anupama-h
Dear Team, I'm here to get a clarification regarding my eligibility for a gratuity. I'm an Assistant Professor of English who worked for 4.8 years in the same institution. However, the employer is refusing to settle the gratuity by creating an intentional artificial gap in my service. i.e. I was on a contract period from 22/07/2019 to 21/01/2020 bearing the employee ID no. AI0001712 and then they put me on a consultancy period to break my service - 22/01/2020 to 29/02/2020 - I worked 9 am to 4.45 pm and engaged all the classes and all the allotted work as usual and finally they gave me a new employee ID (AI001859), PF a/c number and ERP credentials on 02/03/2020. Now, I have been relieved from the institution on 30/03/2024 with the same employee ID (AI001859).

The HR is convincing me that I'm not eligible for gratuity as I was not in continous service as per gratuity act and denied to process for the gratuity amount by showing this gap in my service. Also, he has given me two experience letters instead of one. I request your suggestions and solutions. It will be of great help to me.

From India, Bengaluru
Madhu.T.K
4193

The break is artificial only. The period of service as a consultant should be treated as service period only. But they can deny gratuity on the ground that your service does not account for five years. Again, interpretation of section 2A of Payment of Gratuity Act which supports a service of 240 days in the fifth year shall help you to get gratuity provided the fifth year account for 240 days or 190 days (if your College works for 5 days only) including paid holidays and leave days. You have to ensure that the year 2020 in which you had had a break of around 38 days will not make your total days in that 12 months less than 240/190 days, as the case may be.

You can approach the Controlling Authority for intervention. Before that please send an official request in form I (attached)

From India, Kannur
Attached Files (Download Requires Membership)
File Type: doc Gratuity Form I.doc (29.0 KB, 0 views)

anupama-h
Thank you very much for the suggestion!! Should my FTE period be considered along with the consultation period?
From India, Bengaluru
Madhu.T.K
4193

Fixed Term Employment is part of your service. The 'consultation period' is just a technical term used whereas you were not actually engaged as a consultant. You have to establish that during that 'consultancy' period you were following all the HR protocols with regard to office timing, holidays, taking approvals for leave, attending training, reporting etc. Then your position will automatically become employee and the consultancy will become a designation only. Please remember that it is not a "consultant" but a Teacher (lecturer, Tuitor, Professor by designation) who will teach students. A Consultant will not evaluate the answer sheets of the students. You should mention this also in your complaint.
From India, Kannur
anupama-h
Alright sir! Thank you for your valuable inputs and quick response..
From India, Bengaluru
anupama-h
Dear Sir, kindly check these 1st offer letter, TDS document, and 2nd offer Lett. TDS is the only proof that I have served the same institute. I have mailed the MD to resolve the issue on 18/4/24 but no response. Shall I send Form L and lawyer notice to the college? Under Gratuity Act of 1972, section 9 mentions ' False statement and false representation to avoid payment of Gratuity is a punishable offence' can I mention section 9 and 2A in the legal notice? I need your suggestion... And as I've mentioned earlier my last working day was 30/3/24, so is it mandatory that my Form L and legal notice reach them within 30days after relieving?
From India, Bengaluru
Attached Files (Download Requires Membership)
File Type: pdf Offer Letter 1.pdf (4.75 MB, 0 views)
File Type: pdf DOC-20240423-WA0010..pdf (55.2 KB, 0 views)
File Type: pdf Offer letter 2.pdf (3.28 MB, 0 views)

anupama-h
Also, the head HR replied rudely whenever I mentioned about the Gratuity law... Should I include that in complaint too?
From India, Bengaluru
Madhu.T.K
4193

You may just send the form I to the HR. Once they reject the claim, you can raise the matter before the Controlling Authority under Payment of Gratuity Act, ie, the Asst Labour Commissioner. The employer is suppose to disburse the gratuity within 30 days of your relieving. We will wait till then, and after that we will send compliant in form N in which we will narrate the facts one by one. In that you can mention that the HR uses to harass you by using rude words etc, and that could be taken as one of the the reasons for delay in submitting the complaint.
From India, Kannur
Madhu.T.K
4193

The TDS made is also wrong because it is deducted as per 194J as against 192 of the IT Act. You were paid salary. Both the appointment letters clearly establish that you were offered an 'employment', and not 'consultancy'. It also says that your employment is governed by the HR policies. FTE only means that she is appointed for a fixed term, and that is why it is called fixed term employment (FTE), and the TDS shows that you are paid professional charges. The percentage is flat 10%. You have been supplied with form 16A as against form 16. It is true that in respect of highly paid professional it will be okay because they can take expenses like salary given to staff, depreciation etc, but a person who has no such arrangements, like office, staff to take care of the office, marketing etc, it is not fair.

When they reject the gratuity claim, this will be quoted as a reason, but you should defend by asking is there any proof to show that I was appointed as a Consultant whereas the appointment order says that I was appointed as an Asst. Professor.

From India, Kannur
anupama-h
Good evening Sir,

I have not received my gratuity yet. I had sent them Form I along with a request letter to process delayed gratuity and it was delivered yesterday but they didn't even reply. I think they don't want to give the gratuity. So now, should I send the legal notice or directly complain about it to the Controlling Authority sir?

From India, Bengaluru
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