THE PAYMENT OF GRATUTY ACT, 1972
1. Short title, extent, application and
commencement
2. Definitions.
6. Nomination.
7. Determination of the amount of gratuity.
7A. Inspectors.
9. Penalties.
10. Exemption
of employer from liability in certain cases.
12. Protection
of action taken in good faith.
14. Act
to override other enactment, etc.
THE PAYMENT OF GRATUITY ACT, 1972
(39 of 1972)
[21st August, 1972.]
An Act to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments and for matters connected therewith or incidental thereto.
Be it enacted by Parliament in the Twenty-third Year of the Republic of India as follows:
l.
Short title, extent, application and commencement. –
(1) This Act may be called the Payment of
Gratuity Act, 1972.
(2) It extends to the whole of India :
Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.
(3) It shall apply to -
(a) Every
factory, mine, oilfield, plantation, port and railway company;
(b) Every
shop or establishment within the meaning of any law for the time being in force
in relation to shops and establishments in a State, in which ten or more
persons are employed, or were employed, on any day of the preceding twelve
months;
(c) Such
other establishments or class of establishments, in which ten or more employees
are employed, or were employed, on any day of the preceding twelve months, as
the Central Government may, by notification, specify in this behalf.
1(3A) A shop or establishment
to which this Act has become applicable shall continue to be governed by this
Act notwithstanding that the number of persons employed therein at any time after
it has becomes applicable falls below ten.]
(4) It shall come into force on such date2 as the Central Government may, by
notification, appoint.
1. Ins. by Act No. 26 of 1984, s. 2.
2. 16th September, 1972, vide Notification No. S.O. 601(E),
dated 16-9-1972, see Gazette of India, Extraordinary, 1972, Part 11, section 3,
sub-section (ii), page 1641.
2. Definitions.
-In this
Act, unless the context otherwise requires,-
(a) “Appropriate Government”
means, -
(i) In relation to an establishment-
(a) Belonging
to, or under the control of, the central Government,
(b) Having
branches in more than one State,
(c) Of a
factory belonging to, or under the control of, the Central Government,
(d) Of a
major port, oilfield, railway or mine company, the Central Government,
(ii) In any other case, the State Government
(b) “Completed year of service”, means
continuous service for one year;
1[(c) “Continuous service”
means continuous service as defined in section 2A; I
(d) “Controlling
authority” means an authority appointed by the appropriate Government under
section 3;
(e) “Employee” means any person (other than an
apprentice) employed on wages, 2 [***] 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 express or implied, 3[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.]
4 [***]
(f) “Employer” means, in relation to any establishment, factory,
mine, oilfield, plantation, port, Railway Company or shop-
(i) Belonging
to, or under the control of, the Central Government or State Government, a
person or authority appointed by the appropriate Government for the supervision
and control of employees, or where no person or authority has been so
appointed, the head of the Ministry of Department concerned,
(ii) Belonging
to, or under the control of, any local authority, the person appointed by such
authority for the supervision and control of employees or where no person has
been so appointed, the chief executive officer of the local authority,
(iii) In any other case, the
person, who, or the authority which, has the ultimate control over the affairs of
the establishment, factory, mine, oilfield, plantation, port, railway company
or shop, and where the said affairs are entrusted to any other person, whether
called a manager, managing director or by any other name, such person;
(g) “Factory”
has, the meaning assigned to it in clause (n7)
of section 2 of the Factories Act, 1948 (63 of 1948);
(h) “Family”, in relation to an employee,
shall be deemed to consist of-
(i) In the case of a male employee, himself, his wife, his children, whether married or unmarried, his dependent parents 5[and the dependent parents of his wife and the widow] and children of his predeceased son, if any,
(ii) In the case of a female employee, herself,
her husband, her children, whether married or unmarried, her dependent parents
