– Prachi Agrawal, CNLU
Editor’s Note: Gratuity is a voluntary Payment made by the employer to the employee in recognition of continuous, meritorious services and sincere efforts by the employee towards the organization.It is governed under the Payment of Gratuity Act 1972. It is an Act to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, Oilfields, plantations, ports, railway companies, and shops or other establishments. This Paper attempts to highlight the various critical issues pertaining to this Act along with its applicability and efficacy.
The Payment of Gratuity Act 1972 is a social security enactment. 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[i]. The significance of this legislation lies in the acceptance of the principle of gratuity as a compulsory statutory retiral benefit.[ii] The Act accepts, in principle, compulsory payment of gratuity as a social security measure to wage earning population in industries, factories and establishments. Thus, the main purpose and concept of gratuity is to help the workman after retirement, whether retirement is a result of the rules of superannuation, or physical disablement or impairment of vital part of the body. Thus, it is a sort of financial assistance to tide over post retiral hardships and inconveniences.[iii] It is derived from the word ‘gratuitous’, which means ‘gift’ or ‘present’. However, having being enacted as a social security form, it ceases to retain the concept of a gift but it has to be seen as a social obligation by an employer towards his employee. 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(five year service not required) due to accident or disease
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 (i.e. government officer) 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[iv]. In computing the gratuity payable to an employee who is re-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.
Principle of Social Security
Lord William Beveridge, the pioneer in initiating a comprehensive social security plan who mentioned five giants in the path of social progress namely, ‘want’, ‘sickness’, ‘ignorance’, ‘squalor’ and ‘idleness’ on the road to social security which should be attacked and killed, defines ‘social security’[v] as “security of an income to take the place of earnings when they are interrupted by unemployment, sickness or accident, to provide for retirement through age, to provide against loss of support by death of another person and to meet exceptional expenditure, such as those concerned with birth, death and marriage.” Generally speaking, the principle of social security may be considered to be a part of the principle of welfare, but in view of its special connotation, it is desirable to keep it under a separate category. In industrial societies, income insecurity resulting from various contingencies of life such as disablement, old age and death and others, has become a serious problem. The problem has become more acute in view of phenomenal growth of the permanent class of wage-earners. During such contingencies the income of the earners either stops altogether or is reduced substantially or becomes intermittent causing hardships not only to the earners, but also to their family members. One of the outstanding measures to mitigate the hardship is to make available social security benefits under the coverage of legislation[vi].
Social security legislation may be kept under two broad categories- social insurance legislation and social assistance legislation. In social insurance, benefits are generally made available to the insured persons, under the condition of having paid the required contributions and fulfilling certain eligibility conditions. The fund for social insurance schemes usually comes from contributions of the beneficiaries and their employers, often supplemented by state grants. Under social insurance, the beneficiaries receive benefits as a matter of right.[vii] The benefits are not linked to the economic needs or financial conditions of the beneficiaries who receive these at the rates and in the forms, established by law. In social assistance also, the beneficiaries receive benefits as a matter of right, but they do not have to make any contributions. The finance is made available by the state or a source specified by the state. Social assistance benefits are generally paid to persons of insufficient means and on consideration of their minimum needs. In the beginning, social security laws mainly covered industrial workers but subsequently, other categories of workers, self-employed persons and people at large, also came under its coverage.
Applicability of the Act
The Payment of Gratuity Act 1972 applies to the whole of India and so far as it relates to ports and plantations it does not apply to the State of Jammu and Kashmir. It applies 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 establishment in a State, in which 10 or more persons are or were employed on any day in the preceding 12 months. (c) Such other establishments or class of establishment, in which 10 or more employees are or were employed on any day in the preceding 12 months, as the Central Government may notify in this behalf. Any shop or establishment shall continue to be governed by the Act even if the no. of its employees comes below 10 persons at any time in the future.[viii] Public charitable and religious trusts are also covered by this Act, provided that they are shops or establishments within the meaning of the Shops and Establishment Act applicable to their area of operation and that 10 or persons have been employed by them on any day in the preceding 12 months.
Salient features of the Payment of Gratuity Act, 1972
- The Act is a self-contained and an exhaustive Act and the provisions of this Act and rules made under it have an overriding effect on all other Acts or instruments or contracts so far as they are inconsistent with this Act.
- The Act is fairly sweeping in coverage, as it applies to all factories, mines, oil fields, plantations, ports and railways irrespective of the number of workmen employed by them. It also covers shops and establishments employing 10 or more persons.
- The Act gives a statutory right of gratuity to all the employees, who have rendered five years’ continuous service and whose services stand terminated after coming into force of the Act on account of superannuation, or retirement, or resignation, or death or disablement.
- The Act provides both executive and quasi-judicial machinery for matters pertaining to nomination, determination and recovery of gratuity.
