Gratuity
Querist :
Anonymous
(Querist) 30 April 2011
This query is : Resolved
An employee worked in a bank as deposit collecteron commission basis has resigned from serice after putting ten years of service. The bak employed more than ten employees.Whther the employee on commission basis is eligible for gratuity? If so the notifications or court rulings? The rate of calculations ?
Guest
(Expert) 01 May 2011
Gratuity is permissible only to the regular employees on termination or retirement, not to workers engaged on commission basis.
Any person working on commission basis without the element of any salary is termed as commission agent only, not an employee. An employee is a worker who is employed on regular basis on salary basis.
V.T.Venkataram
(Expert) 01 May 2011
As per judgment of Supreme Court in Surendra Kumar Verma vs. Central Govt. Industrial Tribunal,[(1980) (4) S.C.C.433)], it is enough that an employee has a service of 240 days in the preceding 12 months and it is not necessary that he should have completed one whole year’s service. As the definition of continuous service in Industrial Dispute Act and Payment of Gratuity Act are synonymous, the same principal can be adopted under the act also and hence an employee rendering service of 4 year 10months 11days is considered to have completed 5 years continuous service under sec.4(2) and thereby is eligible for gratuity."
As per Section 2(e) of the The Payment of Gratuity Act, 1972,
"employee" means any person (other than an apprentice) employed on wages, 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, 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"
Hence, the question is answered in affirmative.
malipeddi jaggarao
(Expert) 01 May 2011
I agree with Mr.Dhingra. Deposit collectors on commission basis can not be treated as employees. The provisions narrated by Expert Mr.V.T.Venkataram are applicable to the daily wage workers in the Banks who discharge the similar duties as subordinate staff (Peons) but a consolidated amounts were paid to them without taking into regular service. If they challenge the Bank in the courts, the provisions narratedby Mr.V.T.Venkataram will apply. In the present case, the commission agents are not discharging any duties which are similar the regular employees of any cadre. The commission agents work is specific though this appears to be similar to that of clerks. Clerical duties are wide and commission agents duties are narrow forming a part of clerical duties. Hence they can not claim any benefits that are attached to the regular employees. Ofcourse this is purely my personal view basing on the practical knowledge, and should notbe construed as final reply.
Guest
(Expert) 01 May 2011
Dear Mr. Venkataram,
You may please like to refer to the definition of employee given under sec.2 for the purpose of payment of gratuity, which implies --
"Employees means any persons [NOT being an Apprentice] EMPLOYED FOR WAGES in any kind of work (manual or otherwise) or in connection with work of factory, mine, plantation, oilfield, railway company, port or other establishment."
A commission agent is not employed FOR WAGES, but on commission basis that varies according to his output in terms of the number of cases.
He may therefore like to suggest, on what basis a commission agent would get the gratuity?
However, I would be quite happy if the commission agents are also considered employees of the concerned organizations to get some reward of their services rendered to the organizations.