and the dependent parents of her husband and the widow and children of her
predeceased son, if any:
6 [*****]
Explanation. -Where the personal law of an
employee permits the adoption by him of a child, any child lawfully adopted by
him shall be deemed to be included in his family, and where a child of an
employee has been adopted by another person and such adoption is, under the
personal law of the person making such adoption, lawful, such child shall be
deemed to be excluded from the family of the employee;
(i) “Major port' has the meaning assigned to it in clause (8) of section 3 of the Indian Ports Act, 1908 (15 of 1908);
(ii) “Mine” has the meaning assigned to it in
clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952)
;
(k) “Notification” means a notification
published in the Official Gazette;
(l) “Oilfield” has the meaning as signed to
it in clause (e)of section3 of the Oilfields (Regulation and Development) Act,
1948 (53 of 1948) ;
(m) “Plantation” has the meaning assigned to it
in clause 0 of section 2 of the Plantations Labour Act, 1951 (69 of 1951);
(n) “Port”
has the meaning assigned to it in clause (4) of section 3 of the Indian Ports
Act, 1908 (15 of 1908);
(o) “Prescribed”
means prescribed by rules made under this Act;
(p) “Railway company” has the meaning assigned
to it in clause (5) of section 3 of the Indian Railways Act, 1890 (9 of 1890);
(q) “Retirement”
means termination of the service of an employee otherwise than on
Superannuation;
7[(r) “Superannuation”, in
relation to an employee, means the attainment by the employee of such age as is
fixed in the contract or conditions of service as the age on the attainment of
which the employer shall vacate the employments
(s) “Wages”
means all emoluments which are earned by an employee while on duty or on leave
in accordance with the terms and conditions of his employment and which are
paid or are payable to him in cash and includes dearness allowance but does not
include any bonus, commission, house rent allowance, overtime wages and any
other allowance.
1. Subs. by Act No. 26 of 1984, s. 3, for
cl. (c) (w.e.f. 11-2-1981).
2. Omitted by Act No. 34 of 1994 (w.e.f.
24-5-1994).
3. Subs. by Act No. 25 of 1984, s. 2, for
certain words (w.e.f. 1-7-1984).
4. Explanation omitted by Act No. 34 of 1994
(w.e.f. 24-5-1994).
5. Subs. by Act No. 22 of 1987, s. 2, for “and
the widow” (w.e.f. 1-10-1987).
6. The proviso omitted by s. 2, ibid. (w.e.f. 1-10-1987).
7. Subs. by Act No. 25 of 1984, s. 2, for cl.
(r) (w.e.f. 1-7-1984).
1[2A. Continuous service. -For the purposes of this
Act, -
(1) An employee shall be said to be in
continuous service for a period if
lie has, for that period, been in uninterrupted service, including service
which may be interrupted on account of sickness, accident, leave, absence from
duty without leave (not being absence in respect of which an order 2 ***
treating the absence as break in service has been passed in accordance with the
standing orders, rules or regulations governing the employees of the
establishment), layoffs strike or a lock-out or cessation of work not due to
any fault of the employee, whether such uninterrupted or interrupted service
was rendered before or after the commencement of this Act;
(2) Where an employee (not being an employee
employed in a seasonal establishment) is not in continuous service within the
meaning of clause (1), for any period of one year or six months, he shall be
deemed to be in continuous service under the employer-
(a) For the said period of one
year, if the employee during the period of twelve calendar months preceding the
date with reference to which calculation is to be made, has actually worked
under the employer for not less than-
(i) One hundred and ninety day”, in the case
of an employee employed below the ground in a mine or in an establishment which
works for less than six days in a week; and
(ii) Two hundred and forty days,
in any other case;
(b) For the said period of six months, if the employee during the
period of six calendar months preceding the date with reference to which the
calculation is to be made, has actually worked under the employer for not less
than-
(i) Ninety-five days, in the case of an
employee employed below the ground in a mine or in an establishment which
work,-, for less than six days in a week; and
(ii) One hundred and twenty days,
in any other case.
