shows consultant.
Again: I am supposed to work like any other employee, ensure full attendance, be present at the time as per the roster, and put in extra hours as demanded like any other employee. I personally chose to not take the "payroll" option because the number of deductions under various categories were too high and back then my salary was quite low. Besides there was hardly any difference in treatment of the so-called contract employees and the other staff because we are entitled to every facility including use of company transport; annual leaves; using company facilities such as the library, gymnasium etc. We need to ensure punching in of digital ID card to mark our attendance. Annual leave policy applies to me. The only difference being that the salary slip has ONLY one header which is "Fee" for the month of so and so with no breakup whatsoever and no deductions in PF. Only the TDS of 10% is deducted, which I anyway claim back through IT returns. I am entitled to the company's mediclaim policy too. (PS: The added advantage being that contract employees don't have that monthly mediclaim deduction while as a govt mandate they are still entitled to it :D)
So once again my only purpose of this post was to verify if the company can misuse these tricky terminologies like "consultant", "fee" etc to deprive me of my gratuity.
From your response what I understood is:
Under the above circumstances of me not being some expert just called in as per needs like a "guest appearance" in a film, I am entitled to full gratuity.
The sum of all wages considering I do not have any such sub-header like HRA, Travel Allowance, Festival Allowance (these were what I meant as fancy allowances) or anything else which corporates invent to cut down on retiral benefits to be given to the employees. As you yourself know, several corporate employees get high salaries but the "basic" component is a very meagre sum. So my "Fee" in its entirety will be taken as "wage" for the calculation of gratuity.
From India
As for the "anonymity", I simply don't want my employer to know at the moment that I am considering quitting, given that annual increments are due.
I had to look up what is retainer ship, because I panicked wondering whether the employer had put something of that sort in my appointment letter.
Coming back to the subject, again this is what is causing me paranoia given you have said that these terminologies like "fee" are leading to confusion.
To clarify again the employer has used the terminology of "Consultant" in my previous increment letter. The earlier letter raised my position to the level of manager along with the annual increment. This sudden change in the use of terminologies and the change of the term from "compensation" to "fee" is now making me wonder whether these will be used against me to deprive me of gratuity. Even on the company's internal telephone directory, until last year it showed my name and designation - "Manager - Department Name". But now it shows consultant.
Again: I am supposed to work like any other employee, ensure full attendance, be present at the time as per the roster, and put in extra hours as demanded like any other employee. I personally chose to not take the "payroll" option because the number of deductions under various categories were too high and back then my salary was quite low. Besides there was hardly any difference in treatment of the so-called contract employees and the other staff because we are entitled to every facility including use of company transport; annual leaves; using company facilities such as the library, gymnasium etc. We need to ensure punching in of digital ID card to mark our attendance. Annual leave policy applies to me. The only difference being that the salary slip has ONLY one header which is "Fee" for the month of so and so with no breakup whatsoever and no deductions in PF. Only the TDS of 10% is deducted, which I anyway claim back through IT returns. I am entitled to the company's mediclaim policy too. (PS: The added advantage being that contract employees don't have that monthly mediclaim deduction while as a govt mandate they are still entitled to it :D)
So once again my only purpose of this post was to verify if the company can misuse these tricky terminologies like "consultant", "fee" etc to deprive me of my gratuity.
From your response what I understood is:
Under the above circumstances of me not being some expert just called in as per needs like a "guest appearance" in a film, I am entitled to full gratuity.
The sum of all wages considering I do not have any such sub-header like HRA, Travel Allowance, Festival Allowance (these were what I meant as fancy allowances) or anything else which corporates invent to cut down on retiral benefits to be given to the employees. As you yourself know, several corporate employees get high salaries but the "basic" component is a very meagre sum. So my "Fee" in its entirety will be taken as "wage" for the calculation of gratuity.
From India
It appears from your post that you are planning to leave the organization and you have doubt regarding Payment of Gratuity after your leaving as you are eligible for the same.
Please keep all the documents handy ( different designation at different time including documents at internal telephone directory ) and just giving one designation Consultant but ask to do daily routine work like other employees will not be sufficient to deprive you from payment of gratuity.
If the organization will not pay you gratuity in future , please approach to the controlling authority under PG Act and explain your position with all documents. To my opinion the ruling will be in your favor.
