provisions of the Payment of Gratuity Act, 1972
No: 39 Dated: Aug, 21 1972
THE PAYMENT OF GRATUITY ACT, 1972
ACT NO. 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:--
1.
Short title, extent, application and commencement.
1. 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
2
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
become so applicable falls below ten.]
(4) It shall come into force on such date2* as the
Central
Government may, by notification, appoint.
2.
Definitions.
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,
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-
1. Ins. by Act 26 of 1984, s. 2.
2. 16th September, 1972; vide Notification No. S. O. 601(E),
dated
16-9-1972, see Gazette of India, 1972, Extraordinary, Pt.
II,
Sec. 3(ii), p. 1641.
524
(c) of a factory belonging to, or under
the
control of, the Central Government,
(d) of a major port, mine, oilfield
or
railway company, the Central Government,
(ii) in any other case, the State Government;
(b) "completed year of service" means continuous service
for
3
one year;
1*[(c) "continuous service" means continuous service
as
defined in section 2A;]
(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.]
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-
1. Subs. by Act 26 of 1984, s. 3.
2. Omotted by Act 34 of 1994, s. 4 (w.e.f. 25-5-1994).
3. Subs. by Act 25 of 1984, s. 2 (w.e.f. 1-7-1984).
525
(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 a 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
4
been so appointed, the head of the Ministry or
the
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
(m)
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 1*[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
5
the dependent parents of her husband and the
widow
and children of her predeceased son, if any.
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-
1. Subs. by Act 22 of 1987, s. 2 (w.e.f. 1-10-1987).
526
1* * * *
*
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);
(j) "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 assigned to
it
in clause (e) of section 3 of the
Oilfields
(Regulation and Development) Act, 1948 (53
of
1948);
(m) "plantation" has the meaning assigned
to
it in clause (f) of section 2 of the
Plantations
Labour Act, 1951 (69 of 1951);
6
(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;
1*[(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 employee shall vacate the employment;]
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-
2. Subs. by Act 25 of 1984, s. 2 (w.e.f. 1-7-1984).
1. Omitted by Act 22 of 1987, s. 2 (w.e.f. 1-10-1987).
527
(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.
2A.
Continuous service.
7
2*["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 3***
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), lay-off, strike or a lockout
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 days, 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;
8
(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 works 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 has 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 or (14 of 1947), 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
9
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.]
3.
Controlling authority.
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
controlling authorities may be appointed for different areas.
4.
Payment of gratuity.
4. Payment of gratuity.- (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:
4*[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
10
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
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-
1. Ins. by Act 26 of 1984, s. 4.
2. Omitted by Act 22 of 1987 s. 3 (w.e.f. 1-10-1987).
3. Added by s. 3, ibid. (w.e.f. 1-10-1987).
4. Subs. by Act 22 of 1987, s. 4 (w.e.f.- - - - -).
528
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 1*["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.
2*[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
11
by fifteen.]
(3) The amount of gratuity payable to an employee shall
not
exceed 4*[one lakh 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
receive better terms of gratuity under any award or agreement
or
contract with the employer.
(6) Notwithstanding anything contained in sub-section (1),--
(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 1*[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 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.
12
5* * * *
*
4A.
Compulsory insurance.
6*[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 (9 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).
13
(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 subsection
(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).]
5.
Power to exempt.
5. Power to exempt.- 7*[(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
14
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.
8*[(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.]
9*[(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.]
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-
1. Subs. by Act 25 of 1984, s. 3 (w.e.f. 1-7-1984).
2. Ins. by Act 22 of 1987, s. 4 (w.e.f. 1-10-1987).
3. Subs. by s. 4 ibid., for "twenty months' wages" (w.e.f.
1-10-1997).
4. Subs. by Act 34 of 199, s. 3, for "fifthy thousand" (w.e.f.
24-5-1994).
5. Sub-section (7) Ins. by Act 25 of 1984, s. 3 and Omitted by Act
34 of 1994, s. 3 (w.e.f. 25-5-1994).
