LexThe West Bengal Employees' Payment Of Compulsory Gratuity Act, 1971
West Bengal · state statute
Open in Lexace · Ask the AI about this actRegis:tered No. G207 No. 410C(V) tkvo, 4,44 4- *tit Ci Extraordinary Published by Authority BHADRA 6 I SATURDAY, AUGUST 28, 1971 [SAKA 1893 'ART V.—Acts of the Parliament of India assented to bythe President and Acts enacted and Orditrances promulgated by the President. Government of India MINISTRY OF LAW AND JUSTICE (Legislative Department) New Delhi, the 28th August, 19711Bhadra 6, 1893 (Saka). The following President's Act enacted on the 28th August, 1971, is published for general information:— THE WEST BENGAL EMPLOYEES' PAYMENT OF COMPULSORW GRATUITY ACT, 1971. No. 7 or 1971 Enacted by the President. in the Twenty-second Year of the) Republic of India. :11 of 1971. 63 of 1548. 611 of 1951. West Bengal AO XIII of 19113. An Act to provide for a uniform scheme of retirement benefit for employees engaged in factories, plantations or shops and establishments and for matters connected therewith. or incidental thereto. In exercise of the powers conferred by section 3 of the West Bengal State Legislature (Delegation of Powers) Act. 1971. the President is pleased to enact as follows:- 1. (1) This Act may be caked the West Bengal Em- Short title, ployecs' Payment of Compulsory Gratuity Act, 1971. extent and apica. t2) It extends to the whole of the State of West Bengal. tion. pt (3) It shall apply to— (a) any factory as defined in clause (m) of section 2 of the Factories Act, 1948; (b) any plantation as defined in clause (f) of section 2. of the Plantations Labour Act. 1951; (c) any shop or establishment as defined in the West Bengal Shops and Establishments Act, 1963. in which ten or more persons are employed, I d32(h) THE CALCUTTA GAZETTE, EXTRAORDINARY, AUGUST 28, 1971 [PART Dofini- tiono. 2. In this Act, unless the context otherwise requires,— (a) "Collector" means the Collector of the district in which the factory, plantation, shop or establish- ment is situated and in the case of a factory, plantation, shop or establishment situated in Cal- cutta means the Collector of the district of 24-Parganis. Explanation.—For the purposes of this Act, "Calcutta" means the town of Calcutta as defined in the Cal- 8>ngal .A.et cutta Police Act, 1866, and includes the suburbs of IV of 1866. the town of Calcutta as defined by notification made '1866 ; der section 1 of the Calcutta Suburban Police Act, Bengal Aot. II of 1866. (b) "completed year of service" means .continuous ser- vice for one year ; kc) "continuous service" means uninterrupted service and includes service which is interrupted by sickness, accident, leave, strike which is not illegal or a lock o'ut or cessation of work not due to any fault of the employee concerned ; (d) "controlling authority" means an authority appointed, by the State Government under section 3 ; (e) "employee" means any person (other than an appren- tice) employed on wages, not exceeding rupees seven hundred and fifty per mensem, in any fac- tory, plantation, shop or establishment to do any skilled, semi-skilled or unskilled manual, super- visory, technical or clerical work, whether the terms of such employment are express or implied, but does not include any such person who is employed in a managerial or administrative capa- city, or who holds a civil post under the Central, or State Government, or who is subject to the Air Force Act. 1950, the Army Act, 1950, or the Navy Act, 1957; (/) "employer" means— ,i) in relation to any factory, plantation, shop or establishment which is owned or managed by the Central or the State Government, a person' or authority appointed by such Government for the supervision and control of employees or where no person or authority has been so appointed, the head of the Ministry or the Department concerned ; (ii.) in relation to any factory, plantation, shop or establishment owned or managed by any local authority, the person appointed by such autho- rity for the supervision and control of employees. or where no person has been so appointed, the chief executive officer of the local authority ; (iii) in any other case, the person, who or the authority which has the ultimate control over the affairs of the factory, plantation, shop or establishment and where the said affairs are entrusted to any other person whether called a manager, manag- ing director_ managing agent, or by any other name, such person ; (,) "family", in relation to an employee, shall be deemed to consist of— (1) in the case of a male employee, himself, his wife, his children, whether married or unmarried, his dpnprninnf narpntc and the Ividiaw • and rhildrpn 45 of MO. 46 of 1 850- 62 of 1957. PART V] THE CALCUTTA GAZETTE, EXTRAORDINARY, AUGUST 28, 1971 (ii) in the case of a female employee, herself, her hus- band, her children, whether married or un- married, her dependent parents and the depen- dent parents of her husband and the widow and. children of her predeceased son, if any: Provided that if a female employee, by a notice in writing to the controlling authority, expresses her desire to exclude her husband from her family, the husband and his dependent parents shall no longer be deemed, for the purposes of this Act, to be included in the family of such female employee unless the said notice is sub- sequently withdrawn by such female employee. Explanation.