Yasmin,
The matter is a little complicated because if you go for legal options, then the onus lies with the employee to prove that he worked as a regular employee. As you guys have no document (employment contract) to prove that, the task becomes more tough.
Suppose on paper (for audit purposes) the employer has shown your husband as a consultant/professional (retainership), then deduction of TDS (10%) is a must, and the employer is bound to give Form 16A at the end of the financial year. If there is no deduction of TDS, then again, it's an offense on the part of the employer.
It seems the employer is wrong on all fronts. Ask your husband to write a letter (with registered post) to the owner of the company with details of the statutory obligations of the employers and his eligibility for the same. Wait for the reply for around 15 days and then consult with us.
Regards
From India, Pune
Acknowledge(0)
Amend(0)
177The matter is a little complicated because if you go for legal options, then the onus lies with the employee to prove that he worked as a regular employee. As you guys have no document (employment contract) to prove that, the task becomes more tough.
Suppose on paper (for audit purposes) the employer has shown your husband as a consultant/professional (retainership), then deduction of TDS (10%) is a must, and the employer is bound to give Form 16A at the end of the financial year. If there is no deduction of TDS, then again, it's an offense on the part of the employer.
It seems the employer is wrong on all fronts. Ask your husband to write a letter (with registered post) to the owner of the company with details of the statutory obligations of the employers and his eligibility for the same. Wait for the reply for around 15 days and then consult with us.
Regards
From India, Pune
Acknowledge(0)Amend(0)
Dear Mr. Kamal,
Thank you for the suggestion. I will proceed as per your recommendations first and then consider Mr. Madhu's suggestions. By this Sunday, I will gather all the necessary documents, including the company documents and employment-related documents (provided I am able to obtain the ID card). I will return on Monday with the scanned copies attached.
I have some documents that confirm his employment, and I will have the scanned copies ready by Monday for you.
Thank you.
From India, Mumbai
Acknowledge(0)Amend(0)
Thank you for the suggestion. I will proceed as per your recommendations first and then consider Mr. Madhu's suggestions. By this Sunday, I will gather all the necessary documents, including the company documents and employment-related documents (provided I am able to obtain the ID card). I will return on Monday with the scanned copies attached.
I have some documents that confirm his employment, and I will have the scanned copies ready by Monday for you.
Thank you.
From India, Mumbai
Acknowledge(0)Amend(0)
I want to clarify one more thing. Will the experience letter stating the period of work as mentioned and signed by the authority in the Mumbai office work as proof of employment? Also, the proof for the last drawn salary is the bank statement of the last two years.
From India, Mumbai
Acknowledge(0)Amend(0)
From India, Mumbai
Acknowledge(0)Amend(0)
Dear Friends,
It has been indicated to me by a consultant that if an employer issues a salary compensation letter without providing any details of gratuity, then the employer is not obligated to pay any gratuity to an employee who leaves after completing 5 years.
Please confirm if this information is accurate.
Thank you.
From India, Mumbai
Acknowledge(0)Amend(0)
It has been indicated to me by a consultant that if an employer issues a salary compensation letter without providing any details of gratuity, then the employer is not obligated to pay any gratuity to an employee who leaves after completing 5 years.
Please confirm if this information is accurate.
Thank you.
From India, Mumbai
Acknowledge(0)Amend(0)
Yasmin,
An experience letter can be a supportive document for your claim, but employment conditions are not typically mentioned in the experience letter. The experience letter will certainly prove that the concerned person has worked with the said employer.
From India, Pune
Acknowledge(0)Amend(0)
An experience letter can be a supportive document for your claim, but employment conditions are not typically mentioned in the experience letter. The experience letter will certainly prove that the concerned person has worked with the said employer.
From India, Pune
Acknowledge(0)Amend(0)
Dear Smita,
Mentioning or not mentioning gratuity details in the compensation letter does not curb your claim to gratuity if you are working as a regular employee. It's a statutory obligation of the employer. Recently, the definition of employees has been amended, and the new definition of an employee is very wide, covering almost all types of employment with the employer.
The amended definition of an employee is as follows: "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop, or other establishment, to which this Act applies. However, it does not include any person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for the payment of gratuity.
Thank you.
From India, Pune
Acknowledge(0)Amend(0)
Mentioning or not mentioning gratuity details in the compensation letter does not curb your claim to gratuity if you are working as a regular employee. It's a statutory obligation of the employer. Recently, the definition of employees has been amended, and the new definition of an employee is very wide, covering almost all types of employment with the employer.
The amended definition of an employee is as follows: "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop, or other establishment, to which this Act applies. However, it does not include any person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for the payment of gratuity.
Thank you.
From India, Pune
Acknowledge(0)Amend(0)
Hi everyone.
I'm not sure how I got sucked into this website, but I really enjoy reading your HR issues. I am from the United States - born and raised here. I would like to tell you a little bit about how things are done here in regards to this discussion since the company is a US firm.
