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NOEL PHILIP (PROFESSOR)     26 September 2012

Gratuity for private engineering college

 

Dear Experts

      I was working in a Private Self finace Engineering College  for the Past 10 years  continuously as Professor with salary of Rupees one lakh. I  resigned  job from April 2012 onwards.Management gave relveing order also. But when I approached the director of the college for Gratuity, they said that they do not have any policy for giving gratuity to teaching staff, They told there is no rules for giving gratuity for private college faculty.

Sir, Kindly advice me to how to go head for solving this problem. what are the legal procedure for getting gratuity.Kindly give us your valuable advice.



Learning

 12 Replies

Kumar Doab (FIN)     26 September 2012

It is felt that as per amendment teachers at the primary, secondary, college level of unaided institutions are eligible for gratuity, with retrospective effect from April 3, 1997. The unaided schools/colleges/institutions should have arranged for compulsory insurance from LIC, Policy from LIC to bear the payments or the employers should pay from their own resources.

Valuable advice of learned experts/members is sought.

 

A similar thread was initiated:

Discussion > Labour & Service Law > Gratuity > Gratuity for self finance private engineering college

 

at following:

 

https://www.lawyersclubindia.com/forum/Gratuity-for-self-finance-private-engineering-college-66152.asp#.UGMklGcWrts

 

Gazette notification is attached in above mentioned thread.

The employee may submit FormI to employer under acknowledgment with a copy to Controlling Authority which may be ALC at location of employee under acknowledgment. Let the employer reply to employee in writing. There is nothing wrong in trying.

Payment of Gratuity Act, 1972

 

Section: 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 gratuity so determined.

(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.

(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify:

Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.]

 

SURESH GODBOLE (ADVOCATE)     27 September 2012

Pl quote from the ACT

 

                             The persons who are eligible for  payment of Gratuity            

 

                            Only then we may come to a conclusion whether  in case of Mr  Aby , whether this Act ios applicable or not

 

                           Also retrospective effect Order effective  from  1997 is erroneous as It says either the institutions may arrange it or Employees may  pay from their own resources . Generally employees give undertaking to colleges that they will do it t5hemselves and forget abvout it .

 

NOEL PHILIP (PROFESSOR)     28 September 2012

Sir

Thank you for reply.Kindly clarify from where I will know I am eligible for gratuity or not. while joining or after that I didn't sign any agreement with management that I will pay for gratuity from my salary.please give me correct direction to get my gratuity. please help me the procedure.

This will help many people working in private colleges get benefit

Kumar Doab (FIN)     28 September 2012

It is felt that:

The schools under the control of local bodies were covered under the Act with effect from 8.1.1982. The employees of the Government schools are already entitled to gratuity under the extant rules of the Government governing gratuity and pension but the employees of the private schools were having no legal entitlement to gratuity. As gratuity is an old age retiral social security benefit, it was considered desirable to extend the benefit of the Payment of Gratuity Act, 1972 to all employees employed in all educational institutions having ten or more persons. Accordingly, the Central Government extended the provisions of Payment of Gratuity Act, 1972 to the educational institutions employing 10 or more persons vide the Ministry of Labour and Employment Notification No. S.O. 1080 dated 3 April 1997. The Notification came into force w.e.f 19.4.1997, date when it was published in the Gazette of India.The definition of “employee” under section 2 (e) of the Payment of Gratuity Act, 1972, was modified and the Government has made the amendment with retrospective effect from April 3, 1997.

 

Gazette Notification is enclosed in this thread.

Also enclosed is the Judgment of 2012 of Bombay HC delivered citing SC judgments and should help you.

The attachments posted in thread are also posted in other thread initiated by Eishal.

Submission of Form I is not litigation. There is nothing wrong in making an attempt.

You may submit the FormI to good office of your appointing authority and Controlling Authority of Gratuity which may be ALC in your case under proper acknowledgment from both, with a covering letter and mention that the reply be supplied to you by redg/speed post and for this purpose a self addressed postage prepaid envelope is enclosed. Let them reply to you by redg/speed post.

Employers tend to take advantage of ill informed employees and attempt to subdue the employees by giving misleading information verbally. Many of the employees get subdued and do not submit FormI in their life time and give up their rights.

If an employer has not taken compulsory insurance employer has to disburse the payment of gratuity from its own resources.

If employer is so confident let employer submit its private interpretation of the act in writing.

Employer can award better benefits to the employee but can not decline anything which is entitled by the Act to the employee.

Section: 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 writ 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 gratuity so determined.

(4)

(a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.

Kindly post the developments in this thread.It shall help many of the fellow employees and countrymen.

