Dear All,
Thank you for the information. But what I last learnt about gratuity was that gratuity was a payment through which an employer shows his grtitude towards his employee for working so long with the company and hence although the law exists, the employer may not be bound by it. Infact this was thought to us by one of the law practitioners. . So in case of Yasmin, how will this hold effect.
Please do let me know.
Thanks & Regards
Anuja
From India, Mumbai
2Thank you for the information. But what I last learnt about gratuity was that gratuity was a payment through which an employer shows his grtitude towards his employee for working so long with the company and hence although the law exists, the employer may not be bound by it. Infact this was thought to us by one of the law practitioners. . So in case of Yasmin, how will this hold effect.
Please do let me know.
Thanks & Regards
Anuja
From India, Mumbai
Dear Yasmin,
It is mandatory for employer to pay gratuity whether company is in loss or profit. You need not to worry. Just show only one thing which prove that your husband was permanent employee. You can show it by providing offer letter , Salary slip , Promotion letter,any letter which show experience, or through employees of that company. Only just make a complaint in written and send it to DLC, If DLC not take any action then send it to LABOUR COMMISSIONER. He/She will do your help . You have to be bold for teach lesson to employer.
From India, Delhi
It is mandatory for employer to pay gratuity whether company is in loss or profit. You need not to worry. Just show only one thing which prove that your husband was permanent employee. You can show it by providing offer letter , Salary slip , Promotion letter,any letter which show experience, or through employees of that company. Only just make a complaint in written and send it to DLC, If DLC not take any action then send it to LABOUR COMMISSIONER. He/She will do your help . You have to be bold for teach lesson to employer.
From India, Delhi
Dear Anuja
Are you an HR professional ?? Or working in some other functional areas ??
Kindly check up with the Labour laws and statutes; before giving such "expert" advice, as it amounts to mis-guiding the person.
I wonder what "your law practitioner" will answer, if asked whether bonus is payable if the company makes a loss ??
For your kind information; gratuity was initially given as a 'reward" or 'gratuitous" payment for long dedicated service. Similarily, "bonus" in Latin means "something extra" and was given as an extra payment during festivals and when company made profits.
Since then lots of water has flown down the river Ganges; and since 1972 and 1965 respectively; the payment of gratuity and bonus is no longer voluntary. but made compulsory.
So, its not as you say "although the law exists, the employer may not be bound by it."; but it has to be paid compulsorily, if an employee is eligible for it.
Also, please comply with labour laws; if you are an HR person, you must know that COMPLIANCE is an important function of HRM. It would also be better for your company, if you dispense with the services of your "labour practitioner" and find someone more competent.
Warm regards.
Warm regards.
.
From India, Delhi
Are you an HR professional ?? Or working in some other functional areas ??
Kindly check up with the Labour laws and statutes; before giving such "expert" advice, as it amounts to mis-guiding the person.
I wonder what "your law practitioner" will answer, if asked whether bonus is payable if the company makes a loss ??
For your kind information; gratuity was initially given as a 'reward" or 'gratuitous" payment for long dedicated service. Similarily, "bonus" in Latin means "something extra" and was given as an extra payment during festivals and when company made profits.
Since then lots of water has flown down the river Ganges; and since 1972 and 1965 respectively; the payment of gratuity and bonus is no longer voluntary. but made compulsory.
So, its not as you say "although the law exists, the employer may not be bound by it."; but it has to be paid compulsorily, if an employee is eligible for it.
Also, please comply with labour laws; if you are an HR person, you must know that COMPLIANCE is an important function of HRM. It would also be better for your company, if you dispense with the services of your "labour practitioner" and find someone more competent.
Warm regards.
Warm regards.
.
From India, Delhi
Dear All,
Law is a convinence store which can be used on need based. Gratuity is a legal act which the company has to follow and can be prosecuted if violated.
So companies which does not follow the basic law need to be warned and informed to fullfil thier obligations.
Regards,
Shridhar
From India, Mumbai
Law is a convinence store which can be used on need based. Gratuity is a legal act which the company has to follow and can be prosecuted if violated.
