A. Can a leave and license agreement be read as a lease deed.

According to my understanding, a leave and license agreement can not be read as a

lease deed. In multiple cases, the difference between the two has time and again been
reiterated. Such difference is to be judged based on the character of the document and
accordingly dealt with.
In the case of Dr. Om Prakash Sharma vs. M/S Sai Chhaya Autolink (P) Ltd,
2012 (Arbitration Case No. 74 of 2010) the same interpretation was used to arrive at
the decision. Also in the case of Lakhi Ram Ram Das, Bombay vs Vidyat Cable &
Rubber Industry, (1) UJ 745 SC it was stated that based on the intent of the parties a
distinction is to be drawn between a lease deed and a leave and license.

B. Categories of professionals who are qualified to receive gratuity under POGA, 1972.
According to section 2(e) of the act the workers of the following sectors are eligible
for gratuity under the Payment of Gratuity Act under definition of “employee”

1. Factory workers. “Factory” means any premises including the following,

1. Where ten or more workers are working for the preceding twelve
months, and in any part of which a manufacturing process is being
carried on with the aid of power, or
2. Where twenty or more workers are working preceding twelve months,
and in any part of which a manufacturing process is being carried on
without the aid of power.
2. Mine worker. “Mine” means any excavation where any operation for the purpose
of searching for or obtaining minerals has been or is being carried on

3. Oilfield workers. “Oilfield” means any area where any operation for the purpose of
obtaining natural gas and petroleum, crude oil, refined oil, partially refined oil and
any of the products of petroleum in a liquid or solid state, is to be or is being
carried on.
 4. Plantation worker. “Plantation” not only includes the field where plantation
activity is taking place but also includes offices, hospitals, dispensaries schools,
and any other premises used for any purpose connected with such plantation.
5. Port worker. “Port” also includes any part of a river or channel in which the Indian
Ports Act 1908 is applicable.
6. A worker of every Railway company. “Railway company” includes any persons,
whether incorporated or not, who are owners or lessees of a railway or parties to
an agreement for working a railway.
7. Every worker in a shop, where 10 or more persons are employed or were
employed on any day of the preceding 12 months.
8. Every worker in any such establishment where 10 or more persons are employed
or were employed on any day of the preceding 12 months.
9. Every worker in any 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. Once the Act becomes applicable to an organization i.e.
once an establishment hires more than ten employees, the Act would continue to
apply to the same even after the number of employees gets reduced below the
minimum requirement.

CASELAWS PERTAINING TO GRATUITY IN SPECIFIC TO

1. DOCTORS
It has repeatedly been stressed in several that Doctors/ full time consultant
doctors are not included in the definition of employee given under section
2(e) of the Payment of Gratuity Act, 1972 as given in Doctors Asian Heart
Institute & Research vs. Assessee [2015 ITA No. 7051/MUM/2012] and
Gujarat vs. Dr.R [2011 SCA/12192/2009 14/ 14 ORDER ]
2. ENGINEERS
After the approval of Payment of Gratuity (Amendment) Bill, 2017 in the
Parliament it is stated, the amendment will bring private sector employees as
well as the central government employees at par. The Amendment Bill seeks
to double tax -free gratuity for private sector employees to Rs 20 lakh as
against the current limit of Rs 10 lakh. Based on the passing of this bill, I
 understand that engineers are covered under and eligible for payment of
gratuity.

3. TEACHERS
The Hon'ble Supreme Court in its recent judgment pronounced on January 7,
2019 in the case of Birla Institute of Technology vs. State of Jharkhand
[Civil Appeal No. 2530 of 2012] has endorsed its earlier view taken in the
case of Ahmadabad Pvt. Primary Teachers Association vs. Administrative
Officer and Others [(2004) 1 SCC 755] that teachers are NOT employees
for the Purpose of Payment of Gratuity Act, 1972.

C. Is notification to Government compulsory with regard to employment exchange

vacancies?
The Act, THE EMPLOYMENT EXCHANGES (COMPULSORY
NOTIFICATION OF VACANCIES) ACT, 1959 provides for compulsory
notification to the Government with regard to employment vacancies. The official
form for the same has been provided below
 Employment Exchanges (Compulsory Notification of Vacancies) Act
Form ER-II

Occupational return to be submitted to the Local Employment Exchanges once in two

years
(on a date to be specified by notification in the Official Gazette)

Vide the Employment Exchanges (Compulsory Notification of Vacancies) Rules, 1960

Name and address of the employer………………………………………………………………………………………..

……………………………………………………………………………………………………………………………………………….
Nature of business………………………………………………………………………………………………………………….

(Please describe what the establishment makes or does as its principal activity)
1. Total number of persons on the pay rolls of the establishment on (specified
date)………………………

(This figure should include every person whose wage or salary is paid by the
establishment.)

2. Occupation classification of all employees as given in Item 1 above. (Please give below
the number of employees in each occupation separately.)………………………………………………

Occupation Number of employees

(1) (2) (3) (4) (5)
Use exact terms such as Men Women Total Please give as
engineer (Mechanical); for as possible
teacher (domestic / approximate
science) officer on number of
special duty (actuary); vacancies in
assistant director each
(metallurgist); scientific occupation you
assistant (chemist); are likely to fill
research officer during the next
(economist); instructor calendar year
(carpenter); supervisor due to
(tailor); fitter (internal retirement,
combustion engine); expansion or
inspector (sanitary); re-
superintendent (office); organisation.
apprentice (electrician).

Totals

Dated: …………………… Signature of employer………………

To,
The Employment Exchange
……………………………………………….
……………………………………………….
……………………………………………….
……………………………………………….

(Please fill in here the address of your Local Employment Exchange) Note.—Total of
Column (4) under Item 2 should correspond to the figure given against Item 2.