Gratuity is a lump sum payment to an employee when he retires or leaves service. It is basically a retirement benefit to an employee so that he can live life comfortably after retirement. However, under the Gratuity Act, gratuity is payable even to an employee who resigns after completing at least 5 years of service.
In DTC Retired Employees v. Delhi Transport Corporation 2001(4) SCALE 30 = 2001 AIR SCW 2005, it was observed that gratuity is essentially a retiring benefit which, as per statute, has been made applicable on voluntary resignation as well. Gratuity is a reward for good, efficient, and faithful service rendered for a considerable period.
THE ACT PROVIDES FOR MINIMUM GRATUITY ONLY - The Gratuity Act provides only for the minimum gratuity payable. If an employee has the right to receive higher gratuity under a contract or under an award, the employee is entitled to get higher gratuity. [Section 4(5)].
Employers liable under the scheme - The Act applies to every factory, mine, plantation, port, and railway company. It also applies to every shop and establishment where 10 or more persons are employed or were employed on any day in the preceding 12 months. [Section 1(3)]. Since the Act is also applicable to all shops and establishments, it will apply to motor transport undertakings, clubs, chambers of commerce and associations, local bodies, solicitor's offices, etc., if they are employing 10 or more persons.
Employees eligible for gratuity - '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 unskilled, manual, supervisory, technical, or clerical work, whether the terms of such employment are express or implied, and whether such person is employed in a managerial or administrative capacity. However, it does not include any Central/State Government employee. [Section 2(e)]. Thus, the Act is applicable to all employees - workers as well as persons employed in an administrative and managerial capacity.
Gratuity is payable to a person on (a) resignation (b) termination on account of death or disablement due to accident or disease (c) retirement (d) death. Normally, gratuity is payable only after an employee completes five years of continuous service. In the case of death and disablement, the condition of a minimum 5 years' service is not applicable. [Section 4(1)].
The Act is applicable to all employees, irrespective of the salary.
Amount of gratuity payable - Gratuity is payable at 15 days' wages for every year of completed service. In the last year of service, if the employee has completed more than 6 months, it will be treated as a full year for the purpose of gratuity. In the case of a seasonal establishment, gratuity is payable at 7 days' wages for each season. [Section 4(2)].
Wages shall consist of basic plus D.A, as per the last drawn salary. However, allowances like bonus, commission, HRA, overtime, etc., are not to be considered for calculations. [Section 2(s)].
In the case of employees paid on a monthly wages basis, per day wages should be calculated by dividing the monthly salary by 26 days to arrive at daily wages. For example, if the last drawn salary of a person (basic plus DA) is Rs. 2,600 per month, his salary per day will be Rs. 100 (2,600 divided by 100). Thus, the employee is entitled to get Rs. 1,500 [15 days multiplied by Rs. 100 daily salary] for every year of completed service. If he has completed 30 years of service, he is entitled to get gratuity of Rs. 45,000 (Rs. 1,500 multiplied by 30). The maximum gratuity payable under the Act is Rs. 3.50 lakhs (the ceiling was Rs. 1,00,000 which was increased to 2.50 lakhs on 24.9.97 by an ordinance which was later increased to Rs 3.50 lakhs while converting the ordinance into an Act].
MAXIMUM GRATUITY PAYABLE - The maximum gratuity payable is Rs 4 lakhs. [Section 4(3)]. [Of course, the employer can pay more. The employee also has the right to get more if obtainable under an award or contract with the employer, as made clear in Section 4(5)].
INCOME-TAX EXEMPTION - Gratuity received up to Rs. 3.50 lakhs is exempt from Income Tax. Gratuity paid above that limit is taxable. [Section 10(10) of the Income Tax Act]. However, the employee can claim relief u/s 89 in respect of the excess amount.
No Compulsory insurance of gratuity liability - Section 4A provides that every employer must obtain insurance of his gratuity liability with LIC or any other insurer. However, Government companies need not obtain such insurance. If an employee is already a member of the gratuity fund established by an employer, he has the option to continue that arrangement. If an employer employing more than 500 persons establishes an approved gratuity fund, he need not obtain insurance for gratuity liability. However, this Section has not yet been brought into force. Hence, presently, such compulsory insurance is not necessary.
Gratuity cannot be attached - Gratuity payable cannot be attached in execution of any decree or order of any civil, revenue, or criminal court, as per Section 13 of the Act.
(Basic Salary + DA) x 15/26 x No. of service years.