Gratuity eligibity on a transfer from india to outside

---“ My HR mentions that I will not be eligible for Gratuity ………. as I have been transferred to a foreign country for 2 years and this resulted in a break of my service in India.”

“I have never resigned from the company in this whole duration of 5 years”

“I have been transferred to a foreign country in this period for about 2 years and receive the salary payslip as per the foreign country & pay the tax in the foreign country (no salary received in India and no tax paid in india during this period)”

The Payment of Gratuity Act, 1972 is silent on location of the employee.

How was your posting in US effected by the company e.g. by way of transfer/deputation?? Transfer and deputation are part of service conditions.

You were on job…

You move to US for business reasons of Employer……Isn’t it? Company must have stated in its appointment letter issued to you that you can be transferred to any of its division, offices etc…..

Was there any change in the employer? Were you on duty with same employer?

Apparently there was no change in the status of the employer…..

Your lawyer may opine that Salary was computed in India or Abroad may not make much difference.

Did your company provide any social security benefit to you during your stay in US? It is felt that India has not signed Social Security Pact with US……

If you were on duty with same employer in US then there should be no effect on regularity of service and you should be eligible.

---If your company had issued PF number to you while you were posted in India, you may check whether PF contributions were deposited in you’re a/c while you were in US.

PLS REMEMEBER TO ISSUE A COMMUNICATION IN WRITING  (UNDER PROPER ACKNOLWEDGMENT WITH A COPY TO YOU) ADDRESSED TO GOOD OFFICES OF APPOINTING AUTHORITY, MD THAT COMPONAY MAY DEDUCT EMPLOYEE’S CONTRIBUTION OF  PF AND GRATUITY FOR ALL YEARS OF YOUR SERVICE ABROAD and add the PF contribution of Employer and deposit funds in your PF account. (You may add that you have been requesting in person for it in office.)

If employer has not been deducting and depositing PF (Gratuity: only employer has to deposit) this communication from you shall help you to regularize your PF account and accumulate funds.

You may visit a competent and experienced labor consultant/service lawyer and show all documents including but not limited to standing orders of the company, appointment letter, intra company transfer letter, all documents signed by you before leaving for foreign location, service agreement, expenses incurred by company on sending you abroad, revenue/profits generated by you abroad, social security benefits provided by company to you while abroad, your salary slip/CTC sheet while in India and while abroad, increments granted to you while abroad ( or no increment was awarded), appraisal sheets, appreciation emails/letters/awards/rewards, certificates of commendation etc…..

Ands answer a few questions like whether the company kept your PF, Gratuity, ESIC, Group Insurance, Mediclaim policy, etc in force and regular while you were abroad???

PF dept. has made the system online or you may peruse RTI route.

There are many threads at LCI on Gratuity

Discussion > Labour & Service Law > Gratuity

At the following link:

https://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.UUXdnkpFZ_4

and on specific points raised by you too. You may find these useful relevant e.g;

Discussion > Labour & Service Law > Gratuity > Gratuity unpaid

At following link:

https://www.lawyersclubindia.com/forum/details.asp?mod_id=67376&offset=1#.UHE68mcWrts

You may find the attachment useful.

prem_sagar_sharma_vs_central_warehousing_corporation

Do not limit yourself to HR only.Escalate to good ofices of Appointing Authority, MD, Chairman, Compnay Secretary...and apply your goodwill, rapport, persuasion, persisitence, negotiation, reasoning skills.

Valuable advice of learned experts/members is sought.

Thanks a lot for your informative reply about this.

I don't think there has been any gratuity submitted to Indian government during my overseas stay. Is there any site in which I can check if the Gratuity has been submitted on my company behalf. (I hope this one is for the PF - https://search.epfoservices.in/estt_search/est_search.php )

My HR (all the different parties are copied but its HR that is only worried about to reply on this to me) just mentioned that these will not be applicable and will get back again after checking more information on the mention of transfer applicability. So I have to wait for them to get back.

Are there any cases filed and won in this regard? This should be good proof that we can refer to if exists. If we can browse through the history of the cases won on this regard of transfer then it might help quickly to make all parties understand-  as I hope there should a lot people who faced this before.

You have posted that:

--“ (I hope this one is for the PF - https://search.epfoservices.in/estt_search/est_search.php )”

First of all peruse for PF. PF and gratuity are statutory benefits employer has to provide to employees and are social security tools.

PLS REMEMEBER TO ISSUE A COMMUNICATION IN WRITING  (UNDER PROPER ACKNOLWEDGMENT WITH A COPY TO YOU) ADDRESSED TO GOOD OFFICES OF APPOINTING AUTHORITY, MD THAT COMPONAY MAY DEDUCT EMPLOYEE’S CONTRIBUTION OF  PF AND GRATUITY FOR ALL YEARS OF YOUR SERVICE ABROAD and add the PF contribution of Employer and deposit funds in your PF account. (You may add that you have been requesting in person for it in office.)

The employer is provided with PF a/c slips of all accounting years by concerned EPFO office for supplying it (It is Mandatory) further to employees. Some employers put the scanned copies on employee portal and employee can download whereas some handover in office. Some employers might have initiated e-filing and hence employees can download e-passbooks.

--“ I don't think there has been any gratuity submitted to Indian government during my overseas stay. Is there any site in which I can check if the Gratuity has been submitted on my company behalf.”

Your payroll dept can provide the policy number of Gratuity it has taken from LIC and Log in id. You can check on line for amounts credited to your a/c..

The P&S Dept. of concerned office of LIC can also provide the details. You may have to apply your resources.

--“ My HR (all the different parties are copied but its HR that is only worried about to reply on this to me) just mentioned that these will not be applicable and will get back again after checking more information on the mention of transfer applicability. So I have to wait for them to get back.’

The o/o Appointing Authority, MD is the party for you to escalate. They may handover the task to HR. It is your prerogative to keep HR in copy or not.

--“ Are there any cases filed and won in this regard?”

An adamant and rigid employer may not be deterred by citations.

Such maters are best resolved by applying goodwill, rapport, exceptional levels of reasoning, persuasion, persistence, negotiation skills, while in employment.

Your employer would need employees to handle his overseas div. now and then if not you someone else.

All employees would be wise enough to understand that employer is a violator of its contractual liabilities and statutory benefits it has to provide to its employees.

This is precisely you need to drill into heads that employer would be seen as violator.

Rather employer, should on his own, be concerned about it, and should endeavor to avoid getting painted as a violator.

The Payment of Gratuity Act is enacted for the benefit of employees and should remain inclined towards employee.

As per various HR managers in the end employer understands and yields to the demand of employee.

In the meantime obtain the certified or copy of standing orders of the company, and go thru other threads mentioned in previous posts. Some companies have mentioned about applicability of PF etc during sty abroad, in their service rules.

If your efforts do not fetch you any relief, there would always be a lawyer to counsel you and let your lawyer choose the citation if any.

Valuable advice of learned experts/members is sought.