3[Explanation. -For the purposes of clause (2),
the number of days on which an employee as actually worked under an employer,
shall include the days on which-
(i) He has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;
(ii) He has been on leave with full wages,
earned in the previous year;
(iii) He has been absent due to temporary
disablement caused by accident arising out of and in the course of his
employment; and
(iv) In the case of a female, she has been on maternity
leave; so, however, that the total period of such maternity leave does not
exceed twelve weeks.
(3) Where an employee, employed in a seasonal
establishment, is not in continuous service within the meaning of clause (1),
for any period of one year or six months, he shall be deemed to be in
continuous service under the employer for such period if he has actually worked
for not less than seventy five per cent, of the number of days on which the
establishment was in operation during such period.]
1. Ins, by Act No. 26 of 1984, s. 4 (w.e.f.
11-2-1981).
2. The words “imposing a punishment or penalty omitted by Act No.
22of 1997, s. 3 (w.e.f. 1-10-1987).
3. Added by Act No., 22 of 1987, s. 3
(w.e.f. 1.10.1987).
3. Controlling authority. -The Appropriate Government may, by notification, appoint any officer to
be a controlling authority, who shall be responsible for the administration of
this Act and different authorities may be appointed for different areas.
(1) Gratuity shall be payable to an employee on the termination of his
employment after he has rendered continuous service for not less than five
years, -
(a) On his Superannuation, or
(b) On his retirement or
resignation, or
(c) On his death or disablement due to accident or disease:
Provided that the 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:
1 Provided further that in the
case of death of the employee, gratuity payable to him shall be paid to his
nominee or, if no nomination has been made, to his heirs, and where any such
nominees or heirs is a minor, the share of such minor, shall be deposited with
the controlling authority who shall invest the same for the benefit of such
minor in such bank or other financial institution, as may be prescribed, until
such minor attains majority.
Explanation. - For the purposes of this
section, disablement means such disablement as incapacitates an employee for
the work which he was capable of performing before the accident or disease
resulting in such disablement.
(2) For every completed year of service or
part thereof in excess of six months, the employer shall pay gratuity to an
employee at the rate of fifteen days wages based on the rate of wages last
drawn by the employee concerned:
Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account:
Provided further that in the
case of 2 [an
employee who is employed in a seasonal establishment and who is not so employed
throughout the year], the employer shall pay the gratuity at the rate of seven
days' wages for each season.
3 [ 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.
(3) The amount of gratuity payable to an
employee shall not exceed 4 [three lakhs and fifty thousand] rupees.
(4) For the purpose of computing the gratuity
payable to an employee who is employed, after his disablement, on reduced
wages, his wages for the period preceding his disablement shall be taken to be
the wages received by him during that period, and his wages for the period
subsequent to his disablement shall be taken to be the wages as so reduced.
(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.
(6) Notwithstanding anything contained in
sub-section
(a) The
gratuity of an employee, whose services have been terminated for any act,
wilful omission or negligence causing any damage or loss to, or destruction of,
property belonging to the employer, shall be forfeited to the extent of the damage
or loss so caused;
(b) The
gratuity payable to an employee 5[may
be wholly or partially forfeited]-
(i) If the
services of such employee have been terminated for his riotous or disorderly
conduct or any other act of violence on his part, or
(ii) If the
services of such employee have been terminated for any act which constitutes an
offence involving moral turpitude, provided that such offence is committed by
him in the course of his employment.
6 [***]
1. Subs. by Act No. 22 of 1987, s. 4 (w.e.f.
2-2-1991) vide S.O. 402 dt 22-1-1991.
Published in Gazette of India Pt. 11, s. 3(ii) dated 2-2-1991.
2. Subs. by s- 3, ibid. For “an employee employed in a seasonal establishment”
(w.e.f. 1-7 1984).
3. Ins. by Act. No. 22 of 1987, s. 4 (w.e.f. 1-10-1987).
4. Subs. by Act 11 of 1998, s. 2, for “one
lakh” (w.e.f. 24-9-1997).