- The executive machinery pertains to maintenance of records regarding opening, change or closure of establishments, display of notices and maintenance of records by the controlling authority. The quasi-judicial functions have been divided between the employers and the Controlling Authority in as much as for payment of gratuity, the first forum provided is an application to the employer. When the employer has declined or avoided payment of gratuity, then an application is required to be made to the Controlling Authority.
- The machinery provided for recovery rests with the Controlling Authority.
- The orders of the Controlling Authority for payment or determination of gratuity are applicable before the appropriate government or the appellate authority.
Gratuity is a reward for good, efficient and faithful service rendered for a considerable period. A workman becomes experienced during the tenure of his employment. This enables him to move out for better job avenues. Other employers can throw temptations to him. To lose him may be a loss to the employer. But if he stays on, that is his loyality to the employer.[ix] Section 4 of Payment of Gratuity Act, 1972 provides that 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.[x] It is generally payable on superannuation or on retirement or death or disablement of employee due to accident or disease. The condition of completion of service of five years shall not be necessary where the termination of employment is due to death or disablement of the employee. In case of death of the employee, gratuity payable to the employee shall be paid to his nominee, or if no nomination has been made, to his heirs[xi]. Disablement has been explained in the explanation to sub-section (1) of S.4 of the Act as such disablement which incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement. Sub-section (1) of S.4 of the Act incorporates the concept of gratuity being a reward for long, continuous and meritorious service. The emphasis therein is not on ‘continuity of employment’, but on rendering of ‘continuous service’. The legislature inserted the two Explanation in the definition to extend the benefit to employees who are not in uninterrupted service for one year subject to the fulfilment of the conditions laid down therein. By the use of legal fiction in these Explanations, an employee is deemed to be in ‘continuous service’ for purposes of sub-section (1) of S. 4 of the Act. The legislature never intended that the expression ‘actually employed’ in Explanation I and the expression ‘actually worked’ in Explanation II should have two different meanings because it wanted to extend the benefit to an employee who ‘works’ for a particular number of days in a year in either case[xii].
Amount Of Gratuity
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 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 (in a piece rated system there may not be the concept of basic, DA, HRA, CCA etc. In the case of 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. 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. The amount of gratuity payable to an employee shall not exceed Rs.3,50,000. If there is an award, agreement or contract for higher amount of gratuity It is allowed[xiii].
Employer To Initiate Calculation And Notice Of Payment
Any person eligible to receive gratuity shall make an application to the employer for payment of the same within the prescribed time. Whether an application is made or not the employer shall determine the amount payable and give notice to the eligible person/s. The controlling authority shall perform the following functions[xiv].
(i) Specifying the amount of gratuity determined.
(ii) Prescribe the time limit for payment of gratuity.
(iii)The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable.
(iv)If not paid within the period stipulated above employer is liable to pay interest for the delayed payment.
(v) Interest is not payable if the delay was caused 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.
(vi)If there is any dispute as to the amount payable or the persons eligible to receive it the employer shall deposit amount as per his calculation with the controlling authority.[xv]
Procedure for resolving the disputes
Where there is a dispute the aggrieved party shall make an application to the controlling authority for deciding the dispute. controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard,determine the matter and pass appropriate orders.[xvi]
Powers of controlling authority
The controlling authority shall have the powers in respect of the following matters, namely (a) enforcing the attendance of any person(b) requiring the discovery and production of documents;(c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses. Appeal if any shall be made within 60 days from the date of the order[xvii]. Appeal by employer will not be admitted unless the disputed amount is deposited appellate authority, after giving the parties to the appeal a reasonable opportunity of being heard, confirm, modify or reverse the decision of the controlling authority.
Forfeiture of Gratuity
An employee, whose services have been terminated for any act, willful 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.[xviii]
Recovery of gratuity
If the amount of gratuity payable under this Act is not paid by the employer, within the prescribed time, 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 as arrears of land revenue and pay the same to the person entitled.
Registration of Establishments
every employer shall 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 or has established an approved gratuity fund[xix].
Retirement And Superannuation
Retirement means termination of the service of an employee otherwise than on superannuation; 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 employee shall vacate the employment. Wages are all emoluments which are earned by an employee while on duty or on leavein 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[xx].
Payment Of Gratuity
Gratuity shall be paid to an employee on the termination of his employment after s/he has rendered continuous service of not less than 5 years i.e. on superannuation, retirement, resignation, death or disablement due to accident or disease (Sec 4). The period of 5 years is not necessary if the termination of the employee is because of death or disablement. In the case of death the amount is paid to the legal heirs “Continuous Service” means uninterrupted service which may be interrupted on account of sickness, accident, leave, absence from duty without (not being treated as break in service), lay-off, strike, lock-out or cessation ofwork not due to the fault of the employee. (Sec 2A)[xxi].
