gratuity,need clarification and advise
Querist :
Anonymous
(Querist) 20 December 2010
This query is : Resolved
Questions on Gratuity
1..An employee is working in India in a company for 2 years and the same employee is being deputed offshore with teh same company of course and he completes 3 years there. Now can he ask for gratuity?? Yes or No, plz answer or in other words, the social welfare laws will be applicbale to him for a period of 3 years means whether his PF etc would be deducted??
2..If a company say bbb is being taken over/merged by CCC, who will be responsibel to pay gratuity for teh employees working in BBB, will it be BBB or CCC or does it depends upon hte agreement between the two companies
and if CCC company play smart and ask the employees of BBB that now you guys are on my payrolls and hence you would be given a new appointment letter and hence you will not be liable for gratuity and then in this case, will the company CCC will be rihgt in doing so and what are the remedies availaible to the employees of BBB who due to new appointment letter has not become employee of CCC
3...A company who decides to wind up/insolvency, can an employee working in that company for more than 5 years ask for gratuity and can file a case in a court of law as a debt payable by the said bankrupt company
Also
employee" means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such 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 payment of gratuity.
one more doubt i have, please find above the definition of the employee as given under gratuity act, this says that the govt employees are not covered under this act if the post defined above does not have a different meaning, plz let me know if this is the right interpretation??
thanks in advance
Querist :
Anonymous
(Querist) 20 December 2010
just to clarify the above definition is given in gratuity act
R.Ramachandran
(Expert) 21 December 2010
1. If the employee is in the rolls of the same company for 5 years and more (whether on shore or off shore), then he would be certainly entitled for gratuity.
There is no link between PF deductions and social scheme. [The PF deductions have to be done on month to month basis. If it had not been done, then you should have asked for clarification immediately and got the matter sorted out. - Now you say whether the PF deduction would be done or not? It is not clear as to what is the arrangement/understanding while sending you abroad.
2. Whenever a company is taken over/merged, the existing liabilities at least to the extent that they relate to the existing employees would be taken over by the taking over Company. Therefore the taking over company playing smart as far as gratuity is concerned does not arise. Of course, after taking over, the new company may relieve those employees who are in the verge of completing 5 years to save the payment of gratuity. That is a different matter.
3. If a company decides to wind up/insolvency, the employees working in that company for more than 5 years can definitely ask for their gratuity and can file a case in a court of law.
Ajay Bansal
(Expert) 23 December 2010
SEE A.I.R. MANUAL.
