Hi, I am working in Advertising Agency since Dec. 2005 as consultant (TDS deduction is applicable), the rules are applicable for same as employees (Leaves and others). After some years management has sold the agency to other International National Agency. As per New Agency rules no one can work as consultant or freelancers. There is limit of employees so, they had taken me as Outsourcing employee of one of the service agency (my role is same) in Sept. 2016. Rules are same as regular employee like Tax deductions (PF and others). Due to no business the Agency is now closing/reducing the employees. They ask employees to give resignation letters. I am one of them. The notice is period is 1 month (March 2020).
Now my question is am i eligible for to get gratuity for my service from 2005 - 2020
Now my question is am i eligible for to get gratuity for my service from 2005 - 2020
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
If you have been working at par with other employees with respect to leave, hours of work, you can claim gratuity. But you have to establish the following.
1. The arrangement that you were working as a consultant was a measure to deny you rights of an employee under various Labour laws.
2. You were following all the HR policies with respect to leave, hours of work, reporting, dress code, engaging in consultancy work of other establishments etc.
3. The arrangement with the present establishment as a contract worker/ employee deployed by a contractor is just a camouflage and there does not exist a genuine contract but you have been reporting to the officers of the principal employer, you have been supervised by the principal employer and even the direction to resign came from the principal employer and not from the outsourced/ contractor.
If you can prove the above, you will get gratuity. For establishing master servant relationship, whatever you can gather as evidences, you may take. The mail messages, letters etc would benefit you a lot.
In most of the cases like this, the employer should have sent a mail asking all to submit resignation. If you were a contract worker, you should get it from your employer, ie, the contractor, and not from the principal employer for whom you work. Please see if that has happened to you also and revert.
From India, Kannur
41641. The arrangement that you were working as a consultant was a measure to deny you rights of an employee under various Labour laws.
2. You were following all the HR policies with respect to leave, hours of work, reporting, dress code, engaging in consultancy work of other establishments etc.
3. The arrangement with the present establishment as a contract worker/ employee deployed by a contractor is just a camouflage and there does not exist a genuine contract but you have been reporting to the officers of the principal employer, you have been supervised by the principal employer and even the direction to resign came from the principal employer and not from the outsourced/ contractor.
If you can prove the above, you will get gratuity. For establishing master servant relationship, whatever you can gather as evidences, you may take. The mail messages, letters etc would benefit you a lot.
In most of the cases like this, the employer should have sent a mail asking all to submit resignation. If you were a contract worker, you should get it from your employer, ie, the contractor, and not from the principal employer for whom you work. Please see if that has happened to you also and revert.
From India, Kannur
Dear Colleague,
As rightly guided by our Colleague, you are very well eligible to claim your gratuity under the given facts presented in your question. You worked for around 15 years from 2005 to 2020. You have completed the required service condition of 5 years and you will get gratuity for the completed years of service under the relevant provisions. The evidence documents like PF records will be helpful to substantiate your claim. Approach your employer positively for your claim.
You may send Form I given under the Gratuity Act specifying the required details which might be available with you and submit the claim with proof with you. Look for the best to come. God Bless.
From India, Chennai
As rightly guided by our Colleague, you are very well eligible to claim your gratuity under the given facts presented in your question. You worked for around 15 years from 2005 to 2020. You have completed the required service condition of 5 years and you will get gratuity for the completed years of service under the relevant provisions. The evidence documents like PF records will be helpful to substantiate your claim. Approach your employer positively for your claim.
You may send Form I given under the Gratuity Act specifying the required details which might be available with you and submit the claim with proof with you. Look for the best to come. God Bless.
From India, Chennai
Dear Prakash,
I agree with the observations of the above learned members.
Resignation, whether voluntary or at the informal persuasion of the employer, is a permissible cause of action for the claim of gratuity under the Payment of Gratuity Act 1972. When the entire service of the same employee prior to the termination of employment by means of his resignation comprises of different continuous spells under different employers by transfer of services at the behest of the concerned employers without any break in between, the employer under whom the employee served last would be liable to pay gratuity as successor-in-interest. But the problem is that the last employer may disown his liability towards the services rendered under others. Besides, there seems to be change of pattern of your employment as regular to out-sourced as per the dictates of every employer. Therefore, my presumption is that the last employer may raise certain issues either to disown or limit his statutory liability.
Under these complicated circumstances, my suggestion to you would be to stake a joint-claim for gratuity against all the employers under whom you served from 2005 to till the date of your resignation.
From India, Salem
I agree with the observations of the above learned members.
Resignation, whether voluntary or at the informal persuasion of the employer, is a permissible cause of action for the claim of gratuity under the Payment of Gratuity Act 1972. When the entire service of the same employee prior to the termination of employment by means of his resignation comprises of different continuous spells under different employers by transfer of services at the behest of the concerned employers without any break in between, the employer under whom the employee served last would be liable to pay gratuity as successor-in-interest. But the problem is that the last employer may disown his liability towards the services rendered under others. Besides, there seems to be change of pattern of your employment as regular to out-sourced as per the dictates of every employer. Therefore, my presumption is that the last employer may raise certain issues either to disown or limit his statutory liability.
Under these complicated circumstances, my suggestion to you would be to stake a joint-claim for gratuity against all the employers under whom you served from 2005 to till the date of your resignation.
From India, Salem
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FORM-F-NOMINATI ON OF GRATUITY.pdf
Gratuity Form I.doc