—In either of the above two cases if the child of an employee has been adopted by an- other person and if under the personal law of the adopter, adoption is legally recognized, such child shall be considered as excluded from the family of the employee ; (h) "notification" means a notification published in the Official Gazette ; (i) "prescribed" means prescribed by rules made under this Act ; (1) "retirement" means termination of the service of an employee for any cause, but does not include superannuation ; (k) "superannuation" means the termination of the ser- vice of an employee by the e employer,— ki) when the employee attains such age as is fixed in the contract or. conditions of service as the age of superannuation ; and (ii) in any other case, when the employee attains the age of fifty-eight years ; (/) "wages" means all emoluments which are earned by an employee while on duty or on leave in accor- dance with the terms and conditions of his em- ployment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and night allowance: 3. The State Government may, by notification, appoint any officer, not below the rank of a Deputy Labour Commis- sioner, to be a controlling authority who shall be responsible. for the administration of this Act and different controlling authorities may be appointed for different areas. 4. (1) Gratuity shall be payable to an employee— (a) on his superannuation, kb) on his retirement or resignation, (c) on his death or total disablement due to accident or disease, after completion of not less than five years of continuous service: Provided that the completion of continuous service of five Controlling authority. Payment o f gratuity. 1.1332(j) THE CALCUTTA GAZETTE, EXTRAORDINARY, AUGUST 28, 1971 [PART V Explanation.—Po i- the purposes of this section, total dis- ablement means such disablement as permanently incapa- citates an employee for all work which he was capable of performing before the accident or disease resulting in such disablemen (2) Notwithstanding anything contained in sub-section (1). no gratuity shall be payable to an employee whose employ- ment has been terminated for his gross misconduct. Explanation.—For the purpose of sub-section (2), "gross misconduct" means,— (a) any act or wilful omission on the part of the employee resulting in loss or damage to. or destruction of, property belonging to or owned by the employer ; Or Power to exempt. Nomina- tion. (b) any serious act of violence on the part of the em- ployee ; or (r) any act on the part of the employee which constitutes an offence involving moral turpitude punishable under the Indian Penal Code. (3) In the case of death of an employee, the gratuity shall be payable to the nominee of the employee or in the absence of a nominee to his heirs. (4) The employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned, for every completed year of service or part thcreof in excess of six months: Provided that the amount of gratuity payable to an em- ployee shall not exceed fifteen months' wages: Provided further that nothing in this section shall affect the right to any better terms of gratuity or retirement benefits under any award or agreement or contract with the employer. 5. The State Government may, by notification and sub- ject to such conditions as may be specified in the notification, exempt any factory. plantation, shop or establishment to which this Act applies from the operation of the provisions of this Act if, in the opinion of the State Government, the employees in such factory. plantation, shop or establishment are in receipt of benefits not less favourable than the benefits conferred under this Act. 6. i I) Each employee who has completed one year of service shall make. within such time as may be prescribed, nomination for the purpose of sub-section (3) of section 4 in such form arid in such manner as may be prescribed. (2) An emplo ,,ee may in his nomination distribute, the amount of gratuity nayable to him under this Act amongst more than one nominee. (3) If an employee has a family at the time of making a nomination, the nomination shall be in favour of one or more members belonging to his . family, and any nomination made by such employee in favour of a person not belonging to his family shall be void. (4) If at the time of making a nomination the employee ks no family. the noinina!inn may be in favour of any person or per sons but if the emp!oyee subsequently acquires a family, such nomination shall forthwith become invalid and the employee shall ma!;.., ‘.., - thin such time as may be prescribed, a fresh' nomination ir' favour of one or More members laelon6- ing to his faMily. 45 of 1860. 'MIT V] TfIE CALCUTTA GAZETTE, EXTRAORDINARY, AUGUST 28, 1971 1632(k) (5) A nomination may, subject to the provisions of sub-sections (3) and (4), be modified by an employee at any time, after giving a written notice of his intention to do so in such form and in such manner as may be prescribed. (6) If a nominee predeceases tii&employee, the interest of the nominee shall revert. to the employee who shall make a fresh nomination in respect of such interest. 7. (1) Any employee wno is gratuity on superannuatio,1 under autnoriseci in writing to acz on his application to the employer within form as may be prescribeu. eligible for payment of this Act or any person behalf shall send a written such time and in such Determi- nation of the amount of gratuity. , (2) As soon as the amount of 'gratuity becomes payable, the employer shall give 4.xice in writing to the person to whom tne gratuity is payable and to the controlling authority specifying the amount of gratuity and the employer. shalt arrange to pay such amount within such time as may be pre-scribed to that person. (3) If there is any dispute as, to the amount of gratuity payable or as to the admissibility of the claim, the controll- ing authority, on an application made to it in this behalf in such manner ,as may be prescribed, shall determine the amount after due inquiry and if any amount is found to be due, the controlling officer shall direct the employer to pay the same to the person referred to in sub-section t2) within such time as may be prescribed. (4) No order shall be made under sub-section (3) unless the parties to the dispute have been given a reasonable oppor-tunity of being heard. (5) For the purpose of conducting an inquiry under sub-section (3), the controlling authority shall have the same powers as are vested in a court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following p matters;namely:— (a) enforcing the attendance of any person or examining him on oath ; (b) requiring the discovery and production of documents ; (c) receiving evidence on affidavits ; (d) issuing commissions for the examination of witnesses. (6) Any inquiry under this section shall be a judicial pro- ceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code. t7) Any person aggrieved by an order under sub-section (3) may prefer an appeal, to the State Government or such other authority as may be specified by the State Government in this behalf, within sixty days from the date of the receipt of the order and the decision of the State Government or other authority on such appeal shall be final. Essigal Ast Hi of 1911. 