They are not saying anything about you being at a different location of the same company for x years, but instead arguing that you are not eligible because you resigned when outside India? Ask them what if you had resigned say, while on a flight to India, 30,000 Kms above the ground?

I am no expert, but I am sure your company has no defense here. Just contact a local lawyer, or if you are still abroad, ask some of your friends to do this. I am also sure neither the company policy documents nor the Gratuity Act 1972 would support their statement regarding you not being eligible just because you were outside/ resigned when outside.

Best Regards.

No entity can have separate rules for this statutory provision it is purely governed by Gratuity Act and take up the matter accordingly.  Pls note nobody has power to over rule the provisions of statute.  

The gratuity is managed by a Trust of the company? If yes has the company circulated the rules of gratuity? Has the company provided any social security benefit to you in US.

It is believed that all transactions initiated by you and replied by HR as posted by you in this thread are all verbal. The HR shall keep the employee entangled in verbal transactions and subdue and employee usually makes the mistake of refraining from submitting written representation under acknowledgment.

Employee should not limit himself to line management, HR and should not shy from approaching good offices of appointing authority, MD, Chairman, and Company Secretary, in company and Controlling Authority of gratuity o/o Labor Commissioner, courts of law, institution of print and electronic media, Police, …etc, outside the company if the situation warrants it.

Please submit FormI to good office of your appointing authority, under proper acknowledgment. Submit the narration of incidences with HR to HR with date, time, name, designation, dept, address of company personnel and minutes of discussion, all emails, letters, etc. and demand copy of standing orders of the company and ask fee if any to be paid {fee is nominal say Rs.10/} and comment that these have never been displayed and kept in your knowledge domain, employee rule book, service rule book etc. and request to justify the comments of HR. If no one replies escalate to good offices, by email, followed by letter/notice/legal notice…..

Submit the copy of FormI to Controlling Authority of gratuity which may be ALC in your case, under acknowledgment. You can nominate a person who may represent you in India.

Payment of Gratuity Act, 1972

Section: 7
Determination of the amount of gratuity.

 (1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.

(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount gratuity so determined.

(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.

(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify:

Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.]

And then

(4)

(a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.

It is felt that Act is silent on location, where employee works. Your company has not declined because of your place of posting, or duration of period served abroad. It has objected due to resignation…….it has not quoted or cited any rule. Is it really a clause to decline gratuity is the question and that needs an answer.

Valuable advice of learned experts/members is sought.  

The payment of gratuity is an act enacted to benefit the employee and employer should adopt a solution inclined to benefit the employee. In this case employee was asked to move by office order of transfer. Employee moved due to business reasons of employer. Termination or separation is discretion that lies with both employee and employer. It is difficult to believe that employee has to seek transfer back to Head Quarter to resign. Such a rule is unheard of. Employee has remained on the payroll of the company till the date of resignation.

Gossip and rumor can’t be rule.

There is no change in employer. It has remained same. It is not being contested that salary is earned in India or outside India.

As your employer ha stransferred you to another country has it granted any social; security benefit in in UK or the office in UK has paid any PF? You may mention to your employer that you are willing to deposit the PF paid by UK office to Indian PF a/c, thru employer for credit in you’re a/c. Transfer is a service condition and your employer has not contested the regularity of service or continuous service.

Employee deserves to be paid gratuity.

You need to drill sense into the heads.

Kindly update the status in this thread.It shall help many of the fellow colleagues,countrymen.

It is felt that since you were sent abroad on assignment and you resigned company is trying to find its ways and means to punish/harass/cause delays. However in case of gratuity it may not succeed.

The state of Karnataka has ended the exemptions granted to IT/ITES companies from Industrial Employment Standing Orders Act, and some clauses of other Labor laws, w.e.f. 01/04/2012.If your company has not framed its standing orders and got these certified from Certifying Officer in o/o Labor Commissioner, Model Standing Orders shall apply. You can obtain these from State Dept. Labor website. If your company/your last location were in Karnataka you may rake up with company to provide standing orders.

