Labour Law & Hr Consultant
Principal Hr Consultant
Srinath Sai Ram
PRABHAT RANJAN MOHANTY
Hr & Ir
You have mentioned that you worked for 9 years in construction company. Generally construction companies recruits workmen on contractual or Project basis. You haven't mentioned whether you were workman or regular staff. Whether you have received any final settlement projectwise. If yes, you cannot claim continuity in employment.
Please elaborate your post properly i.e. your designation, DOJ, DOL, whether you have any appointment letter with you, was there any long gap in your services due to project completion?
From India, Thane
1. Gratuity Act does not speak about the status of an employee, the focus is on continuity of service hence irrespective of the fact whether FnF is done or not, if the company is the same and the service was without break, the employee is entitled to gratuity.
2. If the employer has shifted or has been shifting the name/s of the employee/s then it can be challenged and on the principle of lifting of the veil things will come to the fore with the mal intentions of the employer.
3. Please contact labour Commissioner's office and lodge your complaint.
From India, Thane
Satheeshkorada has nowhere mentioned whether he was working on contractual basis and or Project Basis. He has only mentioned he worked for nine years. We do not know whether there was any break in continuity service.
Pls note that if he was employed on purely contractual basis for certain period and was given full & final settlement after completion of that project, he can not claim for continuity in service. Besides also not that he was working in civil construction company, where project last for maximum 2 to 3 years.
I am very much aware that gratuity is not payable based on designations, I just wanted to confirm whether he was working in office or at project site. Because generally in office they appoint staff on a regular basis, whereas at project sites it is purely on contractual basis till the completion of that project. Satheeshkorada has not provided his full details of employment therefore it is not proper to advise him to approach Labour department and or to inform him that he is eligible for gratuity without knowing the fact whether he was in employment without any break in service.
From India, Thane
Sorry, I am unable to accept your presumption that project based service, if any, rendered by the questioner on FTC would extinguish his claim for gratuity in view of the F&F done at the close of each project. I don't think that actuarial basis gratuity would be added to the cost of the project if its gestation period is certainly less than 5 years so as to get reflected in the F&F amounts. In fact, here, the employer remains the same Construction Company through out the continuous tenure of 9 years despite the different projects,if any to which the employee could have been deputed on their successive completion during the course of 9 years. In other words, he was in the service of the same employer continuously at different projects or locations. Your view point may be based on the actual practice being generally adopted in the construction industry in respect of lower level jobs like site watchman. The veracity of such a practice remains unquestioned as long as there are no complaints. But, on the face of a claim for gratuity, what is important is whether the contract of service between the employer/ the Construction Company and the employee/claimant remained in tact amidst the consecutive changes in the projects after their successive completion.
Coming to the claim for gratuity, first the questioner has to send his claim for gratuity in the prescribed form to the Construction Company. If there is no reply or rejection of the claim, he has to file a claim petition with the Controlling Authority under the P.G Act,1972 for the area where he worked last together with a delay condonation application. The C.A would conduct an enquiry and award gratuity with interest, if the claim is maintainable.
Better, he should engage the services of an Advocate right from the beginning.
From India, Salem
If you read my reply and suggestions, this sentence would have been written differently as I have specifically adviced
"""If they do not reply give your written complaint to Labour Commissioner of the area where you worked with full details and supporting evidence of your employment and period of continuous work.""
Stress is on "period of continuous work",since he is construction industry with project work.
But everyone in the industry may not be on project to project basis of work.
From India, Pune