2347 - adp strictly statutes newsletter jan issue final 2 write to [email protected] hello readers,...
TRANSCRIPT
JAN2015
The Compliance Calendar for January includes remittances for PF, ESI, Labour Welfare Fund and CLRA.
In important judgements, the Honourable Punjab & Haryana High Court has held that abandonment of employment depends upon intention of a workman. The Honourable Karnataka High Court has pronounced thata more beneficial gratuity scheme, over payment of gratuity act, is permissible. The Honourable Uttarakhand High Court has opined that back-wages should berightly denied in the absence of proof for unemployment. The Honourable Bombay High Court has pronounced that full back wages on reinstatement should be paidwhen workman proved unemployment during interregnum and when termination of workman is not on technical ground. The Honourable Bombay High Court has ruled that ahospital engaged in welfare activities is an 'industry under I.D. Act'.
In news to note, a separate bill to regulate small factories is being drafted by labour ministry. The employees' provident fund organization (EPFO) has constituted a five member sub-committee on construction workers. The EPF Appellate Tribunal has held that bifurcation of minimum wages into allowances is not illegal. Central Government has released a notification for amendment in Apprentice Act, 1961. ESIC has released booklets for employee & employers online. The Bonus Act has got an amendment. RBI has extended timing for RTGS transactions till 8PM. The Labour Ministry has prepared a mega housing scheme to offer affordable houses to over 5 crore subscribers of retirement fund body EPFO.
We hope you find the contents of this newsletter relevant and useful. We welcome your suggestions and inputs for enriching the content of this newsletter. Please write to [email protected]
Hello Readers,
News to note
Important Judgments
Compliance Calendar for Jan 2015 02
PAGES
Abandonment of employment dependsupon intention of a workman 04
Full back wages on reinstatementshould be paid when workman provedunemployment during interregnum andwhen termination of workman is not on technical ground
05
More beneficial gratuity scheme,over payment of gratuity act,is permissible
04
Back-wagesshould berightly denied in the absence of proof for unemployment 05
A hospital engaged in welfare activitiesis an 'industry under I.D. Act. 06
EPFO panel on Construction workers 07
Separate bill to regulate small factoriesdrafted by labour ministry 07
Bifurcation of minimum wagesinto allowances-not illegal 08
ESIC releases booklets foremployee & employers on line,through the below links
09
Central Government released notificationfor amendment in Apprentice Act, 1961 08
RBI extends Timing for RTGSTransactions till 8PM. 09Labour Ministry prepares a megahousing scheme to offer affordablehouses to over 5 crore subscribers ofretirement fund body EPFO
10
Bonus Act gets an amendment 09
PAGE 02
Compliance Calendar for the month of Jan 2015
20th Jan 15 Kerala By Challan
Labour Welfare Fund Remittances
15th Jan 15 Remittance of Contribution EPF & MP Act 1952 By Challan
15th Jan 15International worker with wages and Nationality EPF & MP Act 1952 Statement in IW 1
21st Jan 15 Remittance of Contribution(Main code and Sub Codes) ESIC Act 1948 By Challan
ESI Central
Due Date Activity Due Under Mode
Professional Tax - States - Remittances
PF Central
State Labour Welfare Fund Kerala
10th Jan 15
15th Jan 15
20th Jan 15
21st Jan 15
Andhra Pradesh & Madhya Pradesh
Gujarat
By Challan
By Challan
By Challan
By Challan
Karnataka
West Bengal
State wise regulations
Gujarat PT regulations
30th Jan 15 By Challan
West BengalPT regulations
Maharashtra, Assam & Orissa State wise regulations
20th Jan 15 Karnataka PT regulations Karnataka Online
Karnataka PT regulations
PAGE 03
Compliance Calendar for the month of Jan 2015
Due Date Activity Due Under Mode
31st Jan 15 Return by Principal Employer By Form XXVCLRA, 1970
CLRA Central
15th Jan 15 Strength & Occupation Return By FormER-1 & ER-2
Employment Exchange (Compulsory Notification of Vacancies) Act, 1959
31st Jan 15During themonth
Annual Return Medical Examination,Pressure Vessel examination,Safety Committee Meeting &Canteen Committee Meeting
By Form 22
Factories Act, 1948 Central
Factories Act
31st Jan 15 Return By Form K
Maternity Benefit Act, 1948
31st Jan 15 Return By Form III
Minimum Wages Act, 1948
31st Jan 15 ReturnBy Form IV,VI & VII
Payment of Wages Act, 1936
31st Jan 15 Return By Form 2 &Copy of Form 1
Tamil Nadu Indl Est (Conferment of Permanent Status) Act, 1981
31st Jan 15 Particulars of contribution By Form A
Tamil Nadu Labour Welfare Fund Act, 1972
31st Jan 15 Return By Form 2
Payment of Subsistance Allowance Act
PAGE 04
ABANDONMENT OF EMPLOYMENT DEPENDS UPON INTENTION OF A WORKMAN
¡ In an case of R.Balurao, s\o Late Ramachandran Shivabhatjois vs. Divisional controller, KSRTC, Mysore, and others, the honourable Karnataka High Court through Hon'ble Justice Mr.Ram Mohan Reddy pronounced that
¡ An employee is entitled to gratuity under a provision of any other law or regulation or scheme framed thereunder if the same is more beneficial than those as provided under the Payment of Gratuity Act, 1972.