S K Bandyopadhyay ( WB, Howrah)
CEO-USD HR Solutions
+91 98310 81531
USD HR Solutions – To Strive towards excellence with effort and integrity
From India, New Delhi
Please keep all the documents handy ( different designation at different time including documents at internal telephone directory ) and just giving one designation Consultant but ask to do daily routine work like other employees will not be sufficient to deprive you from payment of gratuity.
If the organization will not pay you gratuity in future , please approach to the controlling authority under PG Act and explain your position with all documents. To my opinion the ruling will be in your favor.
S K Bandyopadhyay ( WB, Howrah)
CEO-USD HR Solutions
+91 98310 81531
USD HR Solutions – To Strive towards excellence with effort and integrity
From India, New Delhi
Exactly what I feared has taken place. The most recent changes made to designations and the latest extension letter issued in 2022 has a one-liner on the second page that you are not eligible for any statutory benefits as you are an independent contractor only. When I asked whether I should fill up the gratuity form with the clearance form, I was called up on WhatsApp and informed I can't avail any statutory benefits. I heard from someone that whenever someone calls on WhatsApp, they do not want their call to be recorded. I emailed the head of HR to which she didn't reply. I later texted her to which she called me up over WhatsApp just like the other HR employee and said that till the COSS is implemented, contract employees are not eligible for gratuity. I immediately raised this concern with the person marked as chairperson of the company's internal grievance cell. There was no answer to it either.
After 20 days (the policy states that grievances are answered in 20 days), I sent a reminder to her again. By now the last working date had passed. This time I get a nasty lengthy email from the company's legal team asking to know why all these 10 years I never asked why I was not marked as employee and never complained that my role wasn't of an "independent contractor" but one that was a "master-servant" relationship. They are again and again pointing out that I signed the document of extension in 2022 that mentions I am not eligible for statutory benefits and therefore this is an attempt to extort money from the company.
I have answered back saying this is rubbish because the hiring manager only wanted a full time worker and if human resource hired an independent contractor, they have hoodwinked not just the recruit, but the manager of the department as well. I also specified that even if I were to accept this clause that I didn't even read while signing which explicitly denies me statutory benefits, it will be applicable from June 2022 only and not retrospectively because none of the earlier documents had this sentence.
To this, the person whom the company's internal policy documents called "Chairperson" of the grievance committee has replied to all saying she has not been part of any grievance committee.
So we can see clearly that all the management level employees wish to stay clear of this just in case a lawsuit is filed against them and therefore got their lawyer to do the dirty job.
How to proceed here? Will just filing an appeal with the ALC suffice or a legal recourse have to be pursued. I am pretty sure that the company, a media organisation will be having friends among the bureaucrat circles also and they can arm-twist anyone.
From India
After 20 days (the policy states that grievances are answered in 20 days), I sent a reminder to her again. By now the last working date had passed. This time I get a nasty lengthy email from the company's legal team asking to know why all these 10 years I never asked why I was not marked as employee and never complained that my role wasn't of an "independent contractor" but one that was a "master-servant" relationship. They are again and again pointing out that I signed the document of extension in 2022 that mentions I am not eligible for statutory benefits and therefore this is an attempt to extort money from the company.
I have answered back saying this is rubbish because the hiring manager only wanted a full time worker and if human resource hired an independent contractor, they have hoodwinked not just the recruit, but the manager of the department as well. I also specified that even if I were to accept this clause that I didn't even read while signing which explicitly denies me statutory benefits, it will be applicable from June 2022 only and not retrospectively because none of the earlier documents had this sentence.
To this, the person whom the company's internal policy documents called "Chairperson" of the grievance committee has replied to all saying she has not been part of any grievance committee.
So we can see clearly that all the management level employees wish to stay clear of this just in case a lawsuit is filed against them and therefore got their lawyer to do the dirty job.
How to proceed here? Will just filing an appeal with the ALC suffice or a legal recourse have to be pursued. I am pretty sure that the company, a media organisation will be having friends among the bureaucrat circles also and they can arm-twist anyone.
From India
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Fixed Term Contract Employees to get Gratuity.docx
Fixed term employment extended.jpg
Fixed term employment.pdf