Calculation of Gratuity
Gratuity is calculated at 15 days wages last drawn by the employee for each completed year of service. The monthly wage is divided by 26 and multiplied by 15. In computing a completed year of service the period in excess of six months shall be taken as a full year. Gratuity = Monthly salary x 15 days x No. of years of service. The maximum amount of gratuity payable under the Act is Rs. 3,50,000.00.[xxii]
The Payment of Gratuity (Amendment) Act, 1987 has prescribed provisions for compulsory insurance for employer’s liability for payment towards the gratuity under the Act from the Life Insurance Corporation of India establishment under the Life Insurance Corporation of India Act,1956 or any other prescribed Insurer. However, employer of an establishment belonging to or under the control of the Central Government or the State Government are exempted from operations of these provisions. (Section 4A)[xxiii]
Each employee who has completed one year of service is required to make a nomination for the purposes of gratuity in case of his death. (Sec 6) There can be more than one nominee. (Form F). Nominees may be changed at any time by the employee, by giving a written notice to the employer. (Form H). If no nomination has been made, it shall be paid to the legal heirs of the deceased employee or if the heirs are minor, the share of such minor shall be deposited by the controlling authority with a bank till he attains majority.[xxiv]
Protection of Gratuity
No gratuity payable under the Act shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court. However if the employee had agreed to a deduction from the amount due as gratuity then that amount can be recovered[xxv]. (Sec. 13)
Notice of Opening, change, closing of Establishment(Rule 3)
Once the Payment of Gratuity Act becomes applicable to the establishment, a notice in Form ‘A’ has to be given by the employer to the controlling authority within 30 days. Notice in Form ‘B’ is to be given to the controlling authority within 30 days of any change in name, address, employer or nature of business. Where an employer proposes to close down the business he shall submit a notice in Form ‘C’ to the Controlling Authority at least 60 days before the intended closure.
Failure to comply with the Payment of Gratuity Act 1972 entails certain penalties (Sec. 9)[xxvi], which are the following:
(i) For avoiding any payment knowingly makes any false statement or representation Shall be punishable with imprisonment upto 6 months or fine upto Rs. 10,000.00 or both.
(ii) Failure to comply with any provision of the Act or Rules Shall be punishable with imprisonment upto 1 year but will not be less than 3 months or with fine, which will not be less than Rs. 10,000.00 but may extend upto Rs. 20,000.00 or with both.
(iii)Any offence relating to non payment of gratuity under the Act Employer shall be punishable with imprisonment for a term which shall not be less than 6 months but may extend to 2 years, unless the court for reasons recorded decides for a lesser term of imprisonment or fine.
Constitutional Validity of the Act
The right to gratuity is a statutory right. It is necessary that the employee should have been regular in the employment. However, if an employee is re-employed without any break in service he will also be eligible for gratuity.[xxvii] According to section 4(2), every employee is entitled to gratuity at the rate of 15 days’ wages for every completed year of service. An employee who resigns from the service is entitled to gratuity. A nominee of an employee can make an application for gratuity without producing a succession certificate. Under section 4(6)(a), gratuity payable to an employee shall be forfeited to the extent of loss or damage caused if termination is effected for any act, wilful omission or negligence[xxviii]. However, the employer has to prove the extent of damage or loss caused by the employee’s misconduct. In the absence of any proof the right to forfeit the gratuity under section 4(6)(a) is not available to the employer.[xxix] The right to recover damages for not surrendering the quarters of the employer was held to be not connected with the conduct for which the services were terminated.
Withholding of gratuity on that account was held to be not justified.[xxx] For the purpose of ascertaining the extent of damage or loss caused by the employee, the employer has to give a notice of the proposed forfeiture to the employee. Where no such notice was given, it was held that the matter required reconsideration.[xxxi] Gratuity cannot be forfeited unless quantum of loss or damage has been ascertained.[xxxii] In Bakshish Singh v. Darshan Engineering Works[xxxiii], it was held that provision of a period of 5 years service as qualifying period in section 4(1)(b) is one of minimum service conditions made available to employees notwithstanding financial capacity of employer to bear its burden and it is reasonable restriction on the right of the employer to carry on business within the meaning of Article 19 of the Constitution and section 4(1)(b) of the Act is legal and valid. Even assuming that the presumption that a longer period of service for entitlement to gratuity on voluntary retirement or resignation is necessary to prevent labour from changing employment frequently, that consideration has no bearing on the question whether a short period of qualifying service is violative of Article 19(1)(g) of the Constitution. That Article comes into picture only if, among others-
(a) It is shown that the short qualifying period of service throws on any particular employer such financial burden as would force him to close his establishment and
(b) The provision is not one of the minimum service conditions, which must be made available to the employees.