If not you may check the status of exemption for your state.

You may find the info at various links on policies of various employers given below, and attachment useful.

After you have made your self clear you may finalize your strategy and submit FormI to both appointing authority and controlling authority of gratuity, under proper acknowledgment.

Delhi High Court

Prem Sagar Sharma vs Central Warehousing Corporation on 5 May, 1998

“Since the Foreign Service rendered by the petitioner was counted for the purpose of his earning increments in the time scale applicable to the post in the Corporation which the petitioner was holding before the transfer on Foreign Service there is no reasonable basis for denying the same benefit to the petitioner while allowing him to go on voluntary retirement by making ex gratia payment even for the said period.”

Indian social security

For cross-border assignments

October 2011

Page 13

Appendix A

“Social security agreements”: UK does not feature in List of countries with which agreement is operational. However you may check at your end. As per a news publication in Indian Express:

https://www.indianexpress.com/news/citing-fund-crunch-uk-says-no-to-social-security-pact/765462/1

"In a communication sent to Indian High Commissioner to UK Nalin Surie last month, the British government has said after due deliberations within the British Cabinet, a decision has been taken not to go ahead with the Social Security Agreement with India.

Such an agreement with the UK could protect the interests of Indian professionals working there by securing exemption from social security contribution in case of short-term contracts (provided the worker is covered under the Indian social security system and continues to pay his contribution to the Indian system during the period of contract). The agreement could also help in exportability of benefits in case of relocation to India or any other country after having made social security contribution during a longer-term employment."

If your company has issued PF number to you while in India, you may check whether PF contributions were deposited in you’re a/c while you were in UK.PF dept. has made the system online or you may peruse RTI route.

https://www.persmin.nic.in/Archive/Acts_Rules_Archive/AISRules_Archive/AIS_Archive/rule1.htm

ALL INDIA SERVICES (DEATH-CUM-RETIREMENT BENEFITS) RULES, 1958

8. Qualifying service.
8(7) Foreign service rendered by a member of the Service shall count as qualifying service provided that contributions towards the cost of retirement benefits of the member of the Service, at such rates as the Central Government may prescribe from time to time have been paid either by the foreign employer, or, failing that, by the member of the Service himself, in respect of the entire period of foreign service, unless the payment of contributions have been waived by Government.

https://www.indianrailways.gov.in/railwayboard//uploads/codesmanual/est-code-I/estbl-vol1-chap10-p01-p12.htm

 1011. Contribution during deputation or foreign service. --When the services of a railway servant are lent to another Department/Ministry of Government or a State Government or to a foreign employer, a contribution towards Government contribution to provident fund and gratuity at the rate specified in paragraph 1255 of the Indian Railway General Code, Vol. I shall be levied during the period of loan, from the Department/Ministry of Government or the State Government or the foreign employer of the railway servant concerned as may be settled in each case.  

Note. In cases where, instead of contribution for leave salary, the incidence  of leave salary is regulated by rule 829 of the Indian Railway Financial Code, Vol. I, the gratuity contribution shall be levied at 1/24th of the total of the pay in foreign service plus contribution that would have been otherwise payable on account of leave salary.  

https://www.bcetgsp.ac.in/chapter8.php

Section 3. Service Qualifying for Penson

8.3.6.
Following periods qualify for pension:-

ix.  Period spent on foreign service/assignment in or outside India if contributions towards pension are paid to the College by the foreign employer or the employee himself.

https://www.pwc.com/in/en/assets/pdfs/services/social_security_in_india_an_overview_v9.pdf

https://www.lawyersclubindia.com/forum/Gratuity-eligibility-59745.asp#.UG20vmcWrts

https://informationcenter.co.in/index1.php?page_id=186

https://pensionersportal.gov.in/faq-pension.asp

https://rbidocs.rbi.org.in/rdocs/content/pdfs/I70974.pdf

You need to drill sense into the heads.

Kindly update the status in this thread.It shall help many of the fellow colleagues,countrymen.

Thanks for your suggestions on my concern.

