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Indian Law/gratutiy enquiry


QUESTION: one of my relative is serving in a MNC since Sept. 2007 . he was relocated to their foreign branch on their requirement for 18 months from Sept. 2008 to march 2011 and was on the payroll of their overseas branch . then they recalled  him back to India  from April 2011 . now he is resigning from that co. with due notice from Dec. 2013, will he be eligible for  gratuity .

ANSWER: An employee is entitled to gratuity provided, he has worked for a continuous period of five years.This is inclusive of his tenure anywhere.But even then his total tenure is less than five years.
In view of the above, according to me, in the instant case, he is not entitled to claim gratuity.However, you may consult a service lawyer.

---------- FOLLOW-UP ----------

QUESTION: Thanks for your prompt reply and pleased to get informed that to enable for gratuity , five year of continuous service are inclusive of one's tenure anywhere ( including overseas branch ) as mentioned . but just for more clarity , he has already completed his five years of service by Sept. 2012 and by the time of his relieving he will be completing six and half years of service out of which one and half year is overseas posting ( and on the payroll of overseas branch.)

         Please give your advise possibly quoting some examples / sections of the gratuity law . Also please let us know if there has been a similar case settled by the court along with judgement.

         Thanking you in anticipation .


An employee is any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are expressed or implied and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.

An employee who has rendered not less than five years of service becomes entitled to gratuity on his superannuation or on his retirement or resignation or on his death or disablement. The pre requisite of completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement.

In view of the above,in the instant case, he shall be entltled to claim gratuity provided he has submitted the prescribed application form to his employer within 30 days of his termination of contract.In case the payment is not released within the prescribed time imit, he can lodge a complaint before the concerned ALC & CA.For further details, please consult a suitable lawyer alongwith all supporting documents.He will guide you appropriately.

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Arun Kumar Maitra


Contract Law,Companies Act,Sale of Goods Act,Partnership Act,Negotiable Instument Acts,Constitution of India,Arbitration Act,Consumer Protection Act,Maternity Act,Payment of Gratuity Act,Payment of Bonus Act,Shops & Establishment Act etc.The answer to the grievance of the particular online query depends on the facts of the particular case and law applicable to it.However,my comments relating to the various queries raised through the "All Experts" should not be treated as legal advices and should not at all be relied upon.I do not accept any responsibility for them.They will only give you some ideas about the probable merits of your cases.Ultimate actions/decisions in the matter may please be taken in consultation with the Legal Experts in the relevant fields.My purpose of giving the comments is to increase my own knowledge on the subjects and share it with others.It is purely of academic interest to me. I strongly feel the more knowledge we share,the more we shall be able to learn because there is neither any age nor any end to learning.


I have experience of dealing with matters relating to holdings of board/general meetings,maintenance of statutory registers,filing of necessary returns with the RoC,obtaining licenses for import,replies to Parliament Questions,dealing with the Parliamentary Committees,appearing before various courts to defend my employers,filing affidavits/counter -affidavits,preparing written statements/re-joinder,giving advice to management on complicated legal issues,preparation,drafting and vetting of contracts etc. I have more than 35 years of experiences to deal with the Company Law and Other Commercial Laws of leading Organisations in the country both in Public as well as Private Sectors.

Member,Inst. of Chartered Accountants of India Member,Inst. of Company Secretaries of India; Member,Bar Council of India Member,All India Management Association Member,Delhi Management Association Ex. Vice-Chairman,Durgapore Chapter of the I.C.A.I. Expert ,CA Club India Expert ,Lawyers Club India Expert,AllExperts Ex. Faculty ,I.C.S.I as well as I.C.W.A of India Retd. Co. Secy. & G.M.(Law)/NFL(A Mini-Ratna A Schedule Central P.S.U.),New Delhi Ex.V.P.(Secretarial Dept.),Jaiprakash Associates Ltd. Ex. Co. Secy.,MAMC(A Govt. of India Enterprise),Durgapore



Awards and Honors
Obtained ''A'' Grade Certificate in the Parliamentary Procedure from the Secy. General of Parliament in 1994-95.It was in connection with a training course conducted by the BPE for PSU Executives.

Past/Present Clients
I am presently working as a Company Secretary in Old World Hospitality Pvt. Ltd.located in Delhi.It is engaged in Hospitality Industry.It has Units in India and abroad.It has been given the responsibility to look after operation & Management of ''India Habetat Centre'' located at Lodhi Road,New Delhi.

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