Umakanthan53
Labour Law & Hr Consultant
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Aayushi92
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i and one of my collegues retired from a goverment aided school in 2006 and 2010 respectively....we worked there for 10 years...are we elegible for claiming graduity now...?
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It was the duty of the school(employer ) to have paid you gratuity on retirement.
Any reason why they did not pay you??
Limitation Act does not apply to payment of gratuity.
You can claim it now also.
By the way it is gratuity and not graduity.
You have not mentioned whether both of you had worked as teachers or otherwise. Moreover since you worked in a Govt.aided school, the Payment of Gratuity Act,1972 is not applicable to you. You would be entitled to gratuity only as per the Death-cum-Retirement Gratuity Rules applicable to Govt. servants..
The definition of 'employee' under the Gratuity Act has been amended to include teachers also within it's purview.However, the member posting the query did not clarify whether he and his colleague were working as teachers or as administrative staff.Since it is a government aided school, as Mr.Umakantan said, probably the gratuity scheme of the State Govt. must be applicable to the School.The member shall clarify it.
B.Saikumar

both of us have worked as teachers for 10 years
and according to the amendment made in gratuity act in 2009 that included teachers... i retired in year 2006 so i was'nt sure if i was eligible for gratuity then...
as per the rules one eligible for gratuity has to send the application for the same either before 30 days of retirement or 30 days after retirement...and i was unsuccessful in doing so..
so can i claim now...?
""i was unsuccessful in doing so..""
Unsuccessful-what does it mean?
You retired in 2006 and in 2009 amendment act was passed to include teachers for gratuity purposes.So probably your other teacher who retired in 2010 is eligible.
Hello Aayushi It appears that the amendment to the Act covering teachers as employees has come into force with effect from April 1997.You are advised to confirm this at your end also.There is no time bar to make a claim for gratuity.On the other hand it is employer's responsibility to pay you gratuity when you are eligible for it. However you need to confirm whether the School is covered by the Government gratuity scheme since it is a government aided school or whether it has it's own gratuity scheme and if not then it is governed by the Gratuity Act.Probably the School might not be aware of the amendment of the Act. You can make an application to the school even now.
B.Saikumar

With effect from 03-04-1997, educational institutions in which 10 or more persons are employed or were employed on any day of the prceding 12 months were specified by the Central Govt as a class of establishments to which the PG Act,1972 shall apply. Therefore, Ayush and his friend can make an application to the Controlling Authority under the Act for the area together with a delay condonation petiton as suggested by Mr.Saikumar. However, confusion arises by the description in the post that the school where they worked and retired was a Govt aided school.
Dear Aayush,

As a teacher, I expected that atleast you should have got this issue clarified from the school office. I can't believe you people could be idle like this for so many years. What I can say. In which state your school is located. Is it Madhya Pradesh ? Can you atleast reveal this secret to us so that we can guide you properly without anymore delay. This has been story of winning the retirement benefits in Karnataka, to thru' this so that your doubts could start clearing now -

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Excerpts from the Hindu.

KARNATAKA, GULBARGA, December 18, 2013

Government concedes aided school teachers’ demand

SPECIAL CORRESPONDENT

HC order on pension fitment to be implemented soon

"A large number of teachers working in aided institutions, including schools, colleges, engineering colleges, industrial training institutes, B. Ed colleges, polytechnics and others, scored a major victory for their long-drawn struggle as the government is said to have given an undertaking before the two-member division bench of the Gulbarga Bench of the Karnataka High Court that it will implement the directions of the High Court and the Supreme Court on pension fitment and other benefits, except the pay, from the date of appointment.

The former MLC from North East Teachers’ constituency and BJP leader Shashil G. Namoshi told a hurriedly convened press conference here on Tuesday that Principal Secretary of Primary and Secondary Education Raj Kumar Kataria had filed an affidavit before the division bench, consisting of Ram Manohar Reddy and Keshav Narayan, that the government would implement the orders of the court and extend all the benefits to teachers working in aided institutions within two months.

The affidavit said that the implementation of court directions would result in an additional burden of more than Rs. 7,000 crore on the State exchequer.

