Yaasmin,
the matter is 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 become more tough.
Suppose on paper (for audit purpose) the employer has shown yr 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 its an offence on the part of the employer.
It seems the employer is doing wrong on all fronts.
Ask your husband to write a letter (wit registered post) to the owner of 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 consults us.
regards
From India, Pune
173the matter is 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 become more tough.
Suppose on paper (for audit purpose) the employer has shown yr 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 its an offence on the part of the employer.
It seems the employer is doing wrong on all fronts.
Ask your husband to write a letter (wit registered post) to the owner of 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 consults us.
regards
From India, Pune
Dear Mr. Kamal,
Thanks for the suggestion, I will go according to your suggestions and there after mr. madhu's suggestions and by the time - this sunday i will gather all the documents (incase if i am able to get i card) of the comapny and documents stating or reflecting employment then i ll come back with it on monday with scan copies attached.
I have some documents reflecting his employment, i will get the scan copies on monday on this post.
From India, Mumbai
Thanks for the suggestion, I will go according to your suggestions and there after mr. madhu's suggestions and by the time - this sunday i will gather all the documents (incase if i am able to get i card) of the comapny and documents stating or reflecting employment then i ll come back with it on monday with scan copies attached.
I have some documents reflecting his employment, i will get the scan copies on monday on this post.
From India, Mumbai
i want to clarity one more thing, will the experince letter stating period of works as mentioned and signed ny authority in mumbai office will work as a proof of employment.
And proof for last drawn salary is bank statement of last two years
From India, Mumbai
And proof for last drawn salary is bank statement of last two years
From India, Mumbai
Dear Friends,
It has been intimated to me from some consultant that if an employer issues salary compensation letter with out intimating any details of gratuity then the employer is not bound to pay any kind of gratuity to an employee who leave after completion of 5 years.
Please confirm if it is true.
From India, Mumbai
It has been intimated to me from some consultant that if an employer issues salary compensation letter with out intimating any details of gratuity then the employer is not bound to pay any kind of gratuity to an employee who leave after completion of 5 years.
Please confirm if it is true.
From India, Mumbai
Yaasmin,
experience letter can be a supportive document of your claim but employment conditions are not mentioned in the experience letter. Experience letter will certainly prove that the concerned person has worked with the said employer.
From India, Pune
experience letter can be a supportive document of your claim but employment conditions are not mentioned in the experience letter. Experience letter will certainly prove that the concerned person has worked with the said employer.
From India, Pune
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. Its a statutory obligation of the employer.
Recently the definition of employees as been amended and the new definition of employee very wide to cover almost all type of employment with the employer.
amended definition of employee : “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, 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;’.
From India, Pune
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. Its a statutory obligation of the employer.
Recently the definition of employees as been amended and the new definition of employee very wide to cover almost all type of employment with the employer.
amended definition of employee : “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, 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;’.
From India, Pune
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 recieve any type of compensation when we leave a company no matter how large or small. This might be the mind set of the company in the discussion - they might not understand your countries 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 woth out issues. The main reason to give a US employee a 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
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 recieve any type of compensation when we leave a company no matter how large or small. This might be the mind set of the company in the discussion - they might not understand your countries 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 woth out issues. The main reason to give a US employee a 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
Inorder prove employer employee relationship there is no need of 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 have wage register, 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 proving employer employee relationship by the employee does not arise. Similarly, unless otherwise contracted all persons working for the establishment are considered only as employees and as such the question of giving him a designation of "consultant" doesn't arise. In the absence of such an agreement, he is said to be an employee only.
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.
Regards,
Madhu.T.K
From India, Kannur
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.
Regards,
Madhu.T.K
From India, Kannur
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 company 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 network of HR professionals and share your knowledge, learnings and views.
Warm regards.
From India, Delhi
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 company 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 network of HR professionals and share your knowledge, learnings and views.
Warm regards.
From India, Delhi
I have a similar problem.
I had worked for 9yrs and 6 months in a autonomous body under ministry of Industries, Govt. of India. They did not pay me gratuity on my resignation quoting that it is not applicable in Govt. service if employee resigns but even then, this organisation 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 got any reply.
KIndly let me know what can be done.
From India, Mumbai
I had worked for 9yrs and 6 months in a autonomous body under ministry of Industries, Govt. of India. They did not pay me gratuity on my resignation quoting that it is not applicable in Govt. service if employee resigns but even then, this organisation 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 got any reply.
KIndly let me know what can be done.
From India, Mumbai
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