I joined this company in 2012. So during the interview and signing of papers, I was told that I was being hired on contract and the only difference between me and any other employee is that I would not have a PF and medical insurance deduction. We only had a deduction of 10% TDS. We were paid a fixed "fee" every month.
After about 6-7 years of working in the company, after GST was introduced, we were asked to submit monthly invoices for tax audit purposes.
Now, all the rules and regulations, all policies of the company were applicable to me. I was recruited by the head of department, asked to report to her and assigned tasks of equal nature with anyone else in the team. I was quite young back then and didn't realise that these wordings were simply abused and the recruits tactfully made to sign them, with the clandestine goal of circumventing provisions of the labour laws.
My work in the organisation is as per the monthly roster prepared by the HOD for both "on rolls" staff as well as the few "on contract" staff. Often by default in a year or two the "on contract" staff simply get put on payrolls. I was even asked if I wanted to but I said that I preferred to get that formality done a year or so later because the salary I drew back then was quite less. Deductions such as PF, Diwali Bonus among others would reduce my monthly take home to significantly lower amounts.
To make it clear - I was in practice an employee with no rights to do a "come and go as I like" sort of job or do just the amount of work I chose to and demand pay only for that. Not doing a chore, just any chore or task asked of me would have led to disciplinary action against me. Therefore in practice the word "independent" was null and void. The activity does NOT have to be something of my preference.
I have been using the magnetised ID card to swipe my attendance on a daily basis. I am entitled to annual pay hikes and twice I have been promoted as well. Only thing is that the payslip only shows "consultant fees, number of days worked, LWP days" and no other allowances. There is only a TDS deduction of 10% of the "fee".
Until recently the company did not have well framed policies and documents that defined various entitlements and duties of employees. Only recently with a revamp in the human resources department have these documents uploaded on the intranet site. As of now, separation policy document says that "on roll" employees are entitled to gratuity benefits and I would only be given the "fee" after deduction of the number of days I am unable to serve notice. - Here we go. I am not even allowed to just exit at my own free will and will have to pay for the notice period not served.
About 3-4 years ago, they got all the "contract" employees to sign a letter saying they do not have any PF account and hence are not getting provident funds from anywhere.
Now going by what is said in many of the threads on this subject, whatsoever the wordings of agreement may be and slyly calling the wages as "fee" and mentioning the appointment letter that "you will always be an independent contractor and will not approach any labour court" will be null and void as per the gratuity Act.
In short, I am not someone who works for pay as per the volume of work. Like someone calls and says "here we have this assignment, do it and submit before this deadline" and then I do that if I choose to and if I do I send an invoice listing out all the tasks I have performed. That is when I won't be covered by the definition of employee as per the Gratuity Act.
My understanding from the above situation is that:
1. I am undoubtedly covered under the gratuity act.
2. My wage will be the so-called fee in its entirety given there are no sub-headers that can classify as HRA, Travel Allowance etc.
Request your advice on how to proceed with making a demand with the employer. Your acknowledgement of my interpretation will be an added advantage when I approach the management instead of going through lodging of a grievance with the labour department.
The judgement related to M/S. Bagi Beedi Factory, Hubli vs The Appellate Authority may be referred to in which despite there being several gray areas in the case as compared to mine, the ruling has still gone in favour of the worker only.
I have also found a case, though on an unrelated subject on the question of defining employees under the Gratuity Act. In case case of IT Dept vs Wockhardt Hospitals, it was observed that irrespective of the term "independent contractors", the doctors being subject to the timing and work hours of Wockhardt would come under the definition of employee and not retainer as they didn't come and go as they pleased as consultants only.
