Reg: gratuity
Shaila S. Rao
(Querist) 29 March 2013
This query is : Resolved
Dear Experts,
The co. where I am working is a family run business and there is no rules and regulations followed by them - like no appointment letter - so no employment terms followed.
My question is there are few employees who have already attained the age of superannuation and continuing their services in the company. Is gratuity can be paid until their services in the organisation? for eg. if an employee is physically & mentally fit to work and continues till the age of 65 Yrs - can we calculate Gratuity for his service till 65 yrs?
Also what labour law says continuing an employee in the service without retiring even after attaining the age of superannuation?
With Regards,
Shaila Rao
Isaac Gabriel
(Expert) 30 March 2013
Gratuity cannot be denied if the company is covered by the gratuity act ie.minimum numbur of employees.But it is the employee to prove his employment by records ie.service records,pay bills etc.,
Kumar Doab
(Expert) 30 March 2013
Learned experts have given valuable advice. Kindly follow it, and arrange to prove employment record.
Pls look into the following.
---Payment of Gratuity Act, 1972
(3) It shall apply to¬
Section: 2
Definitions.
(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].
(f) "employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop –
Section: 4
Payment of gratuity.
Section: 4A
Compulsory insurance
The LIC might have obtained complete detail of the employees.
---THE PAYMENT OF WAGES ACT, 1936
13A.
Maintenance of registers and records.
5*[13A. Maintenance of registers and records.-(1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work, performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed.
(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein.]
Has your company been providing pay slip and obtaining signatures?
--SE Act applicable to your state:
e.g.
The Delhi Shops and Establishments Act:
2. Definitions:
(7) “employee” means a person wholly or principally employed, whether directly or
otherwise, and whether for wages (payable on permanent, periodical, contract, piece-rate or commission basis) or other consideration, about the business of an establishment and includes an apprentice and any person employed in a factory but not governed by the Factories Act, 1948 (43 of 1948), and for the purpose of any matter regulated by this Act, also includes a person discharged or dismissed whose claims have not been settled in accordance with this Act;
*5. Registration of Establishments.
(e) the number of employees working about the business of the establishment; and
(f) such other particulars as may be prescribed.
33. Records.—(1) The occupier of every shop or commercial establishment shall, in the
prescribed form and in the prescribed manner, keep exhibited……..
COMMENTS
(a)Particulars and forms of the records required to be maintained under section 33:
The register of employment and wages is required to be kept in Form ‘G’ duly bound and pages serially numbered.
(d) Can an Inspector require an employer to produce the record in his office for
inspection?
34. EMPLOYER TO FURNISH LETTERS OF APPOINTMENT TO EMPLOYEES.
35. Inspection of Registers and calling for information.
36. Powers and duties of the Inspector.
41. Wilfully making false entries.
43. Determination of employer for the purpose of this Act.
COMMENTS
The object of the enactment is to furnish an accurate proof of employment to an employed person and for this object in view, the Legislature provided that the letter of appointment given………..
Failure to issue appointment letters under section 34 of the Act to the employee amounts to ‘unfair labour practice’ resorted to deprive them of the benefits which accrue to them due to the length of their service;
--If IESO Act is applicable to establishment, service card of each employee should be maintained, Tickets/I.Card should be issued.
RAJU O.F.,
(Expert) 30 March 2013
In the instant case, it is doubtful as to the maintenance of service records. Hence there may not be any age for retirement.