Valuable advice of learned experts/members is sought.

 


Attached File : 492712268 payment of grtuity to teachers the president secretary vs shri pradipkumar s o ... on 21 february, 2012.pdf, 492712268 gartuity gazette notification amendment 2009.pdf downloaded: 1085 times

Kumar Doab (FIN)     28 September 2012

You have posted that:

--“while joining or after that I didn't sign any agreement with management that I will pay for gratuity from my salary.”

PF and Gratuity are social security acts.

The following is with limited understanding on the matter and may be treated as heartfelt opinion. You may approach a competent and experienced labor consultant/service lawyer who has worked extensively on matters related to PF and Gratuity and a Labor official/Controlling Authority for Gratuity, worth his salt.

Even in case of companies which employ, the employees by offering remuneration by way of CTC can not deduct employee’s contribution to PF and Employer’s liability of payment of gratuity from wages/salary of employee. If employer resorts to such practices it can be termed illegal.

Some of the employer many of them from IT sector show gratuity in CTC which can at the best be construed as an entry in excel sheet to work out the costs and prepare to arrange for resources  for the payment of gratuity at the time is due to be paid to employee. Many of employers who show gratuity in CTC sheet pay the mount as tax free ex gracia if employee separates before completion of 5 years. Many of the employees who have been subjected to gratuity in this CTC thing and who have agitated have succeeded in getting payments from employers. There have been threads initiated by employees in such a situation.

The payment made by employers and its HR team is by way of ex gracia however employee can agitate and demand payment by method of gratuity calculation. Majority of the employee get subdued and remain silent however those who stand up for their rights get their rights.

Demanding for payment of gratuity {in writing/FormI} is not litigation. HR/Personnel/IR guys have to play a constructive role and educate and advice employers to adhere to rules, than to teach tactics to flout the rules/laws…………

One properly informed employee is sufficient for an employer and its teams of HR.

Kindly gather as much as references on employers who obtain affidavit or undertaking or agreement that employee shall pay for gratuity from his salary/wages.

The govt. should be approached for a clarification on this.

The attempt by leaned experts/members shall go a long way to help the fellow employees/colleagues/countrymen.

Kumar Doab (FIN)     28 September 2012

Refer to the gazette Notification already attached. Read the amendment at page 4,and :

 

3.   After Section 13 of the principal Act, the following section shall

 

               be inserted, namely :—

 

“13A.

pursuance       of  the  notification   of  the   Government       of  India  in  the

 

                     Ministry of Labour & Employment vide number S.O.1080,dated the

 

                     3rd   day   of   April,   1997

 

The said notification of the government is also attached with this post. The attachment clearly and loudly states applicability and entitlement of gratuity to teachers.

All controlling Authorities of the Gratuity would have it.

All authorities in unaided/private schools and colleges should have it. These should not deny gratuity.


Attached File : 706342360 gratuity to teachers the payment of gratuity amendment bill 2009.pdf downloaded: 868 times

NOEL PHILIP (PROFESSOR)     29 September 2012

Thank you very much sir

LCI Thought Leader Rajesh Tandon ( Col (Retd))     30 September 2012

kindly clarify  whether   the amendment introduced  by  Payment of gratuity Act (Amendment ) 2009, introducing Sec 13A  supersedes the judgement of supreme court. Does it have Legal acceptance by introducing something contrary to  supreme court Judgement.

In its judgment dated 13.1.2004 in Civil Appeal No.6369 of 2001 filed by Ahmedabad Private Primary Teachers’ Association, Hon’ble Supreme Court of India ruled that teachers are not entitled to gratuity under the payment of Gratuity Act, 1972 in view of the fact that teachers do not answer descripttion of definition of “employee” under section 2 (e) of the Payment of Gratuity Act,1972. The ruling also, inter alia, states that non-use of wide language similar to definition of “employee” as is contained in section 2(f) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 reinforces the conclusion that teachers are not covered in the definition.17. In this context , para 26 of the said judgment is quoted as follows:-

 

“Our conclusion should not be misunderstood that teachers although engaged in very nobleprofession of educating our young generation should not be given any gratuity benefit. There are

 

already in several States separate statutes, rules and regulations granting gratuity benefits to

 

teachers in educational institutions which are more or less beneficial than the gratuity benefits

 

provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in

 

various establishments where gratuity benefits are not available and think of a separate legislation

 

for them in this regard. That is the subject matter solely of the Legislature to consider and decide”.


Attached File : 920324751 sc judgement on teacher gratuity.docx downloaded: 333 times

Kumar Doab (FIN)     01 October 2012

Mr. Rajesh Tandon has added interesting dimensions to the thread and has taken the discussion further.

