Gratuity eligibility

The resignation will cause interruption/break in service as per Sec 2A of Payment of Gratuity Act.

You may negotiate to provide you the payment of Gratuity, for the tenure of service rendered in India as per formulae for Calculation of Gratuity:

Basic Pay + D.A. /26 X completed year of service X 15

Gratuity was calculated as 15 days salary (Basic + DA) for each year of service; however as per Bill Number Bill No. LI of 2012: THE PAYMENT OF GRATUITY (AMENDMENT) BILL, 2012 ………it was proposed to be raised to 30 days salary based on the rate of wages last drawn by the employee concerned:

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Here Basic + DA is as per last drawn salary ( You may stress to add VDA also, if applicable).

The employer has promoted you for the good service rendered for the company.

If employer does not want to pay in the form of Gratuity it can pay in the form of Tax free Ex gratia amount: given in a gratitude from the employer for an employee towards his good service rendered for the company.

Employer contributes Gratuity @ 4.8% of Basic + DA……

Section: 4
Payment of gratuity.

(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.

If Gratuity is stated in CTC sheet issued to you, then you may succeed to collect payment of Gratuity from your employer.

India has signed social security Agreement with 18 countries:

·                                 India has signed Social Security Agreements (SSAs) with Belgium, France,Germany (social insurance for posted workers only), Switzerland, Luxembourg, the Netherlands, Hungary, Denmark, the Czech Republic, Republic of Korea, Norway, Germany, Finland, Canada, Japan, Sweden, Austria and Portugal.

AND

·                                 Bilateral labour Memorandum of Understandings (MoUs) have also been signed with United Arab Emirates (UAE), Jordan, Qatar, Kuwait, Oman, Malaysia andBahrain for ensuring protection and welfare of overseas Indian workers. 

The salient features of such MoUs are : 

1.                                                       Declaration of mutual intent to enhance employment opportunities and for bilateral cooperation in protection and welfare of workers. 

2.                                                       The host country to take measures for protection and welfare of the workers in organized sector. 

3.                                                       Statement of the broad procedure that the foreign employer shall follow to recruit Indian Workers. 

4.                                                       The recruitment and terms of employment to be in conformity with the laws of both the countries. 

A Joint Working Group (JWG) is also constituted to ensure implementation of the MoU and to meet regularly to find solutions to bilateral labour problems.

Therefore you may understand the T&C of new appointment and negotiate to best of your advantage.

Valuable advice of learned experts/members is sought.

Thank you sir on your quick revert.

I spoke tomy HR team and they are of the view that since I have not completed 4yrs and 8 months of service with company, the company is not legally bound to pay the gratuity money to me.

4.8% of basic salary is deducted from my  salary (annualy) as gratuity amount right from the date of joining till date and since I have served 2 yrs 10 mths with the indian company and now relocating to the group company in UAE, my HR says this is termination of service and hence what ever deducted as 4.8% of basic in last 3 years salary shall not be paid to me as gratuity amount.

Request you to highlight/ provide some reference to section/ case laws related to this matter with solution if I can get this money or not..

Thanks, Mohit

You may go thru the post again, and relate it with your post-.

----“The resignation will cause interruption/break in service as per Sec 2A of Payment of Gratuity Act.” You were prompted to negotiate.

“HR says this is termination of service”: You are being asked to terminate the service by resignation.

“I have served 2 yrs 10 mths with the indian company and now relocating to the group company in UAE”: If you are being relocated to a group company, then company can transfer you by transfer order also.

 ----“You may negotiate to provide you the payment of Gratuity”

. You may negotiate with good offices of appointing authority, MD, Chairman….. and also line management/HR.

“4.8% of basic salary is deducted from my  salary (annualy) as gratuity amount right from the date of joining “

You were prompted to negotiate.

There are many threads initiated by employees at many portals, who got CTC sheets with Gratuity component mentioned in it, and such employees succeeded to claim Gratuity  although they did not serve for 4Y8M.

 Moeover nothing in the Act prevents or bars an employer to offer better terms of Gratuity to employee.

As per various threads many of the IT firms offered Gratuity after 2Y of service to reward the vintage and contribution by good service.

There are many threads on Gratuity at including Gratuity in CTC and Gratuity for Foreign Service:

https://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.UZSa8qKAqWM

You may go thru these. 

A similar query has been resolved by very senior and competent lawyer Mr. Raj Kumar Makkad at the following link:

https://www.lawyersclubindia.com/experts/Payment-of-gratuity-392796.asp#.UZSe7aKAqWN

You may go thru it.