Labour Law & Hr Consultant
Kumaran Praveen
Director - Hr
Loginmiraclelogistics & Management) Pg
+2 Others

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here is my case: I started in USA for a company ABC INC on 21st January 2008. In 2011 I was transferred to India entity of the ABC INC which is ABC India pvt ltd.
I came to India and started working from 8th Febuary 2011 (but was on US payroll till May 31st 2011). My India Payroll started from June 1st 2011.
now I am being transferred back to same US company on September 1st.
Will I be eligible for the gratuity? Should I resign before leaving? or should I wait?

I am not aware of the U.S legal provisions relating to gratuity of employees. Since your transfer from ABC INC to its Indian counter part ABC INDIA pvt Ltd and back shows the fact that you are an employee of the US Undertaking. Your entitlement to gratuity depends on the US Law if any relating to gratuity and the terms of contract between the two companies regarding transfer of employees between them.
Hi, Is the both the company fall under the same management? or Indian Company is a subsidiary of US Company?
yes. its the same management. I was offered new job letter in India with indian salary here in 2011.
its subsidiary with common directors of pvt ltd and INC. management is same as well. I am talking about gratuity as per India LAW. I had offer letter from India entity when I came back.
please let me know what you think.

As per indian law if you complete 5 years of continuous service, you will be eligible for gratuity and as you been in indian pay roll from 2011 you have to continue your service till june,2016 to be eligible for it.
Thank Yoy

Legally you became employee in india in June 11 & are transferred in September 15. That is less than 5 years of service, gratuity act will not be applicable in your case.
You will be eligible for gratuity in india only if you worked for not less than five years under it in India
Presumably your Appointment/Transfer order should tell you the Terms & conditions of your service benefits, compensation package etc. Your case is a unique one, serving here and there that too with different entities located at different countries. Indian Laws applicable only within India and I don't think you'll have any clue from these legislations. Even if presuming that your entire service were to be in India I don't think you'll be eligible for a gratuity payment under the Payment of Gratuity Act as I believe your emoluments could easily surpass the limits provided in the Act. I may suggest that instead of searching for opinions here you should either address this issue to them/discuss with your HR who dealt your career or take suggestions from your colleagues who left under similar circumstances. Still I have nothing to suggest you either to continue or quit under this pretext for the simple reason that one cannot decide the future career only on gratuity aspect alone as there are clinching factors also to be looked into. May be the period (1.6.2011 to 1.9.2011 ??) during which you were working in India with an India incorporated co. could account for this issue remotely as I doubt whether you completed the qualifying service as per PGA. In all probability some clarity could emerge when you would address your queries to your employers in India and in US.
No. Gratuity act applies to only Indian companies and as you have not worked for 5 years in Indian co, you will not be entitled for gratuity legally. Your company as good employer, can make a deviation to this affect.
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