Dear all,
If go through the definations about the applicability, in my opinion Gratuity is applicable in your case even the number is less than 10 today, subject to completion of 5 years of service by the individual. Look at the definations,
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 Republic of India as follows :
Section: 1
Short title, extent, application and commencement.
(1) This Act may be called the Payment of Grataity 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¬ -
(a) every factory, mine, oilfield, plantation, port and railway company;
(b) 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;
(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, or, any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.
(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 date as the Central Government may, by notification, appoint.
Section 3(b) clearly says " ten or more persons are employeed or were emplyeed".
Better to make the 5 years completed employees eligible to avoid further legal consequences.
Ulhas Chandratre
Sr.HR Professional, Pune