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,
 --------------------------------------------------------------------
-
 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.]
 --------------------------------------------------------------------
-
 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.
 --------------------------------------------------------------------
-
 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;]
 --------------------------------------------------------------------
-
 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
 --------------------------------------------------------------------
-
 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.]
 --------------------------------------------------------------------
-
 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.]
 --------------------------------------------------------------------
-
 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).
 --------------------------------------------------------------------
-
 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.