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--
every factory, mine, oilfield, plantation, port and
railway company;
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;
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
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--
belonging to, or under the control of,
the Central Government,
having branches in more than one State,
--------------------------------------------------------------------
-
Ins. by Act 26 of 1984, s. 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
of a factory belonging to, or under the
control of, the Central Government,
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
one year;
1*[(c) "continuous service" means continuous service as
defined in section 2A;]
"controlling authority" means an authority appointed by
the appropriate Government under section 3;
"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.]
--------------------------------------------------------------------
-
Subs. by Act 26 of 1984, s. 3.
Omotted by Act 34 of 1994, s. 4 (w.e.f. 25-5-1994).
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
been so appointed, the head of the Ministry or the
Department concerned,
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,
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;
"factory" has the meaning assigned to it in clause
(m)
of section 2 of the Factories Act, 1948 (63 of
1948);
"family", in relation to an employee, shall be deemed to
consist of--
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
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;
"major port" has the meaning assigned to
it in clause (8) of section 3 of the Indian
Ports
Act, 1908 (15 of 1908);
"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);
"notification" means a notification
published in the Official Gazette;
"oilfield" has the meaning assigned to it
in clause (e) of section 3 of the
Oilfields
(Regulation and Development) Act, 1948 (53 of
1948);
"plantation" has the meaning assigned to
it in clause (f) of section 2 of the
Plantations
Labour Act, 1951 (69 of 1951);
"port" has the meaning assigned to it in
clause (4) of section 3 of the Indian Ports
Act,
1908 (15 of 1908);
"prescribed" means prescribed by rules
made under this Act;
"railway company" has the meaning
assigned to it in clause (5) of section 3 of the
Indian Railways Act, 1890 (9 of 1890);
"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. 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;
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--
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
two hundred and forty days, in any other
case;
(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--
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
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--
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;
he has been on leave with full wages, earned in the
previous year;
he has been absent due to temporary disablement caused
by accident arising out of and in the course of his employment; and
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.]
where 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 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.
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.
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,--
on his superannuation, or
on his retirement or resignation, or
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
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
--------------------------------------------------------------------
-
Ins. by Act 26 of 1984, s. 4.
Omitted by Act 22 of 1987 s. 3 (w.e.f. 1-10-1987).
Added by s. 3, ibid. (w.e.f. 1-10-1987).
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
by fifteen.]
The amount of gratuity payable to an employee shall not exceed 4*[one lakh rupees].
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.
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.
Notwithstanding anything contained in sub-section (1),--
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;
the gratuity payable to an employee 1*[may be wholly or
partially forfeited]--
if the services of such employee have
been terminated for his riotous or disorderly
conduct or any other act violence on his part, or
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.
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.
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).
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).
(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.
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.
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
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.] --------------------------------------------------------------------
-
Subs. by Act 25 of 1984, s. 3 (w.e.f. 1-7-1984).
Ins. by Act 22 of 1987, s. 4 (w.e.f. 1-10-1987).
Subs. by s. 4 ibid., for "twenty months' wages" (w.e.f. 1-10-1997).
Subs. by Act 34 of 199, s. 3, for "fifthy thousand" (w.e.f. 24-5-1994).
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).
Ins. by 22 of 1987, s. 5, (w.e.f. ....... ).
Re-numbered by Act 26 of 1984, s. 5.
Ins. by s. 5, ibid.
Ins. by Act 22 of 1987, s. 6 (w.e.f. 1-10-1987).
529
6.
Nomination.
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.
An employee may, in his nomination, distribute the amount of
gratuity payable to him under this Act amongst more than one nominee.
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.
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.
A nomination may, subject to the provisions of sub-sections
(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.
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.
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.
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
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--
to the applicant where he is the employee; or
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.
For the purpose of conducting an inquiry under sub-section
(4), the controlling authority shall have the same powers as are
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:--
enforcing the attendance of any person or examining him
on oath;
requiring the discovery and production of documents;
receiving evidence on affidavits;
issuing commissions for the examination of witnesses.
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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Explanation Omitted by Act 25 of 1984, s. 4 (w.e.f. 1-7-84).
Ins. by s. 4, ibid. (w.e.f. 1-7-1984).
Subs. by s. 4, ibid. (w.e.f. 1-7-1984).
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
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.
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.
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:-
-
require an employer to furnish such information as he
may consider necessary;
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;
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;
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.
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).
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
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
--------------------------------------------------------------------
-
Ins. by Act 25 of 1984, s. 4 (w.e.f. 1-7-1984).
Ins. by s. 5, ibid. (w.e.f. 1-7-1984).
Subs. by Act 22 of 1987, s. 8 (w.e.f. 1-10-1987).
Added by s. 8, ibid. (w.e.f. 1-10-1987).
Subs. by s. 9, ibid. (w.e.f. 1-10-1987).
532
the actual offender brought before the court at the time appointed for
hearing the charge; and if, after the commission of the offence has
been proved, the employer proves to the satisfaction of the court--
that he has used due diligence to enforce the execution
of this Act, and
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:
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.
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.
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.
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Subs. by Act 34 of 1994, s. 4 (w.e.f. 24-5-1994).
Ins. by Act 25 of 1984, s. 6 (w.e.f. 1-7-1984).
533
14.
Act to override other enactments, etc.
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.
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.