Advocate Manu Chaturvedi

Questions Answered by Advocate Manu Chaturvedi

Q: When can I claim gratuity

Dear Sir My organisation is a Pvt Ltd. company in architectural service. Actually My boss runs two pvt. ltd. companies in same profession and at same address and he continuously rotate the employees with in these two companies to avoid payment of gratuity. The numbers of both companies was more than 10, but at present we are only 4 people working in one company and second company is also running but no business done from last 3 years. I also working from 8 year and 5 months. Please advice that i have right to claim gratuity or not. 

Advocate Manu Chaturvedi answered
The complexity regarding two companies aside, if it can be shown that at any time during your tenure (8 years and 5 months) there were more than 10 employees in the company, then gratuity will accrue to you. It doesn't matter if after that, or previously, the number of employees fluctuated above or below 10. Now, coming to the two companies. You will principally be affected because by shifting you from one company to the other, your employer has induced a break in your tenure. A claim to Gratuity arises only if the employee has served for 5 years continuously (Called 'continuous employment'). By breaking your tenure among two companies, he has tried to circumvent paying gratuity. The tenability of your claim will eventually have to assessed in light of: 1) your employment contract (or lack of; i which case pay slips may be considered to determine where you were working and break in tenure); 2) our ability to prove that both companies are essentially the same and prove employers' mala fides.

Q: Can i file for divorce on behalf of my son

My son is an Nri. We are from hindu relig.He got married to a girl residing in Delhi only on papers. However marriage certificate was issued by arya samaj sansthan. Its been one year he had been married then my son went back to Australia in the meantime we were applying for spouse visa. But due to some issues my son cancelled the visa application. Girl is l ready for divorce but I want that my son should not come nd I cud file the case on the basis of power attorney. Is it possible? Wot action I can take against Dem

Advocate Manu Chaturvedi answered
If both, your son and daughter in law, are agreeable to the terms of divorce (maintenance or no maintenance, division of property etc.) then this would be a case of mutual divorce. Mutual divorce is permissible vide power of attorney, although a lot of discretion is bestowed on the concerned judge hearing the case. It is also advisable, if not mandatory, that your son enter appearance on at least one occasion and that he signs the divorce petition to be filed alongwith affidavit and vakalatnama. Subsequently, for the first and second motions (these are basically two separate dates on which the court asks both parties, husband and wife, to appear) your son's appearance may be substituted with a power of attorney in your favour. We have recently concluded a similar divorce case. Please feel free to get in touch for more details.

Q: Appointment letter does not include notice co. period asking for money

I was working in an organisation. There was no point of notice period in my appointment letter. I left the company and joined other organisation. When pressurised them to get relieving letter they wrote on that i am characterless and a fraud. They also deducted my salary. What action can i take against them?

Advocate Manu Chaturvedi answered
Remarks on your character notwithstanding, salary adjustment against failure to provide notice to your employer would depend on the following factors:1. Place of employment (since different states may have different shops and establishments act)2. Length of employment If you are working in Delhi with this company for over 3 month's (assuming all other finer details to be equal) and the contract / appointment letter is silent as to requirement of notice, Section 30 of the Delhi Shops and Establishments Act will apply. This Section provides for a mandatory one month notice to be given by the Employee to the Employer. If the Employee fails to do so, the Employer can deduct a month's wages in lieu of the same.-Manu Chaturvedi