monkey-singh
Ok, so I joined this company in 2012. So during the interview and signing of papers, I was told that I was being hired on contract and the only difference between me and any other employee is that I would not have a PF and medical insurance deduction. We only had a deduction of 10% TDS. We were paid a fixed "fee" every month.
After about 6-7 years of working in the company, after GST was introduced, we were asked to submit monthly invoices for tax audit purposes.
Now, all the rules and regulations, all policies of the company were applicable to me. I was recruited by the head of department, asked to report to her and assigned tasks of equal nature with anyone else in the team. I was quite young back then and didn't realise that these wordings were simply abused and the recruits tactfully made to sign them, with the clandestine goal of circumventing provisions of the labour laws.
My work in the organisation is as per the monthly roster prepared by the HOD for both "on rolls" staff as well as the few "on contract" staff. Often by default in a year or two the "on contract" staff simply get put on payrolls. I was even asked if I wanted to but I said that I preferred to get that formality done a year or so later because the salary I drew back then was quite less. Deductions such as PF, Diwali Bonus among others would reduce my monthly take home to significantly lower amounts.
To make it clear - I was in practice an employee with no rights to do a "come and go as I like" sort of job or do just the amount of work I chose to and demand pay only for that. Not doing a chore, just any chore or task asked of me would have led to disciplinary action against me. Therefore in practice the word "independent" was null and void.
Until recently the company did not have well framed policies and documents that defined various entitlements and duties of employees. Only recently with a revamp in the human resources department have these documents uploaded on the intranet site. I have been using the magnetised ID card to swipe my attendance on a daily basis. I am entitled to annual pay hikes and twice I have been promoted as well. Only thing is that the payslip only shows "consultant fees, number of days worked, LWP days" and no other allowances. There is only a TDS deduction of 10% of the "fee".
As of now, the exit interview form says that only "on roll" employees are entitled to gratuity benefits and I would only be given the "fee" after deduction of the number of days I am unable to serve notice. - Here we go. I am not even allowed to just exit at my own free will and will have to pay for the notice period not served.
About 3-4 years ago, they got all the "contract" employees to sign a letter saying they they are voluntarily forfeiting their right to PF benefits.
Now going by what is said in many of the threads, whatsoever the wordings of agreement may be and slyly calling the wages as "fee" and mentioning the the appointment letter that "you will always be an independent contractor and will not approach any labour court".
Now given that I have "signed" this tacitly worded letter, I see some of the forum commentators seem to be on the side of the employer and it is causing me paranoia if the labour commissioner may have a divided opinion on this. My company is not any ordinary one, they have significant influence at top places. Makes me wonder whether this will easily be an open and shut case or will legal recourses have to be availed.

From India
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Madhu.T.K
Industrial Relations And Labour Laws
Nanu1953
Ceo-usd Hr Solutions
KK!HR
Management Consultancy

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Madhu.T.K
3791

Whatever be the stand of the employer, the consultant who is issued a payslip with total number of days 'worked' loss of pay etc is an employee only. If the contract says about adherence to the company policies with regard to timing, reporting, etc, the contract is a contract of employment and the amount of remuneration is salary only. When you leave after 5 years, obviously, you should be paid gratuity also. Please go through a case which is attached for your reference. This case is about a few consultant doctors whose remuneration were booked as Professional charges and the IT department demanded that the remuneration should be treated at par with salary since they are employees only.
From India, Kannur

Attached Files (Download Requires Membership)
File Type: pdf Salary vs Professional Income-IT matters- Wockhardt Hospitaldocx.PDF (260.5 KB, 22 views)

monkey-singh
Thank you so much Madhu sir. But if I take a copy of this judgement to HR, the company is all the more likely to fight tooth and nail because acknowledging me as an employee will amount to paying up significant amounts of retrospective taxes to the government under section 192. Or I am not sure if that even applies because very few of the employees marked as "independent contractors" are even drawing much in comparison to Wockhardt.
From India
Madhu.T.K
3791

If the the Company HR is driving to a wrong direction, somebody should alert him that he is going in a wrong direction, right? Either the passengers in the bus should alert him or you should inform somebody outside who can stop the bus and ask the driver why are you driving to wrong direction! That means you can alert the labour department who will interfere with the management's wrong steps. If you feel that you will be booked by the management, you can use the official web portals of EPFO and labour departments.
From India, Kannur
KK!HR
1372

From what you have narrated, it is evident that the organisation has resorted to some paper arrangement to cover up the actual reality. This will stand the test of judicial scrutiny, once the 'veil is lifted' and the stark reality will appear clear and vivid. There appears to be no escape from this, the only question is when this happen and who is going to bell the cat.
As regards your queries, this is to clarify that:
1. Even if there is a tacit contract between the company and its so-called contractors, it is illegal and no contract can be valid if it is violative of law.
2. As regards the competence of Labour Commissioners (generally a senior IAS Officer) to decide on the questions of law, normally these matters are dealt by the Assistant or Deputy Labour Commissioner who is an experienced person from the Labour Department and so there is nothing to worry about their knowledge. Even in the worst case if the Labour Commissioner takes it upon him to deal with this, normally a qualified subordinate official will be helping and assisting him/her. The question of being an 'employee ' or not is a complicated question of law and facts so it will not be dealt in a casual manner.

From India, Mumbai
monkey-singh
@Madhu sir, yes the company has a history of taking unfair action on employees over petty personal grudges. They will pick up some trivial human error which is very commonly done by just about anyone and blow it out of proportion to fire the employee and make them immediately leave the premises and disable their email account so that they can't gather evidence that there have been thousands of occasions in the past when such errors were just brushed away as part of work. Given that I am on notice right now, they are highly likely to just pick some random nonsense to terminate me and then claim that I am not eligible for gratuity because I was fired on disciplinary grounds. Yes, they can go that far.
@KK!HR, much appreciated. The second question was of priority because I really needed to know if there was a possibility of the company pulling some strings to get the labour office go in their favour. As stated before, the company has influence at top levels.

From India
Madhu.T.K
3791

Soon after your relieving you should send notice to the company demanding your gratuity. If not paid, you can approach the Labour Office. Once it is materialised, the others can also demand it and obviously, the company will be forced to change the status of the employees.
From India, Kannur
nanu1953
288

What Madhu T K has been mentioned in his last post is absolutely right. Collect and keep all necessary documents in your custody and first approach for Gratuity Payment after leaving the organization. Once it is settled, move for the other issues. Do not show any court case reference at this moment to your employer.

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

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