So companies which does not follow the basic law need to be warned and informed to fullfil thier obligations.
Regards,
Shridhar
From India, Mumbai
Dear Mr. Madhu.T.K,
My input was case specific (Yaasmin's husband) and your input was a general one. My input was keeping in view the fact if the employer is doing mischief to such an extent that for 5-6 years they were paying salary in case without fulfilling any statutory obligations , such employer must be doing his ground work on paper in his favor so that he may not be in trouble in future.
Secondly, in this particular case the employee was not conscious enough to ask the employer regarding his eligibility for getting employment contract, salary slips, pf/esic deductions etc. The employee was accepting salary in cash for 5-6 years without having any employment proof for himself.
Whatever you have mentioned regarding employer's responsibility to maintain wage register, attendance register, salary slips etc is applicable (strictly) in case of a regular employees and not in case of consultants. Consultants having field jobs may or may not require to sign the attendance register, may or may not get salary slips.
Your input “a witness to produce before the authority is sufficient to prove employer employee relationship” may be correct in a particular but not in all cases. Producing a witness is not enough to prove any case in the court of law.
In Coimbatore Cement Worker’s Union V. Managemenr of ACC Ltd. & Ors. LLN (3) 2010 P. 505, the Madras high court has ruled that documentary evidence of an employee to prove his status as a workman lies with the employee and just a company i-card is not enough to prove the employer-employee relationship (workman).
Even apex court has few ruling where the court has doubted the clean hands of the employee and questioned why the employee was silent for so many years.
Your input “The roles he has been performing has no relevance in gratuity payment. It is the last salary drawn and the length of service that are taken into account and therefore, you can certainly proceed with claiming of gratuity from your end” is correct but the type of employment has all relevance in deciding the gratuity payment.
I would appreciate your further input.
Regards,
From India, Pune
My input was case specific (Yaasmin's husband) and your input was a general one. My input was keeping in view the fact if the employer is doing mischief to such an extent that for 5-6 years they were paying salary in case without fulfilling any statutory obligations , such employer must be doing his ground work on paper in his favor so that he may not be in trouble in future.
Secondly, in this particular case the employee was not conscious enough to ask the employer regarding his eligibility for getting employment contract, salary slips, pf/esic deductions etc. The employee was accepting salary in cash for 5-6 years without having any employment proof for himself.
Whatever you have mentioned regarding employer's responsibility to maintain wage register, attendance register, salary slips etc is applicable (strictly) in case of a regular employees and not in case of consultants. Consultants having field jobs may or may not require to sign the attendance register, may or may not get salary slips.
Your input “a witness to produce before the authority is sufficient to prove employer employee relationship” may be correct in a particular but not in all cases. Producing a witness is not enough to prove any case in the court of law.
In Coimbatore Cement Worker’s Union V. Managemenr of ACC Ltd. & Ors. LLN (3) 2010 P. 505, the Madras high court has ruled that documentary evidence of an employee to prove his status as a workman lies with the employee and just a company i-card is not enough to prove the employer-employee relationship (workman).
Even apex court has few ruling where the court has doubted the clean hands of the employee and questioned why the employee was silent for so many years.
Your input “The roles he has been performing has no relevance in gratuity payment. It is the last salary drawn and the length of service that are taken into account and therefore, you can certainly proceed with claiming of gratuity from your end” is correct but the type of employment has all relevance in deciding the gratuity payment.
I would appreciate your further input.
Regards,
From India, Pune
I have not gone through the complete text of the case, Coimbatore Cement Workers Union Vs. ACC Cements Ltd. I hope it is not the same National Cement Workers Union Vs. Government of Tamil Nadu in which the third respondent was ACC ltd, Coimbatore and the pertinent case was relating to exemption from ESI schemes. Any way, I understand that the onus to prove employee employer relationship lies on the employee. At the same time I believe that to establish employee employer relationship the commission of enquiry will take into consideration the nature of work, length of service and remuneration paid to a person by whatever name he is referred to and by whatever mode the remuneration is paid. In that circumstance I believe that the employee would get the protection offered by Law.
