Umakanthan53
Labour Law & Hr Consultant
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Bhartiya Akhil
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I am working for an organization for last 11 years. Please tell whether I will be eligible for gratuity or not as various states including U.P which have suspended labour laws including Gratuity payment act 1972.
From India, New Delhi
As per provisions of PGA, 1972, you are entitled to receive gratuity payment upon resignation/termination/retirement.
From India, Aizawl
Dear Nair Sir
I am planning to resign. But I am afraid that UP govt. has suspended labour laws for 3 years. Hope you are aware. I actually want to know what does this suspension mean.
Do I stand to loose my gratuity for past 11 years.
I will appreciate an elaborated reply from you.

From India, New Delhi
Dear Nitin-Jain,
My advise to you to hold on to your planing of resigning in current situation. This is not the right time to have any change. We all are passing through very uncertain time. Due to this Covid 19 pandemic, there is a great impact every where. The economic and industrial activity is standstill. Under the circumstances it will not be a wise decision to quit a stable job of 11 years and jump in to uncertainty unless you have some serious issues with your current employer and you can not get along.
Now coming to the Ordinance by UP Govt suspending the labour laws for 3 years. This Ordinance is applicable to all factories and establishments engaged in manufacturing process. It is not clear from your post whether you are engaged in manufacturing process or otherwise.
I am really confused on this Ordinance and its impacts. It will take some time to understand the impact of this Ordinance, by person like me.
By this Ordinance the Labour Laws though suspended for three years, what I feel, your payment of gratuity which is the award for your long service is protected but the date of payment is differ to three years later.

From India, Mumbai
Thanks Akhil for a detailed reply. Any expert who can comment on this and real impact of this ordinance.
From India, New Delhi
Dear Nitin Jain,

I would like to inform you that no doubt the UP Govt. has issued an ordinance and was approved by the Governor of U.P. Since the labour Laws are in the Concurrent List, any amendment requires the assent of the President. The Ordinance was sent to the President for his assent but the same has not been accorded.

From the statements issued by the Labour Ministry, the assent will not be accorded as by an ordinance, Labour Laws cannot be suspended like this. Until and unless assent is accorded by the President, the Ordinance cannot come into force. Therefore, as on date no Labour Law is suspended in U.P.

I hope it is clear and if you resign, your employer is liable to pay you gratuity within 30 days under the provisions of Payment of Gratuity Act, 1972.

If any further clarification is needed, you can contact me on my no. 7830718856 or on my mail: sensharma .

Thanks

S. SENSHARMA,
Industrial Law & HR Consultant, Meerut

From India, undefined
Dear Nitin,

As rightly observed by Mr.Sensharma, the action of suspending the Labor Laws passed by the Parliament by the State Governments of U.P and others by means of promulgation of ordinances under Article 213 of the Constitution requires the assent of the President of India. I am of the humble opinion that the reverse migration of the inter-state migrant workmen due to Covid-19 outbreak cannot be a " circumstance" which render it for the Governor to take such an immediate action of suspending all major Labor Laws for a period of 3 years as contemplated under Article 213(1) but only an attempt to set the clock back to 100 years and not even a staunch protagonist of Labor law reforms would appreciate such a move of anarchy in industrial employment.

Coming to the issue pertaining to payment of gratuity to a resigning employee as of now, the repeals and saving clause under section 7 of the U.P Ordinance,2020 protects the previous operation of the various labor laws. Therefore, you are entitled to gratuity on your resignation now.

From India, Salem
Dear S. SENSHARMA,

Thanks for your clarification on the ordinance.

I had a same question in my mind how any State Government can bring such kind of Ordinance and suspend the Laws enacted by the Central Government.

I was aware that there is no assent yet to it by the President. Still without applying my mind as to this has no effect as on date and stated that by this Ordinance the Labour Laws though suspended for three years, the payment of gratuity which is the award for long service is protected but the date of payment is differ to three years later.

Thanks again for your post which helped to correct myself.

But still I advise the queriest to hold on his plan for change of job in current situation.

From India, Mumbai
Umakanthan Sir,

Thanks for drawing the attention to Section 7 of the Ordinance under the heading of "Repeal and Savings" protecting previous operations of various Labour Laws. From this, it is crystal clear that the payment of Gratuity can not be touched upon.

After reading this Section, one question came in my mind. By this section previous operation of Labour Laws are not affected then what is suspended?

What I feel, instead of suspending the Labour Laws, the new list of rules are framed by this Ordinance under various Labour Laws as enumerated in Section 3 of the Ordinance.

Is my understanding right or am I making conceptual mistake?

From India, Mumbai
Dear Akhil,

The preamble of the Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance,2020 states that it is an ordinance to exempt factories and other manufacturing establishments from application of certain labour laws for a period of three years. Therefore this ordinance is not applicable to other type of industrial establishments.

Section 3 of the ordinance exhaustively enumerates the provisions of certain Labor Laws still to be complied with while bringing all others laws into the fold of total exemption for a period of three years. "The previous operations of various labor laws" mentioned u/s 7 , in my opinion, refers to the accrued benefits materializing during the period of exemption. Therefore, what stands exempted is the current compliance of the provisions of the Act and Rules pertaining to maintenance of registers and records and new enrollment into any Fund and the like only.

Firstly if the organization where the questioner works is not a factory, this ordinance would not at all be applicable. Second, even if it is an exempted establishment, the benefit of gratuity in case of termination of his employment is an accrued benefit and as such its payment now is not affected by virtue of the saving clause of sec.7.

From India, Salem

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