In their standing order, the judges, according to Mr. Namoshi, had said that the government should implement the orders to all eligible teachers.

The judges said that the government should extend the benefits within a period of two months, as mentioned in the affidavit, and the court would not give any extension for the implementation of the court’s directions. Mr. Namoshi urged the government to extend the benefits by revising the pension fitment of teachers who had already retired from service and were denied of their due pension owing to the government’s decision not to take the original date of appointment for pension fitment and other benefits.

He said, one of the teachers, who had been denied pension fitment from the date of his appointment, had approached the Karnataka High Court, seeking its direction to take his services into account from the date of appointment, instead of the date of the government sanctioning the grant-in-aid to the school in which he was working, for pension fitment and other benefits. The Karnataka High Court had upheld the contention of the petitioner and directed the State government to make the fitment of pension and payment of gratuity calculations from the date of appointment of the teacher. Later, the government filed a special leave petition (SLP) before the Supreme Court, which had dismissed the same in August this year.

Thousands of teachers who were appointed in various educational institutions much before they were brought under the purview of the grant-in-aid provisions and the State government, while extending the benefits of grant-in-aid to some of the teachers from the date of their appointment, had denied the same to a large section of teachers and had taken into consideration the date of sanctioning the aid to the respective institution as the date of appointment for fixing the pension and payment of gratuity."

Following is the extract from the amendment made to the Gratuity Act with regard to inclusion of teachers of private edu.institutions: (full text of the bill is attached)

xxx 26. The Committee observe that the extant amendment to the Payment of Gratuity Act, 1972

has been necessitated following the verdict of the Supreme Court adjudicating that teachers of

private educational institutions do not answer description of definition of ‘employee’ under

Section 2 (e) of the Payment of Gratuity Act, 1972. The connotation of ‘employee’ in the

Payment of Gratuity Act, 1972 is not akin to the one given in Section 2(f) of the Employees’

Provident Fund and Miscellaneous Provisions Act, 1952. Therefore, it was essential to widen

the definition of ‘employee’ in order to extend the benefits of gratuity to teachers of private

educational institutions. To achieve the above objective, the amendment has been proposed in

the Bill. Although the Committee are broadly in agreement with the proposed amendment of

Section 2 (e), they are apprehensive that the replacement of some portion of definition of 2(e)

of the Payment of Gratuity Act with another portion of 2(f) of EPF & MP Act, 1952 is likely to

leave some lacuna therein. The Committee, therefore, call upon the Government to ensure that

the new definition of the ‘employee’ being proposed in the Bill, should be unambiguous,

encompassing with clear reference to the targetted group, i.e. teachers of the private educational

institutions in the definition itself so as to avoid any misinterpretation in future. xxxx

Annexure-I

Bill No.90 of 2007

Short title.

THE PAYMENT OF GRATUITY (AMENDMENT) BILL, 2007

A

BILL

further to amend the Payment of Gratuity Act, 1972.

BE it enacted by Parliament in the Fifty-eighth Year of the Republic of India as follows:—

1. (1) This Act may be called the Payment of Gratuity (Amendment) Act, 2007.

2. In the Payment of Gratuity Act, 1972, in section 2, for clause (e), the following clause shall be

substituted, namely:—

'(e) "employee" means any person (other than an apprentice) who is

employed for wages, whether the terms of such employment are express or implied, in any kind

of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield,

plantation, port, railway company, shop or other establishment, to which this Act applies, 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;'.

Amendment of section 2.

39 of 1972.



23

STATEMENT OF OBJECTS AND REASONS

The Payment of Gratuity Act, 1972 (the Act) provides for payment of gratuity to

employees employed in any establishment, factory, mine, oilfield, plantation, port, railway

company or shop employing 10 or more workers.

2. The Central Government had extended the provisions of the Act to the educational institutions

employing 10 or more persons vide this Ministry's notification No. S.O. 1080 dated 3rd April, 1997.