5. Subs. by Act No. 25 of 1984, s. 3,
for shall be wholly forfeited” (w.e.f.
1-7-1984).
6. Sub-section 7 omitted by Act No.34 of
l994(w.e.f.24-5-1994).
1[4A. Compulsory insurance. –
(1) With effect from such date as may be
notified by the appropriate Government in this behalf, every employer, other
than an employer or an establishment belonging to, or under the control of, the
Central Government or a State Government, shall, subject to the provisions of
sub-section (2), obtain an insurance in the manner prescribed, for his
liability for payment towards the gratuity under this Act, from the Life
Insurance Corporation of India established under the Life Insurance Corporation
of India Act, 1956 (31 of 1956) or any other prescribed insurer:
Provided that different dates may be appointed for different establishments or class of establishments or for different areas.
(2) The appropriate Government may, subject to
such conditions as may be prescribed, exempt every employer who had already
established an approved gratuity fund in respect of his employees and who
desires to continue such arrangement, and every employer employing five hundred
or more persons who establishes an approved gratuity fund in the manner
prescribed from the provisions of sub-section (1).
(3) For the purpose of effectively
implementing the provisions of this section, every employer shall within such
time as may be prescribed get his establishment registered with the controlling
authority in the prescribed manner and no employer shall be registered under
the provisions of this section unless he has taken an insurance referred to in
sub-section (1) or has established an
approved gratuity fund referred to in sub-section (2).
(4) The appropriate Government may, by
notification, make rules to give effect to the provisions of this section and
such rules may provide for the composition of the Board of Trustees of the
approved gratuity fund and for the recovery by the controlling authority of the
amount of the gratuity payable to an employee from the Life Insurance
Corporation of India or any other insurer with whom an insurance has been taken
under sub-section (1), or as the case may be, the Board of Trustees of the
approved gratuity fund.
(5) Where an employer fails to make any
payment by way of premium to the insurance referred to in sub-section (1) or by
way of contribution to an approved gratuity fund referred to in sub-section
(2), he shall be liable to pay the amount of gratuity due under this Act
(including interest, if any, for delayed payments) forthwith to the controlling
authority.
(6) Whoever contravenes the provisions of
sub-section (5) shall be punishable with fine which may extend to ten thousand
rupees and in the case of a continuing offence with a further fine, which may
extend to one thousand rupees for each day during which the offence continues.
Explanation. -In this section, “approved
gratuity fund” shall have the same meaning as in clause (5) of section 2 of the
Income-tax Act, 1961 (43 of 1961).
1. Ins. by Act No. 22 of 1987, s. 5 (w.e.f.
date to be notified).
1[(1)] The appropriate
Government may, by notification, and subject to such conditions as may be
specified in the notification, exempt any establishment, factory, mine,
oilfield, plantation, port, railway company or shop to which this Act applies
from the operation of the provisions of this Act if, in the opinion of the
appropriate Government, the employees in such establishment, factory, mine,
oilfield, plantation, port, railway company or shop are in receipt of gratuity
or pensionary benefits not less favourable than the benefits conferred under
this Act.
2 [(2)] The appropriate
Government may, by notification and subject to such conditions as may be
specified in the notification, exempt any employee or class of employees
employed in any establishment, factory, mine, oilfield, plantation, port,
railway company or shop to which this Act applies from the operation of the
provisions of this Act, if, in the opinion of the appropriate Government, such
employee or class of employees are in receipt of gratuity or pensionary
benefits not less favourable than the benefits conferred under this Act.]
3[(3) A notification issued
under sub-section (1) or sub-section (2) may be issued retrospectively a date
not earlier than the date of commencement of this Act, but no such notification
shall be issued so as to prejudicially affect the interests of any person.]
1. S. 5 renumbered as sub-section (1)
thereof by Act No. 26 of 1984, s.5.
2. Ins.
by s. 5, ibid.
