Need expert guidance on the Gratuity matter urgently.
SITUATION: I started my employment with my previous employer back in Jan 2011 in India. I was transferred to US Jan 2015 on L1B visa. After visa got expired, I was transferred back to India office in Oct 2019 and served until Apr 2023. Total span I served with company is 12+ years (as specified below)
India - 4 years (Jan 2011 to Jan 2015)
US - 4 years 10 months (Jan 2015 to Oct 2019)
Back to India: 3 years 6 months (Oct 2019 to Apr 2023)
Now after leaving company, employer is claiming that I am not eligible for gratuity as I haven't completed gratuity eligibility period with the company to be eligible for gratuity.
In experience letter they issued, they have specified that I was employed with the company since Jan 2011 but claiming that I didn't serve for gratuity eligibility period.
Also gratuity wasn't paid as a part of salary anytime.
Can someone please help me in this regard.
From India, Delhi
SITUATION: I started my employment with my previous employer back in Jan 2011 in India. I was transferred to US Jan 2015 on L1B visa. After visa got expired, I was transferred back to India office in Oct 2019 and served until Apr 2023. Total span I served with company is 12+ years (as specified below)
India - 4 years (Jan 2011 to Jan 2015)
US - 4 years 10 months (Jan 2015 to Oct 2019)
Back to India: 3 years 6 months (Oct 2019 to Apr 2023)
Now after leaving company, employer is claiming that I am not eligible for gratuity as I haven't completed gratuity eligibility period with the company to be eligible for gratuity.
In experience letter they issued, they have specified that I was employed with the company since Jan 2011 but claiming that I didn't serve for gratuity eligibility period.
Also gratuity wasn't paid as a part of salary anytime.
Can someone please help me in this regard.
From India, Delhi
You may approach the Controlling authority under Payment of Gratuity Act. Before that send a demand/ claim for gratuity in the prescribed form (attached). If they refuse it, you can approach the Controlling authority. If your organisation has branches within one district in one state state only,, then the State is the appropriate authority and whereas you have offices in different states, then you can approach the Asst Labour Commissioner (Central). the form for taking intervention of the controlling authority is also attached for your reference.
From India, Kannur
4260From India, Kannur
Hi,
You should be eligible for Gratuity as the Employer remain the same throughout your employment period and transfer to USA is based on Organizational requirement.
But while you were in USA ( 2015 to Oct 2019) salary was processed at India or USA ?
What were clauses mentioned in your Transfer order to USA ? Need to check how the transfer was treated your employer during that period ?
From India, Madras
You should be eligible for Gratuity as the Employer remain the same throughout your employment period and transfer to USA is based on Organizational requirement.
But while you were in USA ( 2015 to Oct 2019) salary was processed at India or USA ?
What were clauses mentioned in your Transfer order to USA ? Need to check how the transfer was treated your employer during that period ?
From India, Madras
Thanks Madhu.T.K & Lakshmi Narayanan for your response.
@ Lakshmi Narayanan: When I was in USA ( Jan 2015 to Oct 2019) salary was processed by US business unit. On 2nd point, not sure of any clauses but I had to sign the US offer letter when I went to US and again when I came back to India I had to sign offer letter (which was usual practice in the organization for INTERNAL job transfers).
From India, Delhi
@ Lakshmi Narayanan: When I was in USA ( Jan 2015 to Oct 2019) salary was processed by US business unit. On 2nd point, not sure of any clauses but I had to sign the US offer letter when I went to US and again when I came back to India I had to sign offer letter (which was usual practice in the organization for INTERNAL job transfers).
From India, Delhi
These are only technical issues but so long as the establishment remains the same and the assignment abroad was a work arrangement by means of transfer or deputation, as the case may be, the length of service should be calculated from the date of joining and date of exit. Issuance of fresh appointment order by the US company cannot be treated as an interruption of service. It is also a question of law for that we have to verify whether you had "applied" for a job and is it against that application for employment that you were given an appointment order, whether that employment was "terminated", etc. Transfer is a work arrangement and no doubt the service should be treated as uninterrupted. Therefore, considering the total service and the last drawn salary, you may apply for gratuity in form I and wait for the response. In case they refuse to pay it, you should approach the Controlling Authority.
From India, Kannur
From India, Kannur
It appears from the original post that for each transfer it is not simply transfer. Probably left the services of India and joined as fresh candidate at USA and the payment was made as salary in dollar from USA. Again when transfer from USA to India it was resigned from USA job and new joining at India when salary was paid in Indian Rupee. Therefore, in each phase there were separate employment instead normal transfer.
There are MNCs where in case of transfer , the Indian salary is paid at India with all Indian facility - PF, Gratuity etc. and one allowance is paid at abroad. But in case of break of service ( left Indian service and joining new service at USA and vice-versa is break of service ) -it is a question of payment of gratuity as continuous service.
In the instant case if it is clearly mentioned that it is transfer with no break of service - there is possibility of getting Gratuity. As advised by other learned friends, you should apply to controlling authority for your gratuity claim.
S K Bandyopadhyay ( WB, Howrah)
CEO-USD HR Solutions
+91 98310 81531
skb@usdhrs.in
www.usdhrs.in
From India, New Delhi
There are MNCs where in case of transfer , the Indian salary is paid at India with all Indian facility - PF, Gratuity etc. and one allowance is paid at abroad. But in case of break of service ( left Indian service and joining new service at USA and vice-versa is break of service ) -it is a question of payment of gratuity as continuous service.
In the instant case if it is clearly mentioned that it is transfer with no break of service - there is possibility of getting Gratuity. As advised by other learned friends, you should apply to controlling authority for your gratuity claim.
S K Bandyopadhyay ( WB, Howrah)
CEO-USD HR Solutions
+91 98310 81531
skb@usdhrs.in
www.usdhrs.in
From India, New Delhi
@S K Bandyopadhyay for your response.
In experience letter they issued, they have specified that I was employed with the company since Jan 2011. For F&F settlement calculation, they are considering the Oct 2019 date. If they consider all three phases as separate employment then they should specify the employment from Oct 2019 on the experience/reliving letter, right? Any thoughts.
From India, Delhi
In experience letter they issued, they have specified that I was employed with the company since Jan 2011. For F&F settlement calculation, they are considering the Oct 2019 date. If they consider all three phases as separate employment then they should specify the employment from Oct 2019 on the experience/reliving letter, right? Any thoughts.
From India, Delhi
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Madras HC judg regarding gratuity is applicable if workmen is working 4 years 240 days..pdf