The Hon'ble Supreme Court in its judgment dated 13th January, 2004, in Ahmedabad Private

Primary Teachers Association Vs Administrative Officer [AIR 2004 (SC) 1426] held that teachers

are not entitled to gratuity under the Act, in view of the fact that teachers do not answer

description of "employee" who are "skilled", "semi-skilled" or "unskilled". The Supreme Court

observed 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 that definition. Para 26 of the said judgment reads as follows:—

"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. 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.".

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 benefits of gratuity to the teachers, by amending

the same.

4. The Bill seeks to achieve the above objects.

NEW DELHI; OSCAR FERNANDES.

The 7th September, 2007.

24

FINANCIAL MEMORANDUM

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

employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop

employing ten or more workers. The Bill amends the definition of "employee" in section 2(e) of the

Act so that teachers shall also be entitled for payment of gratuity.

2. The responsibility for administration of the Act vests mainly in the State Governments and the

liability for payment of gratuity vests in the employer. The employees of the Central Government

and State Governments who are getting gratuity under any other Act or rules are not covered

under the Act. However, as respects teachers employed by institutions aided by the Central

Government, the liability on employers may involve expenditure from the Consolidated Fund of

India. The exact expenditure to be incurred on this account cannot be estimated at this stage.

3. Apart from the above, no other expenditure of recurring or non-recurring nature from the

Consolidated Fund of India is envisaged.

25

ANNEXURE

EXTRACT FROM THE PAYMENT OF GRATUITY A CT, 1972

(39 OF 1972)

* * * * *

2. In this Act, unless the context otherwise requires,—

* * * * *

(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,

semi-skilled, or un-skilled, 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;

* * * * *

APPLICABILITY OF THE PAYMENT OF GRATUITY ACT, 1972

IN

EDUCATIONAL INSTITUTIONS

‘NOTIFICATION NO. 5-42013/1/95-ss.ii dated 3RD APRIL, 1997.-In exercise of the powers

conferred by Cl. (c) of sub-clause (3) of S. 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the

Central Government hereby specifies the educational institutions in which ten or more persons are

employed or were employed on any day preceding 12 month as a class of establishments to which

the said Act shall apply with effect form the date of publication of this Notification.

Provided that nothing contained in this Notification shall affect the operation of the Notification of

the Ministry of Labour S. O. 239 dated 8thh January, 1982.’

32

20. An educational institution, therefore, is an ‘establishment’ notified under S. 1(3) (c) of the

Payment of Gratuity Act, 1972. On behalf of the Municipal Corporation, it is contended that the

only beneficial effect of the Notification issued under S. 1(3) (c) of the Act of 1972, is that such nonteaching

staff of educational institutions as answer the description of any of the employments

contained in the definition Cl. 2(e), would be covered by provisions of the Act. The teaching staff

being not covered by the definition of ‘employee’ can get no advantage merely because by

Notification ‘educational institutions’ as establishments are covered by the provisions of the Act.

NOTIFICATION OF APPLICABILITY OF THE PAYMENT OF GRATUITY ACT, 1972 TO

EDUCATIONAL INSTITUTIONS

{PUBLISHED IN THE GAZETTE OF INDIA, PART-II SECTION 3(i) OF THE GAZETTE OF

INDIA ON 19TH APRIL 1997}

Government of India/Bharat Sarkar

Ministry of Labour/Shram Mantralaya

New Delhi, the 3rd April, 1997.

NOTIFICATION

S.O. 1080….-In exercise of the powers conferred by clause (c) of sub-section (3) of section 1 of the

Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specifies the

educational institutions in which ten or more persons are employed or were employed on any day

preceding 12 months as a class of establishments to which the said Act shall apply with effect from

the date of publication of this notification.

Provided that nothing contained in this notification shall affect the operation of the notification of

the Ministry of Labour S.O. 239 dated 8th January, 1982.’

(F. No. S-42013/1/95-SS.II)

Sd/.

(J. P. Shukla)

UNDER SECRETARY TO GOVERNMENT OF INDIA

To

The Manager,

Government of India Press,

Ring Road, Mayapuri,

New Delhi
Pl.see the whole document attached for your knowledge.

Attached Files
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