Assam act 013 of 1993 : The Assam Gratuity Act, 1992

696 THE ASSAM GAZETTE. EXTRAORDINARY, JULY 1, 1993

ASSAM ACT NO XIH OF 1993,

(Received the assent ef the President on 24th Jane, 1993)

THE ASSAM GRATUITY ACT, 1992

AN

ACT

to provide for framing of a gratuity fund scheme for employees employed in the tea factories, t a plantations and for the works connected therein or incidental thereto.

Preamble Whereas it is necessary to provide for framing of a gratuity fund scheme for the employees employed in the tea factories, tea planta tions and for the works connected there- in or incidental thereto ;

It is hereby enacted in the Forty-third Year of the Republic of India in the manner hereinafter appearing; extem^and'¹• U) This Act m?y be called the Assam Gratuity Act,

commence- i ^92 meat.

(2i it extends to the whole of Assam.

(3) It shall come into force on such date as the State Government may by notification, appoint.

(4) It shall apply to tea plantations and tea factories:

Provided that te i factory or tea plantat ion to wirch this Act has become applicable shall continue to be so applied notwithstanding that number of persons employed therein at any time after if has become so applicable falls below teo.

Definitions 2. In this Act, unless the context otherwise requires: —

(a) "Governnaect" meats "the State Government of Assam".

(b) "Completed year of Service" meaes-eontinous service for one year.

(c) "Continuous service" means the period of service during which an employes is in service without inter- ruption including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect ef which an order treating the absence or break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off strike or a losk-out or cessation of work not due to any fault of the employees whe- ther such uninterrupted or interrupted service was rendered before or aber the commencement of this Act.

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THE ASSAM GAZETTE, EXTRAORDINARY, JULY 1. 1993 697

(d) 'Controlling authority' means an authority appointed by the State Government under Section-3 of this Act.

(e) 'Employee' means any person (other than appr- entice) employed on wages not exceeding two thousand and five hundred rupees per month or sueh higher amount as the State Government may, having regard to the general level of wages, by notification, spceecify to do skilled, semi-skilled or unskilled, manual, super- visory, technical or clerical orks whether the terms of such employment ere expressed or implied and whether or not such person -is employed in a managerial or a ministrative capacity.

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Gent; al Act,

69 of 1951 EXPLANATION :—In the case of an employes, who, having been employed f >r a period of not less than five years on wages not exceeding two thousand five hundred rupees per mensem is employed at any time thereafter on wages ex- ceeding that amount, gratuity, in respect of the period du- ring which such employee was employed on wages not ex- ceeding two thousand five hundred rupees per mensem shall be determined on the basis of the wages received by him during that period.

(f) 'Employer'means any person who is the proprietor of a tea plantation and tea factory an I includes a Managing Agent, Miiuager, Superintendent, Mar aging Director, Director Leasee c r any other person who is, for the time being, incharge of any tea plantation or tea factory.

(g) 'Lea plantat ion'has the meaning assigned to it in Clause (f) of Section 2 of the plantation Labour Act. 1951 whe:e ten cr more employees are employed.

(h) 'Tea Factory' means any factory manufacturing tea and employing ten or more persons.

(i) 'Family' means (1) In the case of male employees, himself, his wife, his children whether married or unmarried including adopted children ar d his de- pendent parents and the widow and children of the deceased son of the employee ai d depenle nt parents of the wife of the employee, PROVIDED that if an employee proves that his wife has ceased to be entitled to maintenance under the personal law govcrjiFg him or the customary law of the community to hijh the spouse belongs she shall no longer fee deemed to be a member of the employee's ' family, unless the employee subsequently intimates by express notice in writing to the Controlling Authority or such Ct|e r, Officer as may be appointed cn this be- atf, tha t 'sh e shall continue to be so regatded, and⁴

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693 THE ASSAM GAZETTE, EXTRAORDINARY. JUEY 1. 1993

( i i ) in the case of fema le employee, herself, her husband and children of the employee , the dependent parents of the husband and the widow and chi ldren of the deceased son of the employee and her dependent parents, PROVIDED that if an employee by notice in writing to the Controlling authority or such other Officer as may be appointed on this be hd f, expresses her desire to exclude her husband from the family the hu-band shal l no longer be deemed to be a member of the employee's family unless the employee subsequently cancels in writing any such notice-

EXPLANATION : In either of the abov e 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 ii legally recognised, such a child shall be considered as excluded irom the family of the employee.