6. Ins. by 22 of 1987, s. 5, (w.e.f. ....... ).
7. Re-numbered by Act 26 of 1984, s. 5.
8. Ins. by s. 5, ibid.
9. Ins. by Act 22 of 1987, s. 6 (w.e.f. 1-10-1987).
529
6.
Nomination.
15
6. Nomination.- (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 sub-section (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 subsections
(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.
16
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 (1) has been made
or
not, determine the amount of gratuity and give notice in writing
to
the person to whom the 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 subsection
(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.]
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-
1. Subs. by Act 22 of 1987, s. 7 (w.e.f. 1-10-1987).
530
(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
17
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*[(b) Where there is a dispute with regard to any matter
or
mattes 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.]
3*[(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 may be, such amount as reduced by
the
amount already deposited by the employer.]
4*[(d)] The controlling authority shall pay the amount
deposited,
including the excess amount, if any, deposited by the employer, to
the
person entitled thereto.
4*[(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
1*[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 subsection
(4), the controlling authority shall have the same powers as
are
18
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).
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-
1. Explanation Omitted by Act 25 of 1984, s. 4 (w.e.f. 1-7-
84).
2. Ins. by s. 4, ibid. (w.e.f. 1-7-1984).
3. Subs. by s. 4, ibid. (w.e.f. 1-7-1984).
4. Re-letted by s. 4, ibid. (w.e.f 1-7-1984).
531
(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:
1*[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
19
the amount of gratuity required to be deposited under sub-section
(4),
or deposits with the appellate authority such amount.]
(8) The appropriate Government or the appellate authority, as
the
case may be, may, after giving the parties to the appeal a
reasonable
opportunity of being heard, confirm, modify or reverse the decision
of
the controlling authority.
7A.
Inspectors.
2*[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).
7B.
Powers of Inspectors.
7B. Powers of Inspectors.- (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;
20
(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 or 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 (1) 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).
21
(3) The provisions of the Code of Criminal Procedure, 1973 (2
of
1974) shall so far as may be, 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.
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:
4*[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.]
9.
Penalties.
9. Penalties.- (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
22
imprisonment for a term which may extend to six months, or with
fine
which may extend to 5*[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
5*[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 5*[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.
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 days' notice in writing
of
his intention to do so, to have any other person whom he charges
as
--------------------------------------------------------------------
-
1. Ins. by Act 25 of 1984, s. 4 (w.e.f. 1-7-1984).
2. Ins. by s. 5, ibid. (w.e.f. 1-7-1984).
3. Subs. by Act 22 of 1987, s. 8 (w.e.f. 1-10-1987).
4. Added by s. 8, ibid. (w.e.f. 1-10-1987).
5. Subs. by s. 9, ibid. (w.e.f. 1-10-1987).
532
the actual offender brought before the court at the time appointed
for
23
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 as 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
calls 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.
11.
Cognizance of offences.
11. Cognizance of offences.-(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:
24
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
authorisation, make such complaint to a magistrate having
jurisdiction
to try the offence.
(2) No court inferior to that of a 1*[Metropolitain
magistrate
or a Judicial Magistrate of the first class] shall try any
offence
punishable under this Act.
12.
Protection of action taken in good faith.
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.
13. Protection of gratuity.- No gratuity payable under this
Act
2*[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. Subs. by Act 34 of 1994, s. 4 (w.e.f. 24-5-1994).
2. Ins. by Act 25 of 1984, s. 6 (w.e.f. 1-7-1984).
25
533
14.
Act to override other enactments, etc.
14. Act to override other enactments, etc.-The provisions of
this
Act or any rule made thereunder shall have effect
notwithstanding
anything inconsistent therewith 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.
15.
Power to make rules.
15. Power to make rules.-(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 any modification in the rule
or
both Houses agree that the rule should not be made, the rule
shall,
thereafter, 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
anything
previously done under that rule.