By Dezan Shira & Associates
Editor’s Note: This article was originally published on June 4, 2013, and has been updated as of November 23, 2016, to include the latest gratuity regulations.
Gratuity is a lump sum that a company pays when an employee leaves an organization, and is one of the many retirement benefits offered by a company to an employee.
In India, the basic requirements for gratuity are set out under the Payment of Gratuity Act 1971. An employer may also choose to pay gratuity outside of that which is required by this Act.
In this article, we discuss gratuity in terms of:
- Tax exemption;
- Payment; and
The Payment of Gratuity Act 1971 (the Act) applies to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments with ten or more employees. Gratuity is fully paid by the employer, and no part comes from an employee’s salary.
To fall under the Act and qualify for gratuity, an employee needs to have at least five full years of service with the current employer, except in the event that an employee passes away or is rendered disabled due to accident or illness, in which case gratuity must be paid.
Gratuity is paid when an employee:
- Is eligible for superannuation;
- Resigns; or
- Passes away or is rendered disabled due to accident or illness (if an employee passes away, gratuity will be paid to the employee’s nominee).
Gratuity = Last Drawn Salary × 15/26 × No. of Years of Service
- The ratio 15/26 represents 15 days out of 26 working days in a month.
- Last drawn salary = Basic Salary + Dearness Allowance.
- Years of Service are rounded down to the nearest full year. For example, if the employee has a total service of 20 years, 10 months and 25 days, only 20 years will be factored into the calculation.
Gratuity received under the Act is exempt from taxation to the extent that it does not exceed 15 days’ salary for every completed year of service calculated on the last drawn salary (subject to a maximum of US$14,655 or Rs 10 lakhs).
Any other gratuity is exempt to the extent that it does not exceed one half-month salary for each year of completed service calculated on the basis of average salary for 10 immediately preceding months (subject to a maximum of US$14,655). The upper limit of US$14,655 applies to the aggregate of gratuity received from one or more employers in the same or different years.
The employer shall arrange to pay the amount of gratuity within 30 days from the date it is billed to the person to whom the gratuity is allocated.
If the amount of gratuity payable under the section is not paid by the employer within the period specified, he will have to pay simple interest on it from the date on which the gratuity becomes payable at the rate not exceeding the rate stipulated by the Central Government.
Gratuity should be paid in cash, or if so desired by the payee, by demand draft or bank cheque to the eligible employee, nominee or legal heir.
The gratuity payable to an employee shall be wholly forfeited if:
- The service of such employee has been terminated for his or her lawless or disorderly conduct or any other act of violence on his or her part; or
- The service of such employee is terminated for any act which constitutes an offense involving moral turpitude, provided that such offense is committed by him or her in the course of his or her employment.
In order to forfeit gratuity of an employee, there must be a termination order containing charges as established to the effect that the employee was guilty of any of the aforesaid misconducts. In one case, it has been held that in the absence of a termination order containing any of the above allegations, the gratuity of an employee cannot be forfeited.
Asia Briefing Ltd. is a subsidiary of Dezan Shira & Associates. Dezan Shira is a specialist foreign direct investment practice, providing corporate establishment, business advisory, tax advisory and compliance, accounting, payroll, due diligence and financial review services to multinationals investing in China, Hong Kong, India, Vietnam, Singapore and the rest of ASEAN. For further information, please email firstname.lastname@example.org or visit www.dezshira.com.
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