Gratuity - they had taken me as Outsourcing employee of one of the service agency

Hi, I have been working at an Advertising Agency since December 2005 as a consultant (TDS deduction is applicable). The rules applicable for consultants are the same as those for employees (leaves and others). After several years, the management sold the agency to another international agency. Under the new agency's rules, no one can work as a consultant or freelancer. There is a limit on the number of employees, so they brought me on as an outsourcing employee of a service agency (my role remains the same) in September 2016. The rules are similar to those for regular employees, including tax deductions such as PF and others.

Due to a lack of business, the agency is now closing or reducing its workforce. They have requested that employees submit resignation letters, and I am one of them. The notice period is one month (March 2020).

My question is, am I eligible to receive gratuity for my service from 2005 to 2020?

If you have been working at par with other employees with respect to leave and 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 labor 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 the master-servant relationship, gather whatever evidence you can, such as mail messages, letters, etc., as they would benefit you a lot.

In most cases like this, the employer should have sent an email asking all to submit resignations. If you were a contract worker, you should get it from your employer, i.e., the contractor, and not from the principal employer for whom you work. Please see if that has happened to you also and revert.

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 that might be available with you and submit the claim with proof. Look for the best to come. God bless.

Dear Prakash,

I agree with the observations of the above-mentioned 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 different continuous spells under different employers by the 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 a successor-in-interest. However, the problem is that the last employer may disown his liability towards the services rendered under others. Besides, there seems to be a change in the pattern of your employment from regular to outsourced 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 until the date of your resignation.