3. Ins. byActNo.22 of 1987,s.6
(w.e.f.1-10-1987).
(1) Each employee, who has completed one year of
service, shall make, within such time, in such form and in such manner, as may
be prescribed, nomination for the purpose of the second proviso to subsection
(1) of section 4.
(2) An employee may, in his nomination,
distribute the amount of gratuity payable to him under this Act amongst more
than one nominee.
(3) If an employee has a family at
the time of making a nomination, the nomination shall be made in favour of one
or more members of his family, and any nomination made by such employee in
favour of a person who is not a member of his family shall be void.
(4) If at the time of making a
nomination the employee has no family, the nomination may be made in favour of
any person or persons but if the employee subsequently acquires a family, such
nomination shall forthwith become invalid and the employee shall make within
such time as may be prescribed, a fresh nomination in favour of one or more
members of his family.
(5) A nomination may, subject to the
provisions of sub-sections(3) and (4), be modified by an employee at any time,
after giving to his employer a written notice in such form and in such manner
as may be prescribed, of his intention to do so.
(6) If a nominee predeceases the
employee, the interest of the nominee shall revert to the employee who shall
make a fresh nomination, in the prescribed form, in respect of such interest.
(7) Every nomination, fresh nomination or
alteration of nomination, as the case may be, shall be sent by the employee to
his employer, who shall keep the same in his safe custody.
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 (7) has been
made or not, determine the amount of gratuity and give notice in writing to the
person to whom them gratuity is payable and also to the controlling authority
specifying the amount of gratuity so determined.
1 [(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.]
(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.
2 * * * *
3 [(b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.]
4[(c) The controlling authority
shall, after due inquiry and after giving the parties to the dispute a
reasonable opportunity of being heard, determine the matter or matters in
dispute and if, as a result of such inquiry any amount is found to be payable
to the employee, the controlling authority shall direct the employer to pay
such amount or, as the case maybe, such amount as reduced by the amount already
deposited by the employer.]
5[(d) The controlling authority
shall pay the amount deposited, including the excess amount, if any, deposited
by the employer, to the person entitled thereto.
5[(e) As
soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit-
(i) To the applicant where he is the
employee; or
(ii) Where the applicant is not the employee, to the 6[nominee or, as the
case may be, the guardian of such nominee or] heir of the employee if the controlling
authority is satisfied that there is no dispute as to the right of the
applicant to receive the amount of gratuity.
(5) For the purpose of conducting an inquiry under
sub-section (4), the controlling authority shall have the same powers as are
vested in a court, while trying a suit, under the Code of Civil Procedure, 1908
(5 of 1908), in respect of the following matters, namely:-
(a) Enforcing the attendance of any person or
examining him on oath;
(b) Requiring the discovery and production of
documents;
(c) Receiving evidence on affidavits;
(d) Issuing commissions for the examination of
witnesses.
(6) Any inquiry under this section shall be a
judicial proceeding within the meaning of sections 193 and 228, and for the
purpose of section 196, of the Indian Penal Code (45 of 1860).
(7) Any person aggrieved by an order under
sub-section (4) may, within sixty days from the date of the receipt of the
order, prefer an appeal to the appropriate Government or such other authority as
may be specified by the appropriate Government in this behalf:
Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days:
7[Provided further that no
appeal by an employer shall be admitted unless at the time of preferring the
appeal, the appellant either produces a certificate of the controlling
authority to the effect that the appellant has deposited with him an amount
equal to the amount of gratuity required to be deposited under subsection (4), or deposits with the appellate
authority such amount.]
(8) The appropriate Government
or the appellate authority, as the case maybe, may, after giving the parties to
the appeal a reasonable opportunity of being heard, confirm, modify or reverse
the decision of the controlling authority.
1. Subs.
by Act No. 22 of 1987, s. 7, for sub-section
(3) (w.e.f. 1-10-1987).
2. The
Explanation omitted by Act No. 25 of 1984, s. 4 (w.e.f. 1-7-1984).