8. If the amount of gratuity under this Act is not paid. by the employer, within the .time prescribed to the person entitled thereto, the controlling authority shall, on an applica-tion made to it in this behalf by the aggrieved person, issue a certificate for that amount to the Collector who shall recover the same as arrears of land revenue under the provisions of the Bengal Public Demands Recovery Act, 1913, and pay the same tc the person entitled thereto. 5 of 1808. 46 of 1660. ResoverY of gratuity. 1632(1) THE CALCUTTA GAZETTE, EXTRAORDINARY, AUGUST 28, 1971 WARY V Penalties. 9. (1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with ilimprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. (2) An employer who contravenes, or makes default in complying with any of the provisions of this Act or any rule made thereunder shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both. Cognizance 10. (1) No court shall take cognizance of any offence of offences. punishable under this Act save on a complaint made by or under the authority of the State Government. (2) No court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punish-able under this Act. Protect ion 11 . No suit or other legal proceeding shall lie against the for acts controlling authority cr any other person in respect of any- done in thing which is in good faith done or intended to be done under good faith. this Act or any rules made thereunder. Power to 12. (1) The State Government may, by notification, make triakeruIee. rules for the purpose of carrying into effect the provisions of this Act. (2) Every rule made under this Act shall be laid; as soon as may be after it is made, before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and, if before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assem- bly makes any modification in the rule, or decides that the rule shall not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything pre- viously done under that rule. Repeal and 'twinge. 13. (/) The West Bengal Employees' Payment of Com- pulsory Gratuity Ordinance, 1971, is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act hart come into force on the 14th day of June, 1971. V. V. GIRT,. President. N. D. P. NAMBOOD1RIPAD, West Bengal Orshnanoe I of 1971. PART V] THE CALCUTTA GAZETTE, EXTRAORDINARY, AUGUST 28, 1971 1632(m) REASONS FOR THE ENACTMENT On the 3rd June, 1971, the Governor of West Bengal pro-mulgated an Ordinance entitled tile West Bengal Employees' Payment of Compulsory Gratuity Ordinance, 1971. The said Ordinance provides for payment of gratuity to all employees employed in West Bengal in establisnments griverned by the Factories Act, 1948, Plantations Labour Act, 1951 or the West Bengal Shops and Establishments Act, 1963. linden the Ordinance, gratuity is payable to every employee who has rendered not less than five years of continuous service on his superannuation, retirement or resignation or death or total, disablement due to accident or disease. The gratuity is pay- able at the rate of fifteen days' wages for every completed year of service subject to a maximum of fifteen months' wages. The Ordinance, - hovvev.sr, ern nov ers the State Government to exempt any factory, plantation or establishment from the provisions of the Ordinance if in the opinion of that Govern- ment the employees or any class of employees in such factory, plantation or establishment are in receipt of benefits better than the benefits conferred under the Ordinance. 2. The present enactment seeks to replace the said Ordinance with certain modifications mentioned below:- 0) the operation of the enactment has been limited in relation to shops or establishments as defined in the West Bengal Shops and Establishments Act, 1963, in which ten or more persons are employed, (ii) the benefit of gratuity under the proposed enactment has been restricted to those employees whose wages do not exceed seven hundred and fifty, rupees per mensem or who do not hold a civil post under the Central or State Government, (iii) the age of superannuation of an employee for the purpose of entitlement to gratuity has been fixed, as fifty-eight years in cases where the age of supe- rannuation is not stipulated in the contract or con- ditions of service of that employee or where no such contract subsists or no conditions of service have been specified, (iv) wages have been so defined as to include dearness allowance but not house rent allowance, (v) the qualifying period of five years of continuous ser- vice for entitlement to gratuity will not be applic- able in the case of death or total disablement due to accident or disease of the employee, (vi) an employee shall be disentitled to gratuity if his employment is terminated for gross misconduct, (vii) a factory, plantation, shop or establishment would now be eligible for exemption if the employees therein are in receipt of benefits which are not less favourable than those provided under the present enactment. 3. The Committee constituted under the proviso to sub- section (2) of section 3 of the West Bengal State Legislature (Delegation of Powers) Act, 1971 01 of 1971), has been con- sulted before enactment of this measure as a President's Act. P. M. NAYAK, Secy. to the Govt. of India, Department of Labour and Employment.