Hello Friends
I am sure this below question has been asked by many people in the past but I couldn’t see any definite reply hence posting it again as it is crucial for me to understand that whether I am eligible for Gratuity or not:
I am working for an IT firm from Mar 2005 onwards. The same firm has transferred me to their parent office in USA in Feb 2008. Though my payroll has been shifted but I am still counted as a part of India branch and hence my performance appraisal and rest all HR coordination happens through India. My India employee code is still intact and I get tax related communication from our finance including Form 16 for every year though tax is always zero. Now I am planning to resign here in USA and I am not sure whether I will be eligible for gratuity or not.
Pls advice. If my company deines, can I take this matter in Indian court? If yes, what are the chances for me to win this case.
PS: In IT firms, these movement are quite frequent and employer send us to client locations and expect us to manage their business from abroad and finally when employee leaves the organisation, he doesn’t get advantage of social security in any country.
Thanks in advance
Regards
From United Kingdom, Crewkerne
I am sure this below question has been asked by many people in the past but I couldn’t see any definite reply hence posting it again as it is crucial for me to understand that whether I am eligible for Gratuity or not:
I am working for an IT firm from Mar 2005 onwards. The same firm has transferred me to their parent office in USA in Feb 2008. Though my payroll has been shifted but I am still counted as a part of India branch and hence my performance appraisal and rest all HR coordination happens through India. My India employee code is still intact and I get tax related communication from our finance including Form 16 for every year though tax is always zero. Now I am planning to resign here in USA and I am not sure whether I will be eligible for gratuity or not.
Pls advice. If my company deines, can I take this matter in Indian court? If yes, what are the chances for me to win this case.
PS: In IT firms, these movement are quite frequent and employer send us to client locations and expect us to manage their business from abroad and finally when employee leaves the organisation, he doesn’t get advantage of social security in any country.
Thanks in advance
Regards
From United Kingdom, Crewkerne
Dear Vivekbat
when u r in receipt of form 16 every year by the same company then it is clear that u r in continuous service even if u r working any where on behalf of the same company,
Read following and think urself whether u r eligible or not,
Payment of gratuity.
4. (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, —
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease :
[(c) “continuous service” means continuous service as defined in section 2A;]
2A. For the purposes of this Act, —
(1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order 10[* * *] treating the absence as break in service has been passed in accordance with the standing order, rules or regulations governing the employees of the establishment), lay off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act.
Hope it will clear ur doubt,
Regards,
KIRAN KALE
From India, Kolhapur
11when u r in receipt of form 16 every year by the same company then it is clear that u r in continuous service even if u r working any where on behalf of the same company,
Read following and think urself whether u r eligible or not,
Payment of gratuity.
4. (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, —
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease :
[(c) “continuous service” means continuous service as defined in section 2A;]
2A. For the purposes of this Act, —
(1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order 10[* * *] treating the absence as break in service has been passed in accordance with the standing order, rules or regulations governing the employees of the establishment), lay off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act.
Hope it will clear ur doubt,
Regards,
KIRAN KALE
From India, Kolhapur
Dear all,
kindly note that gratuity is applicacabloe to employees working continously 05 full 05 calender years, but, one condition applies that your working should be in the same organisation. i you were transferred to another firm in USA, please see that the director or the owner is the same, even if the company name is same.
regards
From India, Lucknow
kindly note that gratuity is applicacabloe to employees working continously 05 full 05 calender years, but, one condition applies that your working should be in the same organisation. i you were transferred to another firm in USA, please see that the director or the owner is the same, even if the company name is same.
regards
From India, Lucknow
Dear Vivekbat,
The inputs provided by Kiran Kale are quite valid with the following considerations:
Is your employment terminated in India while considering your employment in US??
Are you reappointed in US??
IF you are reappointed in US then the service that you render in India shall not be accountable. As the company is a separate entity and shall not have the relevance with the owner - if the interpretaion for the owner is an individual in the above perspective.
FORM 16 is only a declaration regarding the income earned by you in India in that firm but shall not essentially confirm your service. Need to take an expert opinion in this regard.
Further, For the purpose of calculation of Years of service, any fractions in the year shall be considered as below:
if the duration is 6 months or below then it is not considered as completed year of service.
If the duration is above 6 months then it is considered as completed year of service.
Cheers N Regards,
PN Narayana Vyas
From India, Secunderabad
The inputs provided by Kiran Kale are quite valid with the following considerations:
Is your employment terminated in India while considering your employment in US??
