R.N.KholaDear Miss. Smita,
You have not mentioned the nature of your project work. Whether any construction work is going on ? Therefore, you are advised to go through section 1 of the P G Act, 1972 on applicability.
From India, Delhi
The project is to set up a Plant which will produce Iron rods and the particular employee is in Civil Department. Though few of the project has been completed but the opertion is not yet started full fledge.
From India, Guwahati
After going through section 1(3) of the Payment of Gratuity Act, 1972 it does not seems to be covered under this Act.
Opinion/ comments submitted as requested.
From India, Delhi
Section 2 (e) ( Maharastra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 - Sec.2(17) amd (26)- The definition of "Employee" under Section 2(e) of the Act, includes and covers in its compass the class of teachers employed in an establishment of a school and therefore entitled to the benefits of payment of gratuity.
Maharastra Employees of Private Schools ( Conditions of Service Regulations) Act, 1977 is a special statute for the benefit of the school employees, School managemetn, the society and the standard of education.
The Provisions of MEPS Act will have to be simultaneously read with the provisions of the Payment of Gratuity Act, as mutually supplemental to each other to achieve the object of the enactments and the constitutional goal mandated in Chapter 4 of the Schools Act. Therefore, it was held that the Payment of Gratuity Act applies to all employees and teachers of the recognized schools governed by the State Act. The respondent - teachers were held entitled to receive their gratuity from the petitioners accordingly.
Case: General Education Academy, Chembur, Mumbai- V - Sudha Vasudeo Desai and others. 2001 (11) L.L.J. 273 (BOM).
AT THE SAME TIME THE UNDER GIVEN CASE JUDGEMENTS SAY TEACHERS ARE NOT ENTITLED FOR GRATUITY BENEFITS AS THEY ARE NOT EMPLOYEES.
1_) Section 2(e) - Educational Institutions also employ persons other than teachers. Section 4 of the Act requires payment of gratuity of an "employee" and unless a person is an "employee", as per the definition contained in Section 2(i), he can have no claim for gratuity. The respondents - retired teachers (not being such employees) were held not entitled to claim gratuity under the Gratuity Act. CASE PRONOUNCED " H.E. Education Socierty , Barkheda. Bhopal - V - Appellate Authority under Payment of Gratuity Act and Another, (2001) 1. L.L.J. 691 (M.P).
2) Section 2(e) of Gratuity Act _ The authority below was held to have exceeded its jurisdiction in conferring the benefit of the ACt to a teacher although such teacher cannot be said to be an employee within the meaning of the Act. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Thus a teacher cannot be termed as an employee. CASE HELD " Seth Soorajmal Jalan Balika Vidyalaya (Secondary School) and Another - V - Controlling Authority and others. ( 2001) I. L.L.J. 1249 (Cal).
I suggest you to kindly go through your respective State Act to understand whether an provision is given to schools teacher to get gratuity benefits.
From India, Visakhapatnam
I have a questions. I am working in a software firm. One of our employee worked with India office for 2 yrs, was sent on H1 B to US office for 2 yrs rejoined India office to work for 1.5 yrs. Is this employee eligible for gratuity?
From India, Hyderabad
If the employer have worked with the same employer for five years or more continuously with out any break in service/ with out taking any full & final in between the service period as per section 2A of the P G Act, 1972 then he is eligible to have gratuity from the employer.
From India, Delhi
essykkrAs far as concern about the applicability of Gratuity in respect of Contractual Employee, in my opinion the same is applicable. Let me clarify the same. first will go throught he applicabily section of the Act which says that:-
1,(3)(b);- Every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishment in a state, in which ten or more persons are employeed, or were employed,on any day of the preceding twelve months;-
(c) such other establishment or class of establishment ,in which ten or more employees are employed ,or were employed, on any day of the preceding of twelve months,as the central Govt may by notification,specify in this behalf.
Now please go through the defination of employee within the same act as says;-
2(e) 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,semiskilled,or unskilled,manual,supervisory,technical,or clerical work,whether the term of employment are empressed or implied,(and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who hold a post under central Govt or a state govt.and is governed by any other Act or by any rules providing for payment of Gratuity.
So if we take in consideration of both these two section, it is clear that there is no inclusion of contractual employee from the defination of employees, the same is implicit within the defination of employee under the Act, any person employed irespective of their status is eligible for payment gratuity subject to condition of 5 years of sevice. there are also judicial pronauncement the same has been held, i will come with that latter.
in case of Payment of Bonus Act the same is also applicable to contract labour, it has been held by Supreme Court. i have gone through those judgments. will clarify you.
ShimlacharlieGratuity For Contract Labour
It is agreed that Gratuity is not payable for service less than five years. Since contract labour as the name suggests is supposed to be for just short periods, perhaps for this reason it was not included in the Payment of Gratuity Act. However, Section 25 F (b) of the Industrial Disputes Act, 1947 clearly mandates that the workman has been paid at the time of retrenchment compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months; and
Thus every contract worker becomes entitled for this compensation , which in a way compensates the worker, may be not fully.
From India, Delhi
manu82_89I have a question for all law experts out there. The term teacher has not been included in the definition of employee under the Payment of gratuity Act. How will a recently retired teacher from private school prove that he/she is eligible for gratuity. What references should be given for that.
From India, Chandigarh
ashishacharjeeDear Madam / Sir,
Hi, I have a question connected to the topic.
A person over superannuation age (he is 60 Yrs of age) has joined our company.
Is the company to make provision for gratuity in his case?
Will he be entitled for gratuity in case he serves for 5 yrs?
Thanks & Regards
From India, Pune