( j > 'Superannuat ion'— in relat ion to an employee m'a ns the attainment bv she employee of such age as is fix d in the contract t r conditions of service ss the age on the attainmer t of which the em- ployee shall vacate the employment.

( k ) '^Vages* means all emo lun vnt s * hi ch are earned by an employee while on duty or on leave in accordance with the terms and condit ions of his employment and which are paid or paya ble to him in cash and includes dearness allowances but does not include any bonu s. Com misdon, Houser Rent Allowance, overtime wages and any other allowances .

0) 'Gratuity' means the wage as defined in clause (k) a b o v e payable on the date prior to the date of exit of the employee, except seasonal and daily workers, in which case it would be the average o f the last 3 months wages prior to the date of exit, provided that Gratuity wage shall co t exceed tw o thousand five hundred rupees per mensem in any case.

fro) 'B ard of Trustees' means Board of Trustees con- stituted under pa ia 3 of the As-am Tea Plantations Provident Fund and Pension Fund Scheme, 1968.

(n) 'Scheme' means The Scheme framed under this Aet.

(o) 'Gratuity Fun d' means Gratu ity Fund established under the scheme framed under this Act.

(p) 'Contribution' means a contribution payable by the ecs pioyer in respect of his employee covered under this Act.

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THE ASSAM GAZETTE. EXTRAORDINARY, JULY ,1 1993 699

(q) 'Gratuity Service' means The aggregate of service ren- dered bv the employee rounded to the nearest year. Anv interrupted service on account of sickness, accident, leave and cessation of work aris irg out of lcck-out, strike, or lay-off net due to the fault of the employee before or after the cotemeacement of the Act shall also be taken into account.

3. CONTROLLING AUTHORITY

(1) The State Government may, by notification, on the recommendation of the Borad, appoint an officer to be the Controlling Authority for administration of this Act and the Scheme framed thereueder.

(2) The Controlling Authority shall work subject to the contr ol of the Board .

4, GRATUITY FUND SCHEME :

(1) The State Government may, by notification, in the Official Gazette, and subject to previous publication fran ed a scheme to be called 'Assam Gratuity Fund Scheme* for the establishment of a Gratuity Fund for the employees £ employed in tea plantations and in tea facxries.

(2) A Scheme framed under Sub-section (1) of this t Section may provide for all or any of the matter speci- fied in the Schedule appended to this Act.

(3) The Scheme may also provide that any of its provisions shil l take effect either prospectively or retrospectively on such date as may be specified in this behalt in the scheme.

(4) The Scheme, shall have effect notwithstanding any - thing contained in any other law for the time being in force other than this Act or any instrument having effect by virtue of any law other than this Act.

(5) The Government may, by notification in the Offi- cial Gazette, add to ascend, very or rescind the Scheme.

5 ADMINISTRATION OF THE GRATUITY FUND :

The Gratuity Fund shall be administered by the Board of Trustees through the Controlling Authority as provi- ded under section 3 of the Act.

6. CONTRIBUTION:

(1) Every employer shall pay every month into the Gratuity Fund in respect of every employee in relation to whom he is the employer, such amount not excee- ding five percent of the wage as the State Government may by notification in the Official Gazette specify.

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700 THE ASSAM GAZETTE. EXTRAORDINARY. JU LY 1 1993

(2) Every employer shall also pay into the Gratu ity Fuad contributions at the rate of 60.36 per cent of the wages received by the employees during the preceding 12 months at the commencement of the Act to cover up past Gratuity liabilities.

PROVIDED that the Controlling Authority may grant instalment to liquidate the past liabilities in such manner and on such conditions and at such rate of interest as may be provided in the Scheme.

(3) Every employer shall further be liable to pay to the Gratuity Fund the amount due to any employee during the pendency of full liquidation of the past liabilities on termination of service. The amount so paid shall be adjusted against the past Labilities as mentioned under sub-section 2 of this Section.

