Eligibility of MLAs and MPs for Gratuity
I recently failed an interview because of one question. Please, can anybody provide an answer if they know, so it can be useful to me and others?
1. Are MLAs and MPs eligible for Gratuity?
2. If the answer is "NO," why? When are other government employees eligible?
3. When they serve for 5 years, why are they not eligible?
4. If the answer is "YES," on what basis can the government give Gratuity to them?
Regards,
Nandi
From India, Hyderabad
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I recently failed an interview because of one question. Please, can anybody provide an answer if they know, so it can be useful to me and others?
1. Are MLAs and MPs eligible for Gratuity?
2. If the answer is "NO," why? When are other government employees eligible?
3. When they serve for 5 years, why are they not eligible?
4. If the answer is "YES," on what basis can the government give Gratuity to them?
Regards,
Nandi
From India, Hyderabad
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The question seems to be funny and at the same time has a lot of sense. Therefore, I would like to answer. The answer is NO, they are not eligible for gratuity either under the Government Gratuity Rules or the Payment of Gratuity Act because MLAs or MPs are not employees like any other government servants but are representatives of people of their respective constituencies. They are not employed to get something done for the organization but are engaged to represent the people. Moreover, selection and election are two different things, and an employee is selected for a predefined assignment after a recruitment process, whereas an MLA/MP is not selected for doing a particular work.
Even though they are not given a fixed sum at the time of their completion of tenure, they are given a lifetime pension! Therefore, if any MLA or MP happens to read this, I am afraid, if they raise this as a demand in the Lok Sabha or Assembly so that adequate amendments shall be made (for which there will not be any flag difference and all will unite) to the relevant Acts.
It is very unfortunate that we had to wait for long years to get the teachers in the fold of the Payment of Gratuity Act. Though the Act has been amended in their favor very recently, the verdict in the Allahabad Private School Management Associations case in which the Apex Court had said that teachers are not workmen or employees since they were doing a 'noble profession' remained in force till 2010. In a similar way, these politicians are also engaged in a noble profession, and therefore, I feel that their nobility may be continued and do not make them to the category of employees!
Regards,
Madhu.T.K
From India, Kannur
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4602Even though they are not given a fixed sum at the time of their completion of tenure, they are given a lifetime pension! Therefore, if any MLA or MP happens to read this, I am afraid, if they raise this as a demand in the Lok Sabha or Assembly so that adequate amendments shall be made (for which there will not be any flag difference and all will unite) to the relevant Acts.
It is very unfortunate that we had to wait for long years to get the teachers in the fold of the Payment of Gratuity Act. Though the Act has been amended in their favor very recently, the verdict in the Allahabad Private School Management Associations case in which the Apex Court had said that teachers are not workmen or employees since they were doing a 'noble profession' remained in force till 2010. In a similar way, these politicians are also engaged in a noble profession, and therefore, I feel that their nobility may be continued and do not make them to the category of employees!
Regards,
Madhu.T.K
From India, Kannur
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First of all, MPs & MLAs are not covered under the Payment of Gratuity Act. That's it. See the eligibility conditions:
"Eligibility Conditions:"
"(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, on 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."
In this, where is Parliament & Legislature (do they work there only?)
Secondly, there is no "Employer - Employee" relationship (who is the boss and who are the employees/workmen?)
(d) "controlling authority" means an authority appointed by the appropriate Government under section 3;
(e) "employee" means any person (other than an apprentice) employed on wages, [3] [***] 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, [4] [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].
Explanation: [5] [***]
(f) "employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company, or shop -
Continuous Service Requirement:
Thirdly, every MP/MLA, if otherwise eligible, should have "Continuous Service" of 5 years.
[2] [(c) "continuous service" means continuous service as defined in section 2A;] For the purposes of this Act, -
"(1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order [***] treating the absence as a break in service has been passed in accordance with the standing order, rules, or regulations governing the employees of the establishment), lay off, strike, or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act."
Under the Indian Constitution, no MP or MLA can have 5 years of minimum service, as the House will expire before a 5-year term under normal circumstances.
Did you go through the Gratuity Bare Act before the interview? You should have refreshed what you read beforehand. Some presence of mind should have been ignited to answer such general questions. Otherwise, you should have answered simply, "MPs & MLAs are not eligible for gratuity under the Gratuity Act." That's all.
Better luck next time, pal.
Regards,
kumar.s.
From India, Bangalore
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"Eligibility Conditions:"
"(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, on 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."
In this, where is Parliament & Legislature (do they work there only?)
Secondly, there is no "Employer - Employee" relationship (who is the boss and who are the employees/workmen?)
(d) "controlling authority" means an authority appointed by the appropriate Government under section 3;
(e) "employee" means any person (other than an apprentice) employed on wages, [3] [***] 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, [4] [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].
Explanation: [5] [***]
(f) "employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company, or shop -
Continuous Service Requirement:
Thirdly, every MP/MLA, if otherwise eligible, should have "Continuous Service" of 5 years.
[2] [(c) "continuous service" means continuous service as defined in section 2A;] For the purposes of this Act, -
"(1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order [***] treating the absence as a break in service has been passed in accordance with the standing order, rules, or regulations governing the employees of the establishment), lay off, strike, or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act."
Under the Indian Constitution, no MP or MLA can have 5 years of minimum service, as the House will expire before a 5-year term under normal circumstances.
Did you go through the Gratuity Bare Act before the interview? You should have refreshed what you read beforehand. Some presence of mind should have been ignited to answer such general questions. Otherwise, you should have answered simply, "MPs & MLAs are not eligible for gratuity under the Gratuity Act." That's all.
Better luck next time, pal.
Regards,
kumar.s.
From India, Bangalore
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Gratuity Form I.doc