Dear All,
Thank you for the information. However, the last thing I learned about gratuity was that it is a payment through which an employer shows gratitude towards their employee for working for a long period with the company. Even though the law exists, the employer may not be bound by it. In fact, this was explained to us by a law practitioner. So, in the case of Yasmin, how will this take effect?
Please let me know.
Thanks & Regards,
Anuja
From India, Mumbai
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2Thank you for the information. However, the last thing I learned about gratuity was that it is a payment through which an employer shows gratitude towards their employee for working for a long period with the company. Even though the law exists, the employer may not be bound by it. In fact, this was explained to us by a law practitioner. So, in the case of Yasmin, how will this take effect?
Please let me know.
Thanks & Regards,
Anuja
From India, Mumbai
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Dear Yasmin,
It is mandatory for an employer to pay gratuity whether the company is in loss or profit. You need not worry. Just show one thing that proves your husband was a permanent employee. You can demonstrate this by providing an offer letter, salary slip, promotion letter, any letter showing experience, or through employees of that company. Simply make a written complaint and send it to the DLC. If the DLC does not take any action, then escalate it to the LABOUR COMMISSIONER. He or she will assist you. You need to be bold to teach the employer a lesson.
From India, Delhi
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It is mandatory for an employer to pay gratuity whether the company is in loss or profit. You need not worry. Just show one thing that proves your husband was a permanent employee. You can demonstrate this by providing an offer letter, salary slip, promotion letter, any letter showing experience, or through employees of that company. Simply make a written complaint and send it to the DLC. If the DLC does not take any action, then escalate it to the LABOUR COMMISSIONER. He or she will assist you. You need to be bold to teach the employer a lesson.
From India, Delhi
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Dear Anuja,
Are you an HR professional? Or are you working in some other functional areas?
Kindly check up with the labor laws and statutes before giving such "expert" advice, as it amounts to misguiding the person.
I wonder what "your law practitioner" will answer if asked whether a bonus is payable if the company makes a loss.
For your information, gratuity was initially given as a "reward" or a "gratuitous" payment for long dedicated service. Similarly, "bonus" in Latin means "something extra" and was given as an additional payment during festivals and when the company made profits.
Since then, a lot has changed. Since 1972 and 1965 respectively, the payment of gratuity and bonus is no longer voluntary but compulsory.
So, it's 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 labor 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 "labor practitioner" and find someone more competent.
Warm regards.
.
From India, Delhi
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Are you an HR professional? Or are you working in some other functional areas?
Kindly check up with the labor laws and statutes before giving such "expert" advice, as it amounts to misguiding the person.
I wonder what "your law practitioner" will answer if asked whether a bonus is payable if the company makes a loss.
For your information, gratuity was initially given as a "reward" or a "gratuitous" payment for long dedicated service. Similarly, "bonus" in Latin means "something extra" and was given as an additional payment during festivals and when the company made profits.
Since then, a lot has changed. Since 1972 and 1965 respectively, the payment of gratuity and bonus is no longer voluntary but compulsory.
So, it's 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 labor 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 "labor practitioner" and find someone more competent.
Warm regards.
.
From India, Delhi
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Dear All,
Law is a convenience store which can be used on a need-based. Gratuity is a legal act which the company has to follow and can be prosecuted if violated. So, companies that do not follow the basic law need to be warned and informed to fulfill their obligations.
Regards,
Shridhar
From India, Mumbai
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Law is a convenience store which can be used on a need-based. Gratuity is a legal act which the company has to follow and can be prosecuted if violated. So, companies that do not follow the basic law need to be warned and informed to fulfill their obligations.
Regards,
Shridhar
From India, Mumbai
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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
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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
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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. Anyway, I understand that the onus to prove employee-employer relationship lies on the employee. At the same time, I believe that to establish an employee-employer relationship, the commission of inquiry 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
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Regards, Madhu.T.K
From India, Kannur
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Dear Mr. Madhu T K,
Following are 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 and individual worker), he was serving as a room boy in the offices of Coimbatore Cement Ltd and ACC Ltd., and he was paid a monthly salary of Rs. 1900. He was issued an identity card at the time of his entry into service. The petitioner claimed that the employers had promised to regularize his service.
The petitioner claimed that his service was permanent in nature, but the employer orally terminated his job without complying with the provisions of Section 25-F of the ID Act. The petitioner raised an industrial dispute regarding his alleged illegal termination.
The Conciliation Authority submitted a failure report to the government. It was submitted on behalf of the government that the petitioner failed to produce any documentary evidence to show that he worked as a workman. Hence, the government 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 was paid a monthly 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, the appropriate government cannot, for the sake of asking, refer the case for adjudication. Therefore, no interference is called for in the award, and the petition is dismissed.
Regards
From India, Pune
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Following are 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 and individual worker), he was serving as a room boy in the offices of Coimbatore Cement Ltd and ACC Ltd., and he was paid a monthly salary of Rs. 1900. He was issued an identity card at the time of his entry into service. The petitioner claimed that the employers had promised to regularize his service.
The petitioner claimed that his service was permanent in nature, but the employer orally terminated his job without complying with the provisions of Section 25-F of the ID Act. The petitioner raised an industrial dispute regarding his alleged illegal termination.
The Conciliation Authority submitted a failure report to the government. It was submitted on behalf of the government that the petitioner failed to produce any documentary evidence to show that he worked as a workman. Hence, the government 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 was paid a monthly 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, the appropriate government cannot, for the sake of asking, refer the case for adjudication. Therefore, no interference is called for in the award, and the petition is dismissed.
Regards
From India, Pune
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I want to thank Malik 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
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From India, Bangalore
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Dear Friends & Seniors,
Thanks for all the coordinations. I have managed to obtain the acceptance of resignation, relieving letter, and experience certificate from the company. The resignation, relieving, and experience letters mention his employment dates, last designation, and all designations, etc. They are on the letterhead and signed and stamped by the administrative executive of the company. Prior approval mail is available with me from the MD to obtain from the available administrative executive.
So, shall I proceed to claim gratuity? Are there any documents that I need to attach along with the gratuity Form "I" provided by Mr. Madhu?
I really thank all the members from the bottom of my heart for helping and guiding me through all the knowledge and processes.
From India, Mumbai
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Thanks for all the coordinations. I have managed to obtain the acceptance of resignation, relieving letter, and experience certificate from the company. The resignation, relieving, and experience letters mention his employment dates, last designation, and all designations, etc. They are on the letterhead and signed and stamped by the administrative executive of the company. Prior approval mail is available with me from the MD to obtain from the available administrative executive.
So, shall I proceed to claim gratuity? Are there any documents that I need to attach along with the gratuity Form "I" provided by Mr. Madhu?
I really thank all the members from the bottom of my heart for helping and guiding me through all the knowledge and processes.
From India, Mumbai
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