Gratuity pay eligibility for IT service company

Your reply or thoughts on this will be helpful.

Thanks

Mohan

Dear Chandramohan

It all depends on whether the employer employee relationship continued between you and the Bangalore company during your work in US. The order given to you at the time you were sent to US will clariy this issue. Please furnish this details so that your query can be answered.

V.HARIKRISHNAN

Hi Hari,

This is what I see in my transfer letter for work purpose. Here my company states Gratuity not applicable if transferred outside India for work related etc.

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We are pleased to inform you that you are being transferred on an an assignment to USA, beginning the day you land in U.S under the following terms and condition .

- For the purpose of calculating gratuity, the period of service in India only will be considered for accounting purpose.
- You will be covered under US payroll from the day you report to work in US. Your India salary components such as Basic, FP, Gratuity , PF etc will be stopped from this date

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Thanks

Mohan

Dear Mr.Chandra Mohan

I presume that the transfer order was given by the company in which you were working in Bangalore prior to your departure to the US. From the information given by you, my conclusion is that you were "transferred" to the US. Therefore the relationship of employer and employee continued between you and your employer at Bangalore even though you were transferred to US. Whether you were covered by the US pay roll or the Indian pay roll, according to my opinion, is not relevant. What is relevant is the continuance of employer and employee relationship between you and your employer at Bangalore during Tthe period of your work at US.. Therefore according to my view,if the relationship of employer and employee continued between you and your company during the period of your work at US  the company cannot unilaterally say that the period of service in US will not be considered for gratuity. This stand of the Company in excluding the period of service at US for calculating gratuity is, according to me,  contrary to the provisions of the Payment of Gratuity Act and is not legally sustainable. As for as my knowledge goes, there are no cases decided either by the various Honourable High Court or the   Honourable Supreme Court of India on this issue, i.e. whether on transfer to a foreign country can the employer refuse gratuity to the employee for the period of service in the foreign country. My suggestion is that you can initiate appropriate action under the Payment of Gratuity Act against your employer at Bangalore for the payment of gratuity. In case your employer has branches in more than one State in India, you have to approach the Controlling Authority under the Payment of Gratuity Act notified by the Central Government. To ascertain who is the controlling authority under the PG Act notified by the Central Government you may contact the Regional Labour Commissioner(Central) with headquarters at Bangalore. In case your employer does not have any branches outside Karnataka, you have to approach the Controlling Authority under the Payment of Grautity Act notified by the Government of Karnataka. For information on this you may approach the office of the Commissioner of Labour Government of karnataka situated in Bangalore. But if you seek remedy under the PG Act, definitely, your employer will fight it out. So be prepared for a long legal battle and engagage a good lawyer to handle your case.

With regards

V.HARIKRISHNAN