Update on my case:

I have been contacting my ex- employer on gratuity. However, still no luck. HR's are saying “we are very near to resolve your query by some policy routes”.

It seems that they want to change some company policy to retrofit my case.

Please answer my following queries:

Could someone help me to understand, if I prefer to send a legal notice to my ex-employer, Do I need to come to India for case hearings?

I mean, If I need to come to India for it then it may cost me more than I need from them as gratuity.

Can I ask my ex-employer to pay interest on my gratuity and all the expenses which I will bear to get it?

Thanks

Sachin

You have posted that:

--“HR's are saying “we are very near to resolve your query by some policy routes”.

Is this statement is verbal or in writing? If it is in writing you may have a reason to feel relieved.

You should submit your representation in writing and submit FormI. Later you may need to condone the delay and record in writing shall be helpful { if the situation arises}.

--“Could someone help me to understand, if I prefer to send a legal notice to my ex-employer, Do I need to come to India for case hearings?”

It is felt that your company may not like to be entangled in a law suit in matter pertaining to statutory rights of employee.

It is also felt that your lawyer/counsel/representative may be able to represent you on the basis of power of attorney.

--“Can I ask my ex-employer to pay interest on my gratuity and all the expenses which I will bear to get it?”

You may go thru

Section: 7
Determination of the amount of gratuity.

(3) and (3A) and (4) (a) which are already given in this thread.

Your employer has raised a dispute as it has declined to pay. If you are declared eligible for gratuity by your employer thru its policy matter as cited by you, you can claim interest. It is felt that it was 10%. You may check on this.

submit FormI to appointing authority, under proper acknowledgment, on your own or thru a person duly authorized by you.

Section: 7
Determination of the amount of gratuity.

(1) A person who is eligible for payment of gratuity under this Act or any person authorized, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.

Valuable advice of learned experts/members is sought.

Finally I have got some answer from my company on my case. However, I need some help to my myself understand if they have done justice.

My company has refused to pay gratuity and reasons are given below via email. Could somebody help me to understand if my company is right in their decision?

Below is my HR’s response in refusal of Gratuity:-

Specific to the gratuity policy, the following scenario would apply as appropriate.

During your stay with <Company Name> India, if you have completed continuous 5 years in India entity and in India payroll, such period of India services will be inclusive and would make for and become eligible for the social security payment under gratuity and if any break in India services, whilst, during such break in service period, such  availement of social security benefit in non-India geography will need to be construed as the appropriate benefit  by respective <Company Name> entity abroad.

Hence this may be read as since no India evidence to continuity of services beyond 5 years and no India payroll being processed for, such break in period will not qualify or make one eligible for any India social security benefit for such period.

In line with the above, we find that your India employment and payroll period is less than continuous 5 years of service and hence do would not qualify for gratuity.

Any earlier communication provided to you in this regard to be construed and read in rationale as above.

Following are points I have gathered from my offer letter (Letter given at joining):-

1)      In Benefits section of offer letter, It has written “Gratuity, on separation after 5 years of continuous service, payable as per Payment of Gratuity Act”.

2)      On Annexure B, Under “Place of work” it’s written, “You will be in employment at the Company’s office or at the Company’s Customer location, as required”.

[ When I have resigned, I was at the my company’s customer location in United Kingdom].

3)  My Releasing letter has my service length which is more than five years with my Company.

Thanks

You have posted that:

{A}--“2) On Annexure B, Under “Place of work” it’s written, “You will be in employment at the Company’s office or at the Company’s Customer location, as required”.

“3) My Releasing letter has my service length which is more than five years with my Company.”

And [ When I have resigned, I was at the my company’s customer location in United Kingdom].”

Thus you have answered your own query.

It is felt that before this resignation you have not ever resigned from the payroll of the company.

In your first post you have mentioned that “I had been transferred (intra company with same employee id) from India to UK after 3 years of my service. I have resigned in UK 6 months ago after 5.8  years of my service.”

You must be having the transfer letter in your possession.

At the time of appointment in India did the company mention gratuity component in your CTC sheet?

