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 he 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 he 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.
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).
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 he cal Is in his support shall be
subject to cross-examination on behalf of the person he 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) 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. 1-7-1984).
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.