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When can I claim gratuity
22-Jun-2023 (In Labour & Service Law)
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.
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.
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.
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Adv. Manu Chaturvedi
Delhi | 25+ Answers
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