If yes you may rake up the issue for these 3 years.

In the transfer letter has the company mentioned about CTC abroad and has it attached CTC sheet and has it included gratuity component in this CTC sheet?

If yes you may rake up the issue of gratuity abroad as well.

{B}

The email of HR seems to be the copies draft of legal opinion of legal cell/lawyer/law firm contacted/contracted by your company.

“whilst, during such break in service period, such availement of social security benefit in non-India geography will need to be construed as the appropriate benefit by respective <Company Name> entity abroad.

And

 “Hence this may be read as since no India evidence to continuity of services beyond 5 years and no India payroll being processed for, such break in period will not qualify or make one eligible for any India social security benefit for such period.

Have you availed any social security benefit in non-India geography from respective <Company Name> entity abroad?

If you have not you may submit a bold response that you have not.

It is already highlighted in previous posts that probably India did not have any social security agreement with UK.

And

If foreign employer {Client Location} has not paid any social security benefit you have the merit.

Did you offer to pay the employee’s subscripttion of PF for the entire period abroad?

It shall be approrpiate to consult a lawyer well versed with cases of employees serving abroad.

Valuable advice of learned experts/members is sought.

Thanks experts for showing interest in my case.

Update:

It took long hard time but finally ex-employer has agreed to pay me my gratuity. However, They have calculated the gratuity based of the basic salary which I had got in India in Aug 2009.

For your background knowledge, I have worked 3 years in India (from 2006-2009) and 3 years in UK(from 2009-2012). My ex-employer used the basic salary which I had last drawn in India and calculated gratuity for first 3 years and then doubled the sum to make it for 6 years.

After I was transferred from India to UK, I was promoted once. Based on that I believe my basic should be considered higher to calculated gratuity.

Could somebody confirm if the calculation of gratuity (based on Basic of year 2009) which ex-employer did is correct or not?

If not, Could you please suggest me my next action steps to get the right gratuity amount?

Also, As it's been a year since I left my company, Can I also ask them for interest on my gratuity to be paid?

Many Thanks

Sachin

 We are delighted to note that you have persisted and finally company has agreed to pay the Gratuity for Foreign Service.

Employee should apply exceptional levels of persistence, persuasion, reasoning, negotiation skills and resolve the situation in his favor.

 Collect the payment under written protest and without issuing any acceptance of treating it correct and final.

 Gratuity Calculation Formulae:

{(Basic + DA)/26*15}* No. of Years

Here Basic + DA are as per last drawn salary. Employee may claim VDA if applicable.

Section: 4
Payment of gratuity.

(2)

Explanation: In the case of a monthly rated employee, the fifteen days wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.

For Rate of Interest on delayed payment:

Section: 7
Determination of the amount of gratuity.

(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify:

{ It is felt that the rate of Interest was @10%}

{For representations employee can designate authorize any person in writing :}

(1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.

If company has obtained Compulsory Insurance for the Payment of Gratuity from LIC

As per Section: 4A Compulsory insurance

You may demand the copy of payment certificate and cheque issued by LIC.

You may also demand policy number issued by LIC, Log in id and thus you can check on line as well. P&S dept of LIC which has issued the policy can also provide the details.

LIC is under purview of RTI. YOU may adopt RTI route as well.

You can raise a dispute with company and Controlling Authority of Gratuity as per

Section:7 Determination of the amount of gratuity: 4 (a) (b)

At an appropriate time you may to drill sense into the heads and send chills and shivers down the spine put emphasis on word “ WHOEVER” in Section 9:

Section: 9
Penalties.

(1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.

(2) An employer who contravenes, or makes default in complying with, any of the provisions of this Act or any rule or order made there under shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year, or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both:

And

Quote

Section: 8
Recovery of gratuity.

 Finally

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.

Thus employer can make up for the amounts which have not been paid to employee, and also can pay above the ceiling of Rs.10Lacs.

If Company has a different Superannuation policy also, then the company should pay the amount of Superannuation as well in addition to Gratuity.