Gratuity Confusion: Can I Claim It After Transferring to a Sister Company?

Hi, I am working in the IT department of a leading media company located in Mumbai, India. I joined in July 2008 and have been here until today (31st October 2013, i.e., 5 years, 3 months, and 16 days). I am about to be transferred to a sister company within the same organization/group (a transfer letter has been provided to me).

Gratuity Eligibility Inquiry

Q1. Would I be eligible to claim gratuity from my current company, or would I be able to claim gratuity after resigning from the organization/group completely?

Q2. Both the sister company's HR and the corporate HR are playing ping pong with me when questioned about my gratuity status. Additionally, the company has never paid gratuity to any employee who has resigned, even if eligible, as no one has ever asked for it. So, I would like to know my way forward in this.

Regards,

Eligibility for Gratuity Claim

Q1. Would I be eligible to claim gratuity from my current company, or would I be able to claim gratuity after resigning from the organization completely?

Please check the policy of your company to determine if transferred employees are considered continuing employees of the main company, and if all benefits continue to apply to them post-transfer. Please request a letter from HR confirming that all benefits and seniority will continue as per the terms and conditions of the appointment (offer) letter issued by the main company in the event of returning from a sister concern or subsidiary company to the main company.

Clarification on Conflicting Information

Q2. Both the sister company's HR and the corporate HR are giving me conflicting information when questioned about my gratuity status. Please ensure the terms of the transfer are clearly defined.

Additionally, the company has never paid gratuity to any employee who has resigned, but is eligible, as no one has ever asked for it. If you are denied, you may seek representation through legal counsel.

Attribution: https://www.citehr.com/474878-claimi...#ixzz2jI7Z1HSw

Dear Nayak, as you have been given a transfer letter to a sister concern of your company, it will be treated as continuous for the purpose of calculating your gratuity. If you had resigned and joined the sister concern, you would not have been able to claim the gratuity for the whole period. But in your case, it will be treated as continuous.

You can first ask for it; however, if they deny your claim, you can approach the Labour Commissioner of your area, who is also the authority under the Payment of Gratuity Act, with a complaint, and he will get you your gratuity within no time. Just focus on your work. Even if HR says that they will not give you gratuity for the whole period, your entitlement for the same doesn't die; you can still get the same just by approaching the Labour Commissioner. Hope your query is answered. Please feel free to revert in case of any doubt.

First of all, you can confirm with your HR whether the transfer to the Company Group is a continuous one or a new one. Please read the acceptance letter thoroughly before signing it. As per the right corporate norms, before issuing the letter of transfer within the same company group, the following should be taken care of by HR, and the following can be incorporated into your transfer order.

"Your past services, like gratuity, P.F. & E.P.F., superannuation if any, and other legal benefits, such as seniority, pay grades with this group, shall be transferred to the new assignment."

Otherwise, you can consult a labor law practitioner to address your doubts before signing.

With Regards,
Ravi

Review Your Appointment Letter

First, you should review your appointment letter because it clearly states in the clause of the appointment letter that you may be transferred to any branch or sister company when necessary in the future. So, although your location may change, you will still be working within the same group of companies.

We don't know the contents of your transfer letter and have no knowledge of the arrangements under which this 'transfer' is taking place. Did you sign any willingness letter detailing the terms and conditions of the transfer, or were you simply transferred? What happened to your erstwhile company? Has it been closed down or is it continuing?

Subject to this clarification, my view is that, in all probability, there won't be any clause in the transfer order about the payment of gratuity. On the other hand, since you are being treated as 'transferred' (presumably with continuity of service), the question of payment arises now.

At this point in time, it may be possible to confirm with your present employer whether the 'continuity' of service from the date of joining your previous employer onwards has been formalized and confirmed in unambiguous terms. It is prudent that you should address these issues now with your present employer, if not with your previous employer, instead of ignoring them now and regretting it later.

Right now, what is clear is that both are two different entities and are liable to answer these queries. Failing which, ask them to settle for the past service.

Regards

Dear Nayak, Often, transfer letters contain a clause stating, "your other terms and conditions shall remain unchanged." Please review your transfer letter for the following:

1. Does it stipulate that your service will be considered fresh in the new company?
2. Has a clause like the one mentioned above been provided in the letter?
3. Does the letter specify terms such as a fresh appointment or a continuing appointment?

In any case, since the employer remains the same, you have a fair chance of maintaining the continuity of service, including entitlement to gratuity. However, in case of the first point mentioned above, it could be seen as unfair labor practice, and you would be eligible to seek relief through the intervention of the Labor Commissioner.

Regards,
S.K. Johri

We have faced a similar situation in the recent past. The solution we found for this is that the company is maintaining the Gratuity Account with the same Fund Manager (for example, LIC of India). Therefore, even in cases of inter-company transfers, the respective Fund Manager has agreed to continue managing the Gratuity Account and provide the Gratuity Amount at the end of the service as per the statutory terms. Please review the details of the Fund Manager and the Gratuity Trust in your company. If you have any queries, you may approach the Fund Manager for clarification.

Regards,
Kumar

PFA my transfer letter. I have provided a transfer letter but have received a new Emp code and a joining letter.

Please tell if your date of joining is the same or if it has changed. I think you are entitled to gratuity as well as other benefits because it is a routine transfer.

Regards,
[Name Removed For Privacy Reasons]
[Phone Number Removed For Privacy Reasons]

I have received a new appointment letter with 1st November 2013 as my joining date, whereas July 2008 was my actual date of joining in the company groups.

Regards,

Dear Nayak, they have transferred you to their company and have not taken any resignation from you. This act itself makes your employment continuous. In one judgment of the Madras High Court, namely the Mettur Beardsell Ltd. Case, the same rationale was given by The Hon'ble Justice Abdul Wahab. Also, for payroll purposes, they will have to provide you with a joining letter that doesn't make your employment fresh. So, focus on your work and throw all your worries out of the window. Leave this for the time when you leave this organization. If, at that time, they decline to give you gratuity for the period you worked for the sister concern, you can file a complaint before the Assistant Labour Commissioner based on the transfer letter. Please keep that transfer letter safe until that period.

Hope that clears all the doubts. Feel free to revert in case of any further clarification.

Regards.

Since the management of the company remains the same, you are entitled to gratuity regardless of the issuance of a fresh/another letter of appointment. This is the legal position.

Regards,
S.K. Johri