7. POWER TO EXEMPT;

(1) If any employer has already created G ratuity Fund or obtained an insurance from the Life Insurance Corpora- tion of India under the Payment of Gratu ity Act, 1972, he may be exempted from the purview of this Act, if the Controlling Authority is satisfied that such Fund or the insurance from the Life Ir-surance Corporation of India covers the full Gratuity liability in respect of thia employees coveted under thia Act.

2) In case cf any complaint about non-payment of gratuity or non-payment of premium to the insurance fey the exempted employer, the Controlling Authority shall serve such employer with a notice to pay the same within such period, in such manner as raey be specified on the notice and in case ti e employer fails to do so the exemption, granted under sub-section (I) of this sec ion shall he revoked.

8. TRANSFER OF FUND :

(1) Where the exemption granted under sub-section (1) is revoked un Jer sub-section (2) of section 7 of this Act the employer shall transfer the Gratuity Fund already created or assigned in favour of the Controlling Authority the Insurance of Life Insurance Corporation of India obtained under the payment of Gratuity Act, 1972 in su h manner as may be provided in the Scheme.

(2) If any amount transferred under sub -section-1) is found shi rt, the employer shall pay the balance amount within such time as may be directed by the Controlling Authority.

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THE ASSAM GAZETTE, EXTRAORDINARY, JULY 1, 1993 701

(3) If She sum assured in the policy as si st ed is fou nd shor j of as pe'' provision of tbe Scheme^ the employer shall pay the bala nce am ount within such time as may be directed by the Controll ing Autho rity .

9. PAYM ENT OF GR AT UI TY BE NE FIT AN D TO

WHO M PAYABLE :

Gr atu ity shal l be payable to an employee on the ter mi na tio n of his emp loyment en sup era nnuation, ret ire - me nt or res ign a'ion aft er he has rendered con tinous services of not less than live years.

PROV IDED th at com ple tion of five year s service shall no t be necessary where termi na tio n of employment is due to dea th and disablem ent. In case of terminat ion of employmen t due to de ath , gr atui ty shal l be pa id to the nominee and in abs ence of nom inee, to the legal hei r.

10. QU AN TU M OF GR AT UI TY :

The gra tui ty payable under sect ion 9 sha ll be com- pu ted i.s follows :—

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jg- X Gratu ity Service X Gr atu ity Wage subje ct to maximum of Rs. 50,000/- and minim um of Rs. 1,000/— as Gratu ity .

11. FO RFE IT URE OF GRATU IT Y:

(1) No twithstanding anyth ing con tained in section 9 the gra tui ty pay able to an employee , whose services have been ter mi na ted for any re t, wilful emiss ion or neg ligence causing any dam age or logs tp , or destruc- tio n of fr op er ty belo nging to the employe rs, shall be forfeited to the extent of the dam age or loss so caused.

(2) The Gra tu ity pay able to an employee sha ll be wholly forfeited, (a) if the services o f such employee have been terminated for his rio tou s or diso rde rly con- duc t or any act of violence on his pa rt .

(b) If she services of such employee hav e been ter - mina ted for any act which const itu ted *a offence in- volv ing mo ral tu rp itu de , provided th at such offe ree is com mit ted by him in the cours e of his employme nt, (3j Where tbe employee resigns af te r commencement of an enq uiry on his beh aviour , the gratu ity paya ble s had rem ain unpa id till such tim e the enqu iry is completed,

12. NO MIN AT IO N ; Each employee who has com pleted one year o f service, sha ll make, with in such tim e, in suc h form and in such ma nner as prov ided in the Scheme, nomination for the purpose o> the pro viso to Sec tion 9 of this Act .

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7Q 2 THE ASSAM GAZETTE. EXTRAORDINARY, JULY I, 1993

13. prior ity of pay men t of contrib ution s OVER OTHER DEBTS:—

(!) The amount due in respect of any Contribution under this Act or any charses incurred in respect of the administretion of any such Scheme shall, where the liabi- lity has accrued before the person has been adjudicated as insolvent or in the case of a company ordered to be wound up before the date of such order, be deemed to be included among the debt under Section 61 of the Provincial Insolvency Act 1920 ( Act, V of 1920 ) or Section 530 of the Companies Act, 1956 and are to be paid in priority to all other debts in the distribution of the property of the insolvent or the assets of the Company being wound up, ss the case may be.

