Umakanthan53
Labour Law & Hr Consultant
Riteshmaity
Labour Law Advocate
Chennururayudu
Outsourced Employee
+1 Other

Respected sir,
QUS; what are the eligibility of gratuity?Here i had been worked in cement factory from 1979 to feb 2015.First I had worked as contract Labor from 1979 to 1991 under one contractor. Onwords, our union leader changed contractor by the force of factory HR department.then, ESI, EPF are covered from my salary on oct 1991.further,our union went court through lawyer in 2007.Factory came to discussion with union leader and gave permanent orders to 21 union members in three stages[7 members per each year]with one condition i.e 2 years prohibition period and one year confirmation period afterwords they gave perment orders in 2010. After retirement industry paid gratuity from 2010 to feb 2015.whether i am eligible for gratuity from 1979 or 1991 or 2007 or 2010? please give explanation sir...shall i to Laborcourt on this issue sir?
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Dear Chennururayadu,
You are eligible to gratuity from the Cement Factory Management only from the date you were taken as the regular employee of the establishment. The 2 years spent on probation and the 1 year period of confirmation have also to be included in your qualifying period of service. If the calculation of the Company did not include the said 3 years, you can file a claim for the short fall amount before the Controlling Authority under the Payment of Gratuity Act,1972.
Since you joined the company in 1979 as a contract labour, you are eligible for gratuity from 1979.
If your contractor was registered under the CLRA Act and had complied with all statutory requirements (like ESI, PF) from your date of joining, you can claim from the contractor. If the contractor does not pay such statutory benefits, it becomes the liability of the principle employer i.e. your company to comply and pay such benefits.
Under the law of land, no matter who pays, the employees cannot be deprive of such benefits. However, the company has option to recover such amount paid by them for statutory benefits from the contractor.
Check my blog www.labourlawhub.com for more information.
Sir,

I very much glad to your reply regarding what are the eligibility of gratuity but I had also received reply from Riteshmaity, Labour Law Advocate based in Kolkata as

"Since you joined the company in 1979 as a contract labour, you are eligible for gratuity from 1979.

If your contractor was registered under the CLRA Act and had complied with all statutory requirements (like ESI, PF) from your date of joining, you can claim from the contractor. If the contractor does not pay such statutory benefits, it becomes the liability of the principle employer i.e. your company to comply and pay such benefits.

Under the law of land, no matter who pays, the employees cannot be deprive of such benefits. However, the company has option to recover such amount paid by them for statutory benefits from the contractor"

Sir, there is a difference in two replies. Hence, i request you please give me information in depth which is consider for my eligibility of gratuity. Hope early reply sir.

Thanking you Sir,
Dear Chennururayadu,

The view of the learned friend Riteshmaity would be correct provided your entire services rendered for the Cement Factory as a contract labour under different contractors as well as a regular workman were continuous and the gratuity amounts due from the contractors were not paid to you on the termination of the respective contracts. The facts narrated in your original post still give me the impression that since the contract was a sham or a ruse either by way of exploitative tendency or out of misinterpretation by the management of the cement factory the Union Leader chose the legal course which compelled the management to take all the 21 contract labour as regular employees in such a phased manner as described in the post. There is no mention in the post whether your absorption was as per any bilateral settlement or any judicial orders and whether all the dues from the contractors were settled. However, since the absorption was at the behest of the Union after initiating legal action, there is a likelihood of the presumption that the issue of gratuity would have been discussed and settled. As per one of the Madras High Court's decisions, the Principal Employer has the vicarious liability towards gratuity due to contract labour if the contractor fails to pay gratuity..
The advice given by learned member Shri Ritesh Maity is correct.
Someone needs to guide this querist on how to claim gratuity.Many companies get away with shortchanging their labour because labour is unaware of their rightful payments.
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