3. Ins. by s. 4, ibid. (w.e.f. 1-7-1984).
4. Subs. by Act No. 25 of 1984, s. 4, for
cl. (c) as re-lettered by that section (w.e.f. 1-7-1984).
5. Cls.
(c) and (d) re-lettered as cis. (d) and (e) by s. 4, ibid., (w.e.f. 1-7-1984).
6. Subs. by s. 4, ibid., for “nominee or” (w.e.f. 1-7-1984).
7. Ins. by Act No. 25 of 1984, s. 4 (w.e.f.
1.7.1984).
1 [7A. Inspectors. –
(1) The appropriate Government may, by notification, appoint as many
Inspectors, as it deems fit, for the purposes of this Act.
(2) The appropriate Government may, by general
or special order, define the area to which the authority of an Inspector so
appointed shall extend and where two or more Inspectors are appointed for the
same area, also provide, by such order, for the distribution or allocation of
work to be performed by them under this Act.
(3) Every Inspector shall be deemed to be a public
servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).
1. Ins. by Act No.25 of l984,
s.5(w.e.f.1-7-1984).
(1) Subject to any rules made by the appropriate
Government in this behalf, an Inspector may, for the purpose of ascertaining
whether any of the provisions of this Act or the conditions, if any, of any
exemption granted thereunder, have been complied with, exercise all or any of
the following powers, namely:-
(a) Require
an employer to furnish such information as he may consider necessary;
(b) Enter and
inspect, at all reasonable hours, with such assistants (if any), being persons
in the service of the Government or local or any public authority, as he thinks
fit, any premises of or place in any factory, mine, oilfield, plantation, port,
railway company, shop or other establishment to which this Act, applies, for
the purpose of examining any register, record or notice or other document
required to be kept or exhibited under this Act o- the rules made thereunder,
or otherwise kept or exhibited in relation to the employment of any person or
the payment of gratuity to the employees, and require the production thereof
for inspection;
(c) Examine
with respect to any matter relevant to any of the purposes aforesaid, the
employer or any person whom lie finds in such premises or place and who, he has
reasonable cause to believe, is an employee employed therein;
(d) Make
copies of, or take extracts from, any
register, record, notice or other document, as he may consider relevant, and
where he has reason to believe that any offence under this Act has been
committed by an employer, search and seize with such assistance as he may think
fit, such register, record, notice or other document as he may consider
relevant in respect of that offence;
(e) Exercise such other powers as may be prescribed.
(2) Any person required to produce any
register, record, notice or other document or to give any information by an
Inspector under sub-section (7) shall be deemed to be legally bound to do so
within the meaning of sections 175 and 176 of the Indian Penal Code (45 of
1860).
(3) The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) shall so far as maybe, apply to any search or seizure
under this section as they apply to any search or seizure made under the
authority of a warrant issued under section 94 of that Code.]
8. Recovery of gratuity.
-If the
amount of gratuity payable under this Act is not paid by the employer, within the
prescribed time, to the person entitled thereto, the controlling authority
shall, on an application made to it in this behalf by the aggrieved person,
issue a certificate for that amount to the Collector, who shall recover the
same, together with compound interest thereon 1[at
such rate as the Central Government may, by notification, specify], from the
date of expiry of the prescribed time, as arrears
of land revenue and pay the same to the person entitled thereto.
2[Provided that the controlling
authority shall, before issuing a certificate under this section, give the
employer a reasonable opportunity of showing cause against the issue of such
certificate:
Provided further that the amount of interest payable under this section shall, in no case exceed the amount of gratuity payable under this Act.]
1. Subs. by Act No. 22 of 1987, s. 8, for “at
the rate of nine per cent per annum” (w.e.f. 1-10-1987).
2.
Added by s. 8, ibid. (w.e.f. 1-10-1987).
