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ANNADATE (xxx)     11 December 2010

PAYMENT OF GRATUITY ACT

A, an Indian citizen, retired on completion of 58 years, has  joined an educational

institution in its administration department at his age of 60 years.  He was

relieved from this job of educational institution at the age of 72 years.

The management of the educational institution says that "A" is NOT

entitled to receive gratuity. "A" says that he should get the gratuity as he was in

service for more than 5 years and age is not the criteria..  Expert Lawyer may

please give his comments and advice. . 



 10 Replies

Ahmed Daud Girach (Advocate)     11 December 2010

After ataining of age of superannuation no employee is entiteled as a matter of right  to be employement in any establishment

sir J.P.srivastavagroup of Industries V State of UP(1993)66FLR 248 (Allahabad)

SALA SATEESH (lawyer)     11 December 2010

Dear Sir,

when the employee is recruited then for the services rendered he is eligible for every payment as stipulated under the labour laws.

As such you can claim gratuity as a matter of right.

there is no such provison which prohibts the employee after attaining superannuation can't claim.

Senior collegaues of this fraternity, kindly correct me if any errors is opining this

Regards,

S.Sateesh

Uma parameswaran (lawyer)     11 December 2010

Gratuity Act is not telling any age limit.

Ahmed Daud Girach (Advocate)     11 December 2010

Age as is fixed in the contract or condition of service for superannuation beyond that not payable.After retirement employee is not a regular employee so he is not drawing wages but draw honararium or any fix or variable amount  that can not be said wages .

Kirti Kar Tripathi (lawyer)     12 December 2010

 

.This no ground for denial of gratuity. Once the employer retained a person after retirement or appointed him after retirement , the employee, who has completed continuous service of not less than 5years is entitled for gratuity after termination of service either by his retirement, resignation or any other manner. However, for educational institutions it depends, when the employee was retired or his services terminated in any manner as prior to latest amendment in Payment of Gratuity Act, the Act was not applicable to the educational institutions. 

ANNADATE (xxx)     13 December 2010

Sir,

Thank you for your prompt response.

You have mentioned that “……..as prior to latest amendment in Payment of Gratuity Act, the Act was not applicable to the educational institutions”.   Please inform me the details of amendment about this applicability of the Act to the educational institutions.  

 

In the educational institution stated in the query, the gratuity is already being paid to retired/ terminated / relieved employees.  But the employee “A” is being denied the payment of Gratuity and hence the query was made. 

 

Thanks

 

A. K. Annadate. 

ANNADATE (xxx)     13 December 2010

Sir,

 

Thank you for your prompt response.

The case / judgment mentioned by you is for government employees.  In the educational institution mentioned in the query the Payment of Gratuity is applicable and the Gratuity is being paid by the educational  institution.  However, the employee “A” is being denied the payment of Gratuity and hence the query was made. 

I would be grateful to have your say in the matter.

 

Thanks

 

A. K. Annadate

Kirti Kar Tripathi (lawyer)     13 December 2010

Dear Annadte, I am posing you the  object of  payment of Gratuity Act (Amendment) Act, which will show that the act is applicable to educational institutions

 

STATEMENT  OF  OBJECTS  AND  REASONS

The Payment of Gratuity Act, 1972 provides for payment of gratuity to employees

engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other

establishment and for matters connected therewith or incidental thereto. Section 1(3)(c) of

the said Act empowers the Central Government to apply the provisions of the said Act by

notification in the Official Gazette to such other establishments or class of establishments in

which ten or more employees are employed, or were employed, on any day preceding twelve

months. Accordingly, the Central Government had extended the provisions of the said Act to

the educational institutions employing ten or more persons by notification of the Government

of India in the Ministry of Labour and Employment vide number S.O. 1080, dated the

3rd April, 1997.

2. The Hon’ble Supreme Court in its judgment in Civil Appeal No. 6369 of 2001 dated

the 13th January, 2004, in Ahmedabad Pvt. Primary Teachers’ Association vs. Administrative

Officer and others [AIR 2004 Supreme Court 1426] has held that if it is extended to cover in

the definition of ‘employee’, all kinds of employees, it could have as well used such wide

language as is contained in section 2(f) of the Employees’ Provident Funds and Miscellaneous

Provisions Act, 1952 which defines ‘employee’ to mean any person who is employed for

wages in any kind of work, manual or otherwise, in or in connection with the work of an

establishment. It has been held that non-use of such wide language in the definition of

‘employee’ reinforces the conclusion that teachers are clearly not covered in the said definition.

3. Keeping in view the observations of the Hon'ble Supreme Court, it is proposed to

widen the definition of ‘employee’ in order to extend the benefit of gratuity to the teachers.

Accordingly, the Payment of Gratuity (Amendment) Bill, 2007 was introduced in Lok Sabha

on the 26th November, 2007 and the same was referred to the Standing Committee on Labour

which made certain recommendations. After examining those recommendations, it has been

decided to give effect to the amendment retrospectively with effect from the 3rd April, 1997,

the date on which the provisions of the said Act were made applicable to educational

institutions.

sudhakar.RVS (Advocate)     15 December 2010

Sir

Payment of gratuity to all employees are eligible  who rendered service not less than 5 years and the act never says the non eligibility of gratuity of  the retired employee after his re-employment .

    IN this case ,if the employee already  was in receipt of Gratuity from his previous employer,the same is adjusted against the present  payment of Gratuity ,and the balance only is payable,after getting a certificate from his previous employer as regrds the quantum of Gratuity paid.

     As per the principles of Natural justice, no person / employee is permitted to receive TWO  payments on the same title / under the samke head.

     Keeping inview of the above provisions in view, the eligibility criteria may be decided and payment can be admitted within the ambit of rules.

sudhakar.RVS

Advocate

 

 

 

leenam bansode (law student)     22 October 2011

sir,

can employer take the plea that when he pays salary to the employee for service render by him, why does he need to make additional payment as a payment of gratuity.


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