Umakanthan53
Labour Law & Hr Consultant
Bijay_majumdar
Freelancer
Raj_123
Software Engineer
+4 Others

Thread Started by #Raj_123

Hi Everyone,
I worked in company A from July 2010 and on March 2012 they registered a new company named B and all the employees are got shifted to company B. They give us new offer letter for company B and relieving letter for company A. Now I have resigned from company B (in Nov 2017) and my total tenure in company B was 5.8 years.
So my question is that if management and place is the same then my 20 months tenure in company A, can be considered while calculating the gratuity or my tenure will remains 5.8 years.
Thanks
13th December 2017 From India, Gurgaon
ideally you should receive gratuity. But again need to check your separation system from company A to company B.
13th December 2017 From India, Pune
Circumstances would have to be examined.
Prima facie from what you have described gratuity is payable by the company.
Employer cannot get away from liability by closing one company and restarting business in another name and re employing same people.
13th December 2017 From India, Pune
I beg to differ from the views of the two members answered just before me though their views have inherent ethical value. But, legally speaking both the companies are different entities despite the fact of continuity of ownership in any form. As per the post, all the employees including the poster resigned from Company-A in response to the offer of Company-B. Therefore it can not be treated as a transfer of service from one company to another with continuity of service. If at all they have any claim for gratuity against Company-A, it actually depends on the length of continuous service rendered there on the date of their resignation. Regarding the query of the poster who stands resigned as of now from Company-B also, he can stake his claim for gratuity only for the period of his service actually rendered in Company-B and can not club the service rendered in Company-A.
13th December 2017 From India, Salem
Technically you cannot combine the service in company 'A" with that of company'B' for reasons,explained by Mr.Umakanthan. However ethically, the company can consider it and compensate for the past service as the management is same in the form of 'ex-gratia'.However it is company's discretion.
B.Saikumar
HR & Labour Relations Advisor
Navi Mumbai
13th December 2017 From India, Mumbai
""all the employees are got shifted to company B. They give us new offer letter for company B and relieving letter for company A""
Uma sir,
The employee never resigned from Company A.
The employees were shifted to Company B.It looks from the bare facts given that the entire closing of A and opening of B with same business and same staff is a way of evading Gratuity among other unknown reasons.
Facts are inadequate to decide but my opinion i on the assumption stated above.
14th December 2017 From India, Pune
Yes, Mr.Rao, I do certainly agree that from the very bare facts casually presented by the poster, you perception would also be correct under the provisions of S.25-FF of the Industrial Disputes Act,1947 pertaining to compensation of workmen in case of transfer of undertakings. At times, howsoever educated, our Indian employees in order to keep the going good, are gullible to the manipulative tendencies of their employers. That's why most of us insist that the posters should always furnish complete details of the problem for which they seek solution. Now, it is upto the questioner to respond.
14th December 2017 From India, Salem
""At times, howsoever educated, our Indian employees in order to keep the going good, are gullible to the manipulative tendencies of their employers.""
The unemployment situation is so bad that employees have to lump it or find alternatives.Employers find it easier to get away and twist things.
Most posters do not furnish full information and also confuse you with multiple contradictory questions/posts.
But still answering these posts to best of ability in fair manner, is learning for all concerned.
14th December 2017 From India, Pune
Receiving full & final settlement means severing of employer-employee relationship. Gratuity is paid on continuous service of 5 or more years, which you don't have.
14th December 2017 From India, Mumbai
If an employee has continuous service in two different companies under the same management (transfered from company A to B), will he eligible for gratuity for the continuous service?
Pls give your reply
16th December 2017 From India, Thiruvananthapuram
Service Period of Company A may not be considered for Gratuity unless there is documentary evidence to prove that the period served in Company A will be considered for gratuity for all those who have been reappointed in the new company B from Company A.
It thus means that Proper procedure of transfer and compensation has to be documented in employee personal records and company records too.
18th December 2017 From India, Vadodara
Section 25FF in The Industrial Disputes Act, 1947
25FF. 4 Compensation to workmen in case of transfer of undertakings.- Where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched: Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if--
(a) the service of the workman has not been interrupted by such transfer;
(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and
(c) the new employer is, under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer.
Querist needs to give further details to give an answer.
If management is doing such transfers to avoid gravity or other dues then law will be favourable to employee.
18th December 2017 From India, Pune
Yes Sir, The section 25FF is applicable provided that such notices should have been issued.That is what I meant by writing that the the relevant procedure should have been followed and documented to ensure the welfare of the employee in question.
Thanks for sharing the in detail frame of this issue Sir
18th December 2017 From India, Vadodara
Hi All,
Thanks for your valuable replies. Its really very helpful for me as well other employees and readers. I appreciate your quick responses.
18th December 2017 From India, Gurgaon
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