Need expert guidance on the Gratuity matter urgently.
Situation:
I started my employment with my previous employer back in January 2011 in India. I was transferred to the US in January 2015 on an L1B visa. After the visa expired, I was transferred back to the India office in October 2019 and served until April 2023. The total span I served with the company is over 12 years (as specified below):
India - 4 years (January 2011 to January 2015)
US - 4 years 10 months (January 2015 to October 2019)
Back to India: 3 years 6 months (October 2019 to April 2023)
Now, after leaving the company, the employer is claiming that I am not eligible for gratuity as I haven't completed the gratuity eligibility period with the company.
In the experience letter they issued, they have specified that I was employed with the company since January 2011 but are claiming that I didn't serve for the gratuity eligibility period.
Also, gratuity wasn't paid as a part of the salary at any time.
Can someone please help me in this regard?
From India, Delhi
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Situation:
I started my employment with my previous employer back in January 2011 in India. I was transferred to the US in January 2015 on an L1B visa. After the visa expired, I was transferred back to the India office in October 2019 and served until April 2023. The total span I served with the company is over 12 years (as specified below):
India - 4 years (January 2011 to January 2015)
US - 4 years 10 months (January 2015 to October 2019)
Back to India: 3 years 6 months (October 2019 to April 2023)
Now, after leaving the company, the employer is claiming that I am not eligible for gratuity as I haven't completed the gratuity eligibility period with the company.
In the experience letter they issued, they have specified that I was employed with the company since January 2011 but are claiming that I didn't serve for the gratuity eligibility period.
Also, gratuity wasn't paid as a part of the salary at any time.
Can someone please help me in this regard?
From India, Delhi
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You may approach the Controlling Authority under the 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.
Determining the Appropriate Authority
If your organization has branches within one district in one state only, then the State is the appropriate authority. However, if you have offices in different states, you can approach the Assistant Labour Commissioner (Central). The form for seeking intervention from the Controlling Authority is also attached for your reference.
From India, Kannur
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4526Determining the Appropriate Authority
If your organization has branches within one district in one state only, then the State is the appropriate authority. However, if you have offices in different states, you can approach the Assistant Labour Commissioner (Central). The form for seeking intervention from the Controlling Authority is also attached for your reference.
From India, Kannur
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Hi, you should be eligible for gratuity as the employer remained the same throughout your employment period, and the transfer to the USA was based on organizational requirements.
But while you were in the USA (2015 to Oct 2019), was your salary processed in India or the USA?
What clauses were mentioned in your transfer order to the USA? I need to check how the transfer affected your employment during that period.
From India, Madras
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But while you were in the USA (2015 to Oct 2019), was your salary processed in India or the USA?
What clauses were mentioned in your transfer order to the USA? I need to check how the transfer affected your employment during that period.
From India, Madras
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Thanks, Madhu T.K and Lakshmi Narayanan, for your responses.
@ Lakshmi Narayanan: When I was in the USA (Jan 2015 to Oct 2019), the salary was processed by the US business unit. Regarding the second point, I am not sure of any clauses, but I had to sign the US offer letter when I went to the US, and again when I came back to India, I had to sign the offer letter (which was the usual practice in the organization for internal job transfers).
From India, Delhi
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@ Lakshmi Narayanan: When I was in the USA (Jan 2015 to Oct 2019), the salary was processed by the US business unit. Regarding the second point, I am not sure of any clauses, but I had to sign the US offer letter when I went to the US, and again when I came back to India, I had to sign the offer letter (which was the usual practice in the organization for internal job transfers).
From India, Delhi
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Understanding Gratuity Eligibility for Transferred Employees
These are only technical issues, but as 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 a fresh appointment order by the US company cannot be treated as an interruption of service. It is also a question of law that we have to verify whether you had "applied" for a job, and if it was against that application for employment that you were given an appointment order, whether that employment was "terminated," etc.
Transfer as a Work Arrangement
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
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These are only technical issues, but as 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 a fresh appointment order by the US company cannot be treated as an interruption of service. It is also a question of law that we have to verify whether you had "applied" for a job, and if it was against that application for employment that you were given an appointment order, whether that employment was "terminated," etc.
Transfer as a Work Arrangement
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
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It appears from the original post that for each transfer, it is not simply a transfer. Probably, the individual left the services in India and joined as a fresh candidate in the USA, with payment made as a salary in dollars from the USA. Again, when transferring from the USA to India, the individual resigned from the USA job and had a new joining in India where the salary was paid in Indian Rupees. Therefore, in each phase, there were separate employments instead of a normal transfer.
There are multinational corporations where, in the case of a transfer, the Indian salary is paid in India with all Indian facilities—such as PF, Gratuity, etc., and an allowance is paid abroad. However, in the case of a break in service (leaving Indian employment and joining a new service in the USA and vice versa, which constitutes a break in service), it raises the question of the payment of gratuity as continuous service.
In the instant case, if it is clearly mentioned that it is a transfer with no break in service, there is a possibility of receiving gratuity. As advised by other knowledgeable friends, you should apply to the controlling authority for your gratuity claim.
S K Bandyopadhyay (WB, Howrah)
CEO - USD HR Solutions
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[Email Removed For Privacy Reasons]
www.usdhrs.in
From India, New Delhi
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There are multinational corporations where, in the case of a transfer, the Indian salary is paid in India with all Indian facilities—such as PF, Gratuity, etc., and an allowance is paid abroad. However, in the case of a break in service (leaving Indian employment and joining a new service in the USA and vice versa, which constitutes a break in service), it raises the question of the payment of gratuity as continuous service.
In the instant case, if it is clearly mentioned that it is a transfer with no break in service, there is a possibility of receiving gratuity. As advised by other knowledgeable friends, you should apply to the controlling authority for your gratuity claim.
S K Bandyopadhyay (WB, Howrah)
CEO - USD HR Solutions
[Phone Number Removed For Privacy-Reasons]
[Email Removed For Privacy Reasons]
www.usdhrs.in
From India, New Delhi
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Thank you for your response, @S K Bandyopadhyay.
In the experience letter they issued, they have specified that I was employed with the company since January 2011. For the F&F settlement calculation, they are considering the October 2019 date. If they consider all three phases as separate employment, then they should specify the employment from October 2019 on the experience/relieving letter, right?
Any thoughts?
From India, Delhi
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In the experience letter they issued, they have specified that I was employed with the company since January 2011. For the F&F settlement calculation, they are considering the October 2019 date. If they consider all three phases as separate employment, then they should specify the employment from October 2019 on the experience/relieving letter, right?
Any thoughts?
From India, Delhi
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