(2) Without Prejudice to the provisions of sub-section

(1) of this Section any amount due from an employer under the provision of this Act or the scheme framed thereunder shall be deemed to b the first charge on the assets of the establishment and shall, notwithstan- ding anything contained in any other law for the time being in force, be paid in prior ity to all other debts.

14. FUND DEEMED ]O BE RECOGNISED GRATUITY

FUND UNDER INCOME-TAX AGT ; 1961 For the purpose of the Income-tax Act, 1961 the Gratuity Fund shall be deemed to be recognised Gratuity Fund within the meaning of Section 43 of that Act.

15. PROTECTION AGAINST ATTACHMENT:— The gratuity payable under this Act to an employee shall not be liable to attachment in execution of any decree or order of any Civil, Revenue or Criminal Court.

16 MODE OF RECOVERY OF MONEY DUE FROM

THE EMPLOYERS

Any amount due from any employer in respect of any contribution payable the Fund or any charges pay- able by him under any other provisions of this Act or under any provisions of the Scheme, may be recovered as an arrear of land revenue.

17. EMPLOYER NOT TO REDUCE WAGE:—

No employer shall, by reason only of his liability for any contribution payable under this Act, reduce, whether directly or indirectly the wages of any employee to which the employee is entitled under the terms of hii employment.

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THE ASSAM GAZETTE, EXTRAORDINARY, .JULY 1, 1993 703

18. PEN ALT Y :

Whoever mak es default in deposit of any contr ibu tions or tra nsfer the Fu nd created or fail s to assign Policy ob tai ned from Life Insuran ce Corporatio n of Ind ia or fails to deposit the ins talme nt allowed un de r thi s Act an d the schem e or com rav ene s any of the prov ision s of the Act and the schem e or fad s to comply with the dire ction cf Controll ing Au thoi ity , he sha ll be pun ish- able with impri son ment for a term which shal l no t ba ■ less th an six mo nth s bu t which may be extended to two yea rs or with fine which sha ll no t be less ti a n ten thou sand rup ees bu t which may be extend ed to twenty thousa nd rupe es or with bo th and in case of a con- tinuin g offence with a fu rth er fi n e which n ay extend up to one thousand rup ees fo r e 'ch day during which the offence con tinu es.

Cognizance 19. 11) No Co ur t shal l tak e cognizan ce of offence pun ish- ot ofF-nco a bls unde r the Act and Scheme save on a com pla int mad e by cr ue de r 'h au thoi ity of the Con trol ling Autho rity .

(7} No Co urt infer ior to that of a Magist iate of the Fi rs t Class sha ll try any offence p u ishabl e under thi s Act

20. PROVISION FOR IMPOSITION OF DAM AGE:— When an employer makes defaul t in p ayme nt of any c on tri - bu tio n or ins talme nt or in the tra nsfer of any accumu lat ion requ ire d to be tra ns fer red under thi s Act and Scheme or In the payment of any charges payab le unde r auv othe r pro vi- sion of th is Af t or Scheme or in the assi gnm ent of the Policies obtained from Life Insu rance Co rporati on of India , he shall be liable to pay dam age no t exceeding the amount in ar rear . Pr vided that no order for paymen t of dama - ges shal l be passed unle ss rea sonable op po rtu ni tie s of bein g heard is given to the defau lte r.

21. POWER OF RECQVhRY;— The Con tolling Au tho rity sha ll issue recovery certi ficat e to the Col lector wh > sha ll recover th e cer tificated dues as an ar re ar of Land Revenue.

22 APPEA L:—

(1) Any employer aggr ieved by the orde r of Con trolling Author ity imp osin g damage unde r sec tion-2 0 of this Act , may file appea l with the Chairma n of the Boa rd within 30 day s of the ord er of the Co ntroll ing Au tho rity.

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"Oi THE ASSAM GAZETTE, EXTRAORDINARY, )ULY. 1, 1993 (2} Th e Cha irm an of the B oj rd aft er givin g the emp lo- yer a reasonable op po rtu ni ty of being beard may app rove th e dam age imposed by the Con trolling Au thor ity under section 20 or may pass such ord ers ; as may deem fit and prop er,

23, INSPEC TO RS »c. '

(1) The Governme nt may , by not ific ation in the Official Ga ze tte , appo int such employee of the Boa rd, as the Gover n- ment thinks fit, to be the ins pe tors for the purposes of th is Act and the Scheme an d may define thei r jur isd ict ion .