In the USA, we are not bound by law to provide nor receive any type of compensation when we leave a company no matter how large or small. This might be the mindset of the company in the discussion - they might not understand your country's laws, and if this is the case, this US company would feel insulted by the employee asking for gratuity. Sometimes the US company will provide "severance" pay, but they are not required to. It's just something nice they do so they can get you out of there without issues. The main reason to give a US employee severance pay is so the former employee will sign a document stating that they will not sue the company at a later date for any reason. After they sign the letter, they get a severance check. Again, not a government mandate. I believe you guys are really lucky that you have that law in place - you should feel fortunate.
Regards,
Tina
From United States, Creedmoor
Acknowledge(0)Amend(0)
I'm not sure how I got sucked into this website, but I really enjoy reading your HR issues. I am from the United States - born and raised here. I would like to tell you a little bit about how things are done here in regards to this discussion since the company is a US firm.
In the USA, we are not bound by law to provide nor receive any type of compensation when we leave a company no matter how large or small. This might be the mindset of the company in the discussion - they might not understand your country's laws, and if this is the case, this US company would feel insulted by the employee asking for gratuity. Sometimes the US company will provide "severance" pay, but they are not required to. It's just something nice they do so they can get you out of there without issues. The main reason to give a US employee severance pay is so the former employee will sign a document stating that they will not sue the company at a later date for any reason. After they sign the letter, they get a severance check. Again, not a government mandate. I believe you guys are really lucky that you have that law in place - you should feel fortunate.
Regards,
Tina
From United States, Creedmoor
Acknowledge(0)Amend(0)
To prove the employer-employee relationship, there is no need for an appointment letter. A signature in the muster roll or wage register, or even a witness to produce before the authority, is sufficient. Since it is the obligation of the employer, and not the employee, to maintain wage registers, muster rolls, and other relevant registers and issue wage slips as per the Payment of Wages Act, Minimum Wages Act, Payment of Gratuity Act, etc., the question of the employee proving the employer-employee relationship does not arise. Similarly, unless otherwise contracted, all persons working for the establishment are considered only as employees, and thus the question of giving him a designation of "consultant" does not arise. In the absence of such an agreement, he is considered an employee only.
The roles he has been performing have no relevance in gratuity payment. What matters are the last salary drawn and the length of service that are taken into account. Therefore, you can proceed with claiming gratuity from your end.
Regards,
Madhu.T.K
From India, Kannur
Acknowledge(0)Amend(0)
The roles he has been performing have no relevance in gratuity payment. What matters are the last salary drawn and the length of service that are taken into account. Therefore, you can proceed with claiming gratuity from your end.
Regards,
Madhu.T.K
From India, Kannur
Acknowledge(0)Amend(0)
Dear Tina,
Welcome to CiteHR.com!
Thanks for sharing the HR practices in US companies. It also helps in understanding the stance adopted by the company in question. However, I must clarify for your information (and others') that irrespective of the original incorporation or "nationality" of a company, its operations in another country are regulated by the Company Laws prevalent in the host country. This being the situation, the companies need to amend their "practices" accordingly while operating in other countries.
Do keep visiting CiteHR.com - one of the largest live networks of HR professionals - and share your knowledge, learnings, and views.
Warm regards.
From India, Delhi
Acknowledge(0)Amend(0)
Welcome to CiteHR.com!
Thanks for sharing the HR practices in US companies. It also helps in understanding the stance adopted by the company in question. However, I must clarify for your information (and others') that irrespective of the original incorporation or "nationality" of a company, its operations in another country are regulated by the Company Laws prevalent in the host country. This being the situation, the companies need to amend their "practices" accordingly while operating in other countries.
Do keep visiting CiteHR.com - one of the largest live networks of HR professionals - and share your knowledge, learnings, and views.
Warm regards.
From India, Delhi
Acknowledge(0)Amend(0)
I have a similar problem.
I had worked for 9 years and 6 months in an autonomous body under the Ministry of Industries, Government of India. They did not pay me gratuity upon my resignation, stating that it is not applicable in Government service if an employee resigns. However, this organization will pay gratuity after 10 years of service.
I wrote to the Assistant Labour Commissioner (Central), Ahmedabad (where I was last posted) but have not received any reply.
Kindly let me know what can be done.
From India, Mumbai
Acknowledge(0)Amend(0)
I had worked for 9 years and 6 months in an autonomous body under the Ministry of Industries, Government of India. They did not pay me gratuity upon my resignation, stating that it is not applicable in Government service if an employee resigns. However, this organization will pay gratuity after 10 years of service.
I wrote to the Assistant Labour Commissioner (Central), Ahmedabad (where I was last posted) but have not received any reply.
Kindly let me know what can be done.
From India, Mumbai
Acknowledge(0)Amend(0)Looking for something specific? - Join & Be Part Of Our Community and get connected with the right people who can help. Our AI-powered platform provides real-time fact-checking, peer-reviewed insights, and a vast historical knowledge base to support your search.