Bombay High Court decision as recent as Feb, 2012:

The President/Secretary vs Shri Pradipkumar S/O ... on 21 February, 2012

 

“There is no escape but to hold that a Teacher is an 'employee' within the meaning of Section 2(e) of the said Act and hence the provisions of the said Act are applicable.

There is no challenge to the judgments and orders passed by the Authorities below on merits. Hence, no fault can be found with the view taken by the Authorities below.”

 

IN this judgment Learned judges of the honorable have referred to Payment of gratuity Act (Amendment ) 2009, introducing Sec 13A, judgment of supreme court in appeal filed by Ahmadabad Private Primary Teachers’ Association, Ministry of Labour & Employment vide number S.O.1080,dated the 3rd   day   of   April,   1997 and has left nothing to speculations. In fact all speculations have been put to rest.

Kindly note that the ALC, appellate authority have not erred and have implemented the directions in toto. It is the employer who wanted to burden the employee with litigation.

The employers of teachers should give up throwing tantrums and pay gratuity, without any delay.

Teachers should also submit formal request for payment of gratuity and FormI a month before effective date of resignation {in case notice of resignation is submitted} under proper acknowledgment. If employee has served notice of resignation employee has notified date of retirement.

THE PAYMENT OF GRATUITY (CENTRAL)

RULES, 19721

     7. Application for gratuity.-(1)

Provided that where the date of superannuation or retirement of an employee is known, the employee may apply to the employer before thirty days of the date of superannuation or retirement.

 

 

This time if the employer is throwing tantrums, you may demand for exemplary punishment.

It is felt that honorable Supreme Court analyzed the situation and plight of teachers, and prompted the executive to take a qualified note and take appropriate decision and executive read between the lines/has not violated the guidelines, and things were put in order.

“Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit.”

The lapses responsible for plight of the employees have been removed and situation has been put in order.

Kindly go thru the attachment:

 

 

706342360_gratuity to teachers the payment of gratuity amendment bill 2009.pdf

 

and gazette notification which are already posted.

The matter is self explanatory. Hope your purpose is solved.

Kindly post the judgments passed in other states as well and let us compile in a folder and support fellow citizens.

 

Penalties for Non-Payment of Gratuity:

Where the offence relates to non-payment of gratuity payable under the Act, the employer shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or fine which shall not be less than 10 thousand rupees but extend to twenty thousand rupees or both.

 


Attached File : 60334234 gratuity to taechers decision feb 2012 the president secretary vs shri pradipkumar s o ... on 21 february, 2012(1).pdf downloaded: 473 times

Kumar Doab (FIN)     04 October 2012

@ Rajesh Tandon

Learned Judges of the Honorable Supreme Court have remarked and decided that

“It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide”.

Reading between the lines the Legislature has taken cognizance of the matter, and has decided in favor of the teachers and provided benefit of Gratuity with retrospective effect from 1997. This is made clear in Gazette publication.

There is no scope for any speculation or guess.

The matter is clear.

 

@Aby

Kindly update the developments in this thread.

It shall help many of the fellow citizens and colleagues.

Kumar Doab (FIN)     15 November 2015

 

In the following thread :

 

https://www.lawyersclubindia.com/forum/Private-school-teachers-gratuity-effective-from-which-date--96881.asp#.Vkhuxl5-jMo

 

 

a judgment has been cited, that may be taken up with your own counsles, for considered opinion and further action:

 

High Court Of Madhya Pradesh

Decided on March 14,2011

 

MAHENDRA SINGH CHHABRA Appellant

VERSUS

APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT Respondents

 

The court has seemingly decided to award gratuity for period before 1997 also......

 

" the Controlling Authority has passed an order directing payment of gratuity by taking into account 44 years of service, amounting to Rs.250546/ -. ..............................................this Court is of the considered opinion, that the services rendered by the petitioner on the post of teacher are required to be taken into account for the purposes of calculation of gratuity and as the same has already been done earlier on 28 -3 -03 by the Controlling Authority, the respondent No. 2 is directed to pay the gratuity amount to the petitioner as quantified by the Controlling Authority, vide order dated 28 -3 -03. The impugned order passed by the Appellate Authority dated 4 -3 -06 is quashed and the order passed by the Controlling Authority dated 28 -3 -03 is upheld."

 

Dr. Bathini Srinivas   28 April 2022

what are the minimum eligiblity for taking gratuity in Telangana state

1.How many years of  service reqired ? (1 yr or 2 yrs  or 5 yrs or 10 yrs etc)

2. what is the age ?

 


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