The Payment of Gratuity Act 1972 mandates gratuity as a statutory benefit for Indian employees who complete five or more years of continuous service. For a foreign-owned subsidiary running through actual employees (not contractors), gratuity provisioning is a real cost that needs to be in your CTC structure from day 1 — even though payment only triggers at exit after 5 years.
Applicability
- Establishments with 10+ employees — gratuity applies.
- Continuous service of 5+ years required for entitlement (240 days per year minimum).
- Payable on exit — resignation, retirement, termination (other than for proven misconduct), death, disablement.
- Even contract workers / temporary workers eligible if they meet the service condition.
The formula
Gratuity = (Last drawn monthly Basic + DA) × 15/26 × Number of completed years of service
- Last drawn monthly Basic + DA — the salary at the time of exit.
- 15/26 — represents 15 days' wages for every year worked (26 working days per month assumed).
- Completed years — partial year of 6+ months rounds up; less than 6 months ignored.
Worked example
Engineer with last drawn Basic ₹3,00,000/month, completing 7 years 8 months at exit:
- Last drawn Basic: ₹3,00,000
- Years of service: 8 (7y 8m rounds up)
- Gratuity = 3,00,000 × 15/26 × 8 = ₹13,84,615
- Tax exemption: up to ₹20 lakhs (statutory cap)
- Net gratuity received: ₹13,84,615 (tax-free as within ₹20L cap)
Gratuity provisioning + payment handled
FastLegal's payroll consultant builds monthly gratuity provisioning into your salary structure (~4.81% of Basic), maintains the accrual in your books, and computes / disburses the gratuity at exit. Reflected in your monthly cost report; no surprise at exit.
Tax exemption — up to ₹20 lakhs
Under Section 10(10) of the Income Tax Act, gratuity received by an employee is tax-exempt up to:
- ₹20 lakhs (statutory cap — recently increased from ₹10L).
- Actual gratuity received.
- 15/26 × salary × years (the statutory formula amount).
Whichever is lowest of the three is exempt. Excess (if any) is taxable as salary income at slab rate. For most engineers with Basic under ₹4 lakhs/month and tenure under 12 years, full gratuity is within the exemption.
Provisioning — accounting mechanics
Gratuity is provisioned monthly even though payment happens only at exit (and only if employee completes 5 years):
- Standard provisioning: ~4.81% of Basic per month = (15/26) / 12 × 100
- Provisioning is a P&L expense each month — gratuity provisioning account on the balance sheet builds up.
- Actuarial valuation under Ind AS 19 required for companies (annual) — actuary computes the present value of expected gratuity liability.
- Funding options: pay-as-you-go (most companies) OR pre-fund via LIC group gratuity scheme.
Exit mechanics
- Engineer completes 5+ years of service and exits.
- Final settlement computation includes gratuity per formula.
- Gratuity paid via the F&F settlement (or separately).
- Tax exemption applied automatically by employer up to ₹20L.
- Form 16 reflects the gratuity exemption in the relevant section.
Common operational questions
- What if employee leaves at 4y 240d? Case law treats this as 5 years for gratuity purposes (Madras HC ruling). Most employers honour.
- What about for-cause termination? Gratuity withheld only if the cause involves theft, fraud, or other proven misconduct (defined in Section 4(6)).
- What if employee dies in service before 5 years? Gratuity payable for actual years (no 5-year minimum on death).
- What about NRI returnees? Foreign service doesn't count; Indian service from joining date counts.
Frequently asked questions
Is gratuity payable to foreign nationals working in India?+
Yes — same rules apply. International Workers covered by PF are also covered by gratuity (with the same 5-year service condition).
Should we pre-fund gratuity?+
Pre-funding via LIC group gratuity scheme isolates the liability and earns market returns. Recommended at 50+ headcount with stable team.
What if our employee's service is split across EOR and own subsidiary?+
Continuous service if migration was direct (same effective joining date). Service tenure counts from original join date with EOR. Document the migration as continuous service.
Is gratuity subject to PF deduction?+
No — gratuity is excluded from wages for PF purposes. Statutory contribution applies only to monthly Basic + DA, not to gratuity payment.
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