Regards,
Madhu.T.K
From India, Kannur
Regards,
Madhu.T.K
From India, Kannur
Dear Mr. Madhu T K,
Following is the details of the discussed case for your reference
Coimbatore cement Workers Union v. Management of ACC Ltd. & Ors. LLN (3) 2010P. 505
According to the petitioner (workers union& individual worker) he was serving as a room boy in the office of Coimbatore Cement Ltd and ACC Ltd. and he was paid a monthly salary of Rs. 1900/-. he was issued identity card at the time of his entry in the service. According to the petitioner the employers had promised him to regularise his service.
The petitioner claimed that his service was permanent in nature but the empoyer orally terminated his job without complying with the provisions of Section 25-F of tve ID Act. The petitioner raised an industrial dispute with regard to his alleged illegal termination.
The Conciliation Authority submitted his failure report to the govt. It was submitted on behalf of the govt. that the petition failed to produce any documentary evidence to show that he worked as a workman. hence the Govt was justified in declining to make a reference.
In the instant case there is documentary evidence to show that the petitioner was appointed as a room boy and that he was paid montly salary of Rs. 1900/-. The document called 'entry pass' cannot give the petitioner the status of a workman. It was held that unless the petitioner proves his status as a workman, tve appropriate Govt. cannot for the sake of asking, refer tve for adjudication. Therefore no interference is called in tve award. petition dismissed.
=================================================
regards
From India, Pune
Following is the details of the discussed case for your reference
Coimbatore cement Workers Union v. Management of ACC Ltd. & Ors. LLN (3) 2010P. 505
According to the petitioner (workers union& individual worker) he was serving as a room boy in the office of Coimbatore Cement Ltd and ACC Ltd. and he was paid a monthly salary of Rs. 1900/-. he was issued identity card at the time of his entry in the service. According to the petitioner the employers had promised him to regularise his service.
The petitioner claimed that his service was permanent in nature but the empoyer orally terminated his job without complying with the provisions of Section 25-F of tve ID Act. The petitioner raised an industrial dispute with regard to his alleged illegal termination.
The Conciliation Authority submitted his failure report to the govt. It was submitted on behalf of the govt. that the petition failed to produce any documentary evidence to show that he worked as a workman. hence the Govt was justified in declining to make a reference.
In the instant case there is documentary evidence to show that the petitioner was appointed as a room boy and that he was paid montly salary of Rs. 1900/-. The document called 'entry pass' cannot give the petitioner the status of a workman. It was held that unless the petitioner proves his status as a workman, tve appropriate Govt. cannot for the sake of asking, refer tve for adjudication. Therefore no interference is called in tve award. petition dismissed.
=================================================
regards
From India, Pune
I want to thank Malikjs and Madhu for their contributions. I'm on leave as of now and will take up the issue with the finance department when I rejoin work. Thanks again for now and I will keep everybody updated about how things turn out.
From India, Bangalore
From India, Bangalore
Dear Friends & Seniors, Thanks for all the co ordinations, I have managed to get the acceptance of resignation, relieving letter and experience certificate from the company.
The resg, rel and exp letter mentions his employment dates, last deignation and all designations etc. Its on letter head and signed and stamped by the admin eecutive of the company.
Prior approval mail is available with me from MD to take from available admin executive.
So shall I proceed to claim gratuity ????????, is there any documents that i need to attach it along with gratuity Form "I" provided by Mr. Madhu ???????
I reaaly thanks to all the members from bottom of my heart to help and guide me to all the knowledge and processess.
From India, Mumbai
The resg, rel and exp letter mentions his employment dates, last deignation and all designations etc. Its on letter head and signed and stamped by the admin eecutive of the company.
Prior approval mail is available with me from MD to take from available admin executive.
So shall I proceed to claim gratuity ????????, is there any documents that i need to attach it along with gratuity Form "I" provided by Mr. Madhu ???????
I reaaly thanks to all the members from bottom of my heart to help and guide me to all the knowledge and processess.
From India, Mumbai
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