Are you reappointed in US??
IF you are reappointed in US then the service that you render in India shall not be accountable. As the company is a separate entity and shall not have the relevance with the owner - if the interpretaion for the owner is an individual in the above perspective.
FORM 16 is only a declaration regarding the income earned by you in India in that firm but shall not essentially confirm your service. Need to take an expert opinion in this regard.
Further, For the purpose of calculation of Years of service, any fractions in the year shall be considered as below:
if the duration is 6 months or below then it is not considered as completed year of service.
If the duration is above 6 months then it is considered as completed year of service.
Cheers N Regards,
PN Narayana Vyas
From India, Secunderabad
Hello Kiran, Narayana and Amit
Thanks for giving advice. Pls note that my employment was never been terminated in India and I never got any reappointment letter in US, which means, I have been transferred for assignment and my performance evaluation still happens in India and as a matter of fact my resignation formalities are also being coordinated by India HR. As a rule employee in such situation should come back to their home office but as I am joining a firm in US hence my reliving letter will be dispatched to my US address.
Why I got doubt as somewhere I read that you need to earn in India and your PF account should be active however in my case my salary is given in US by host country and I haven't submitted any PF in past 3 years.
Having said that so far my PF account is active and the interest is getting accumulated in the account. I have 2 emp. codes and both are linked i.e US employee code is linked with India employee code at the backend and both codes are active.
Ideally we people who have come on transfer, goes back after completing our assignment but not sure what Gratuity rules says in such situation.
Do they consider such transfer case, who are being paid in foreign land, eligible for gratuity or not?
Thanks
Vivek
From United Kingdom, Crewkerne
Thanks for giving advice. Pls note that my employment was never been terminated in India and I never got any reappointment letter in US, which means, I have been transferred for assignment and my performance evaluation still happens in India and as a matter of fact my resignation formalities are also being coordinated by India HR. As a rule employee in such situation should come back to their home office but as I am joining a firm in US hence my reliving letter will be dispatched to my US address.
Why I got doubt as somewhere I read that you need to earn in India and your PF account should be active however in my case my salary is given in US by host country and I haven't submitted any PF in past 3 years.
Having said that so far my PF account is active and the interest is getting accumulated in the account. I have 2 emp. codes and both are linked i.e US employee code is linked with India employee code at the backend and both codes are active.
Ideally we people who have come on transfer, goes back after completing our assignment but not sure what Gratuity rules says in such situation.
Do they consider such transfer case, who are being paid in foreign land, eligible for gratuity or not?
Thanks
Vivek
From United Kingdom, Crewkerne
Hello,
This is on behalf of my mother who has been teaching in an Un-aided educational institution in Bangalore since 25th May 2005 and is resigning on 9th April 2011. The school states that the 1st year is termed as probationary period and is refusing to pay the gratuity amount. The school states that the gratuity period of 5 years begins only after the probationary period (25 May 2006) and is using this statement to refuse the payment of gratuity as my mother is leaving the institution on 9th April 2011.
What can be done in such a case?
Thank you.
Statement in Offer letter
i.) Probationary Period: All the employees, except temporary employees appointed for a specific period will be on probation for a period of 9months in the first instance. The period of probation may be extended by the managing committee/board of governors but ordinarily for a period of 3 months. During this probationary period, this agreement is terminal by either party by giving 1 month notice or one month salary in lieu of notice provided. That such notice period terminates at the end of the term.
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From India, Bangalore
This is on behalf of my mother who has been teaching in an Un-aided educational institution in Bangalore since 25th May 2005 and is resigning on 9th April 2011. The school states that the 1st year is termed as probationary period and is refusing to pay the gratuity amount. The school states that the gratuity period of 5 years begins only after the probationary period (25 May 2006) and is using this statement to refuse the payment of gratuity as my mother is leaving the institution on 9th April 2011.
What can be done in such a case?
Thank you.
Statement in Offer letter
i.) Probationary Period: All the employees, except temporary employees appointed for a specific period will be on probation for a period of 9months in the first instance. The period of probation may be extended by the managing committee/board of governors but ordinarily for a period of 3 months. During this probationary period, this agreement is terminal by either party by giving 1 month notice or one month salary in lieu of notice provided. That such notice period terminates at the end of the term.
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From India, Bangalore
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Gratuity Eligibility.pdf
Gratuity eligibility for less than 5 yrs. (4yrs.240days). docx