(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 1[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 thereunder shall be punishable with imprisonment for a term 2[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]:
Provided that where the
offence relates to non-payment of any gratuity payable under this Act, the
employer shall be punishable with imprisonment for a term which shall not be less than six months but which may
extend to two years] unless the court trying the offence, for reasons to be
recorded by it in writing, is of opinion that a lesser term of imprisonment or
the imposition of a fine would meet
the ends of justice.
10. Exemption of employer from liability in
certain cases. -Where
an employer is charged with an offence punishable under this Act, he shall be
entitled, upon complaint duly made by him and on giving to the complainant not
less than three clear day’s notice in writing of his intention to do so, to
have any other person whom he charges as the actual offender brought before the
court at the time appointed for hearing the charge; and if, after the
commission of the offence has been proved, the employer proves to the
satisfaction of the court -
(a) That he has used due diligence to enforce the execution of this Act, and
(b) That the said other person committed the
offence in question without his knowledge, consent or connivance,
That other person shall be convicted of the offence and shall be liable to the like punishment a,, if he were the employer and the employer shall be discharged from any liability under this Act in respect of such offence:
Provided that in seeking to prove as aforesaid, the employer may be examined on oath and his evidence and that of any witness whom lie cal Is in his support shall be subject to cross-examination on behalf of the person lie charges as the actual offender and by the prosecutor:
Provided further that, if the person charged as the actual offender by the employer cannot be brought before the court at the time appointed for hearing the charge, the court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the court, the court shall proceed to hear the charge against the employer and shall, if the offence be proved, convict the employer.
1. Subs. by Act No. 22 of 1987, s. 9, for “one
thousand rupees” (w.e.f. 1.10.1987).
2.
Subs. by ActNo.22 of l987, s.9 for
certain words (w.e.f. 1.10.1987).
3. Subs. by s. 9, held., for “three months” (w.e.f. 1.10.1987).
(1) No court shall take cognizance of any
offence punishable under this Act save on a complaint made by or under the
authority of the appropriate Government:
Provided that where the amount of gratuity has not been paid, or recovered, within six months from the expiry of the prescribed time, the appropriate Government shall authorise the controlling authority to make a complaint against the employer, whereupon the controlling authority shall within fifteen days from the date of such authorization, make such complaint to a magistrate having jurisdiction to try the offence.
(2) No court inferior to that of a 1[Metropolitan Magistrate or a judicial
Magistrate of the first class] shall try any offence punishable under this Act.
1. Subs. by Act No. 34 of 1994 (w.e.f.
24-5-1994).
12. Protection of action taken in good faith. -
No suit
or other legal proceeding shall lie against the controlling authority or any
other person in respect of anything which is in good faith done or intended to
be done under this Act or any rule or order made thereunder.
13. Protection of gratuity. - No gratuity payable under
this Act 1[and no gratuity payable to an employee
employed in any establishment, factory, mine, oilfield, plantation, port,
railway company or shop exempted under section 5] shall be liable to attachment
in execution of any decree or order of any civil, revenue or criminal court.
1. Ins. by Act No. 25 of 1984, s. 6 (w.e.f.
1-7-19841).
14. Act to override other enactments, etc. – The Provisions of this Act or any rule made there under
shall have effect not withstanding any thing inconsistent there with contained
in any enactment other than this Act or in any instrument or contract having
effect by virtue of any enactment other than this Act.
(1) The appropriate Government may, by
notification, make rules for the purpose of carrying out the provisions of this
Act.
(2) Every rule made by the Central Government
under this Act shall be laid, as soon as may be after it is made, before each
House of Parliament while it is in session, for a total period of thirty days
which may be comprised in one session or in
two or more successive sessions, and if,
before the expiry of the session immediately following the session or the
successive sessions aforesaid, both
Houses agree in making an modification in the rule or both Houses agree that
the rules should not be made the rule shall, there after have effect only in
such modified form or be of no effect, as the case may be; so however, that any
such modification or annulment shall be without prejudice to the validity of
any thing previously done under that rule.