(2) Every Inspec tor appo inte 1 under sub-secth n (1) may, fo r the purpo ses of inq uir ing in to the cor rec tness of any inform atio n furnished i con nection with this Act or the Schem e or fo r the pur pose of asc erta inin g whe ther any of the pro vis ions a f this Act or of the Schema have been com plie d wi th—

(a) requir e an emp loyer to furnish such inform ation as he may consider necessary in re la tio n to the Scheme;

(b) . en ter any office or t ea plan ta tio n or t ea fac tory at any rea son able time and with such atsts tatsc e, ii any , as he may th icks fit, en d sea rch the same and requir e any one found in cha rge thereo f to pro duce before him fo r examin atio n ar.y acc oun ts, books, registe rs an d ethe r docume nts in rel a- tio n to the employme nt of employee or the paymen t of wages of employee;

(c) examine the employer, his agent or serv ant or any othe r person fou nd in charge of the office or planta tion or factory or whom the Inspe cto r has reasonable cause to believe to be, or to have been an employee in the office or plan tat ion or fac tory ;

(d) make copies of, or tak e extrac ts from any book, reg iste r or other doc ument main tai ned in connection with the Gratu ity Fun d aa d, where be has reas on to believe th at any offence under the Ac t and the Schem e has been com mit ted by an emp loyer, seize, wi th such assistance, as he may thi nk fit, such boo ks, regis ters or oth er doc u- me nts as he may conside r rele van t;

(t ) exercise suc h oth er powers as the Scheme may provide . (3i The provisions of the Code of Criminal Pro ced ure , 1973 shall , as far as may be, app ly to any sea rch or seizu re, under sub -sectio n (2) as the y apply to any search or seizure made under the au tho rity of a wa rra nt issued un de r Sect ion-93 of the said Code.

24. PU BL IC SER VANT

Every Inspec tor shal l be deemed to be a pub lic serv ant within the mea ning of Section-21 of the Indian Pen al Code .

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THE ASSAM GAZETTE, EXTRAORDINARY ■' ULY. ', 1993 705

25. PROTECTION FOR ACTS DONE IN GOOD FA IT H: — No suit or other legal proceeding shall lie against the Government or the -Board or any officer or employee thereo f in respect of anything which is in good faith done or intended to be done under this Act or the Scheme.

26. POWER TO REMOVE DIFFICULTIES

If any difficulty arises in giving effect to the provisions of the Act, the Government may make such order or give such direction, not inconsistent with the provisions of the Act, as appears to i t to be necessary or expedient for the removal of the difficulty, and such order shall be final.

27. ACT TO OVERRIDE OTHER ENACTMENTS

The provisions of the Act or a y rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.

28. POWER TO MAKE RULES : — The State Government may, subject to previous publication in the official gazette make rules, for carrying out the purposes of this Act.

THE SCHEDULE

[(See Section 4(2) ] Mat ter for which provision may ba made in the Scheme f—

1. Employees who shall join the Fund.

2. The time and manner in which contributions shall be made to

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706 TJHJB AS SA M GAZiCTTfa BX TR AO RD INAH Y, JULY 1. 1993

6. The manner in which accounts shall he kept, the investment of money belonging to t ie Fund in accordance with the directi jds issued

or conditions specified by the Government the preparation of the budget, the audit of accounts and the submission of reports to the Government,

7. The pro ced ure of col lec tion of all or any sum of moneys due from employers.

8 The forms in which emplojee shall furnish particulars about himself and his family whenever required.

9. The nomination of a persm by a member to receive the Gratu ity amount after his death and the cancellation or variation of such nomination,

10. The Registers and records io be mainta ined in respect of the employees and the returns to be furnished by employers.

11. Determination and manner of payment of Gratuity.

12. The cos ^fof ao tur l valua tion to be paid by the em plo yer.

13. Any other matter which may be necessasy or proper for the purpose of implementation of the Scheme.

K, LASKAR,

Secretary to the Govt, of Assam Legislative Department.

U UW A H A 'n —Printed and published by the Dy . Director (P) Directorate of Ptg . and Sty, Assam, Guwabats—21 (Ex-Gaaette> N o. 135—865— 5 (0 —1-7-1993

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