Hence the provision for a short qualifying period per se is not invalid and cannot be struck down generally as being violative of Article 19(1)(g) of the Constitution. The provisions of the Act were meant for laying down gratuity as one of the minimum service conditions available to all employees covered by the Act. There is no provision in the Act for exempting any factory, shop etc. from the purview of the Act covered by it except those where, the employees are in receipt of gratuity or pensionary benefits which are no less favourable than the benefit conferred under the Act. The payment of gratuity under the Act is thus obligatory being one of the minimum conditions of service. The establishments which have no capacity to give to their workmen the minimum conditions of service prescribed by the statute have no right to exist[xxxiv].
Payment of Gratuity Act is on the genre of statutes like the Minimum Wages Act, ESI etc. which lay down the relevant minimum benefits which must be made available to the employees. Payment of Gratuity Act is a welfare measure introduced in the interest of the general public to secure social and economic justice to workmen to assist them in old age and to ensure them a decent standard of life on their retirement. Therefore the Act imposed a reasonable restriction on the employer in respect of the fundamental right under Article 19(1)(g)[xxxv]. The provision for payment of gratuity contained in section 4(1)(b) of the Act is one of the minimum service conditions which must be made available to the employees notwithstanding financial capacity of employer to bear its burden and it is reasonable restriction on the right of the employer to carry on business within the meaning of Article 19 of the Constitution and section 4(1)(b) of the Act is legal and valid.
Edited by Saksham Dwivedi
[i] E.M.Rao (Ed.) O.P. Malhotra, “The Law Of Industrial Disputes”, 6th Ed., 2004, Lexis Nexis Butterworths, New Delhi. At P. 198
[ii]Jeewanlal Ltd. V. Appellate Authority, AIR 1984 SC 1842.
[iii]Ahmedabad Pvt. Primary Teachers Assocn. V. Administrative Officer, AIR 2004 SC 1426.
[v] K.D.Shrivastav, The Industrial Disputes Act, 1947, (6th Ed., 1985, Eastern Book Company, Luknow) P. 45
[vi]Ibid At P. 52
[vii]Ibid At P. 55
[viii] Dr. Avtar Singh, Introduction To Labour And Industrial Law (Ed.2nd, Lexis Nexis Butterworths Wadhwa, Nagpur, 2008). At P. 73
[ix]Dtc Retired Employees’ Assn. V. Delhi Transport Corpn., AIR 2001 SC 1997.
[x] Gyanendra Saran, Law On Industrial Dispute (Ed. 4th, Lexis Nexis Butterworths Wadhwa, Nagpur, 2010). P. 56
[xii]Supra Note 8 At P. 56
[xiii] P.K. Padhi, Labour And Industrial Laws, (Ed.2nd, Phl Learning Pvt. Ltd., New Delhi, 2012). At P 67
[xiv] S.N. Mishra, Labour And Industrial Law (Ed. 24th, Central Law Publication, Allahabad, 2011). At P. 434
[xvi]Supra Note 12 At P. 66
[xviii]Ibid At P. 87
[xix] P.L. Malik, Industrial Law (Ed.21st, Eastern Book Company, Lucknow,2008). At P. 98
[xx]Supra Note 14.
[xxi] Gyanendra Saran, Law On Industrial Dispute (Ed. 4th, Lexis Nexis Butterworths Wadhwa, Nagpur, 2010). P. 5
[xxii]Ibid At P 60
[xxiii]Ibid At P 62
[xxv] Jaganatha Dasik V Bina Khadi & Village Industries Board 1995 Lab. IC 923
[xxvi] Dr. H.R. Saharay, Textbook On Labour And Industrial Law (Ed. 5th, Universal Law Publication Co., 2011). At P. 124
[xxvii] Gyanendra Saran, Law On Industrial Dispute (Ed. 4th, Lexis Nexis Butterworths Wadhwa, Nagpur, 2010). At P. 561
[xxix]Permalli Wallance Ltd. V. State Of M.P., (1996) 2 Llj 515 (Mp).
[xxx]Rajendra Pal V. Canara Bank, (1998) 1 Lab Lj 577 (Ker).
[xxxi]J.B.Michael D’souza V. Appellate Authority Under P.W.Act (2001) 2 Lab Lj 1450.
[xxxii]Bharat Motors N.R.P.Ltd. V. Presiding Officer, Labour Court, (1998) 1 Lab Lj 907 (Mad).
[xxxiii](1994) 1 LLJ 197 (Sc).
[xxxiv] S.N. Mishra, Labour And Industrial Law (Ed. 24th, Central Law Publication, Allahabad, 2011). P. 323
[xxxv]Ibid. At P. 325