¡ An employee is not entitled to gratuity if he is not able to claim the same under any provision of law.
MORE BENEFICIAL GRATUITY SCHEME, OVER PAYMENTOF GRATUITY ACT, IS PERMISSIBLE
In a case of Dal Chand vs. M/s. K.B. Hydraulic Engineering Works (regd) and another, the Honourable Punjab & Haryana High court through Honourable Justice Mr. Rajiv Narain Raina pronounced that
▪ Abandonment of employment by a workman is dependent upon his intention.
▪ Failure of the management in allowing workman for resumption of duties during conciliation proceedings would justify the claim of the workman that he has not abandoned his job of his own accord.
▪ Reinstatement would be appropriate when the management has alleged that the workman has abandoned his job of his own accord and, as such, it amounted to violation of section 2(oo) of the Industrial Disputes Act, 1947.
▪ Any termination or even abandonment of job on the part of a workman would attract section 25F of the Industrial Disputes Act and if its compliances not made, the abandonment of job would be treated as illegal and the workman will be entitled to reinstatement.
▪ When the labour court has held that the management has wrongly presumed that the workman has kept away from work and abandonment has been rightly granted whereas instead of 10% back-wages full back-wages should have been awarded.
PAGE 05
FULL BACK WAGES ON REINSTATEMENT SHOULD BE PAID WHEN WORKMANPROVED UNEMPLOYMENT DURING INTERREGNUM AND WHEN TERMINATIONOF WORKMAN IS NOT ON TECHNICAL GROUND
In a case of Shashikantgangaramnarkar vs. Advance Transformers and Equipment Pvt Ltd, Mumbai and Another, the Honourable Bombay High Court through the verdict by Honourable Justice Mr. M.S. Sonak. J pronounced that
¡ Denial of 50% back-wages by the labour court on reinstatement of the workman without stating any reason needs modification hence the workman would be entitled to full back-wages.
¡ When the workman, in his evidence, before the labour court stated that after termination he remained unemployed and made efforts for employment but could not get the same, would justify full back-wages.
¡ Failure of the employer to rebut the evidence of unemployment during interregnum would justify the claim of the workman for full back-wages.
¡ Labour court erred in not granting full back-wages to the workman on his reinstatement when the termination was not on only technical ground.
BACK-WAGES SHOULD BERIGHTLY DENIED IN THEABSENCE OF PROOF FOR UNEMPLOYMENT
In a case of Laxmi Sugar Mills Co. Ltd. vs. presiding officer, labour court, haridwar & Anr., the Honourable Uttarakhand High Court through the verdict by the honourable Justice Mr. Alok Singh pronounced that
¡ Awarding reinstatement to a workman, after 10 years of
termination of his services, seems to be totally unjustified.
¡ Lump sum compensation is appropriate after 10 years of
termination of services of the workman instead of
reinstatement.
¡ When no material was ever produced before the labour
court by the workman to show that they were not engaged
gainfully or totally remained idle after termination of their
services till impugned award was passed, non-grating
back-wages by the labour court is justified.
PAGE 06
A HOSPITAL ENGAGED IN WELFARE ACTIVITIESIS AN 'INDUSTRY UNDER I.D. ACT.
In a case of Union of India through director & Ors. Vs. Mohan P. Gore, the honourable Bombay High Court through the verdict by Honourable Justice Mr. M.S. Sonak pronounced that
¡ An institution is an industry if it yields profits but the same is siphoned off for altruistic objects or if it
makes no profit but hires the services of employees as in like business, but the goods and services,
which are the output of that institution, are made available at the low or no costs, to the indigent needy
who are priced out of the market.
¡ If an institution is oriented on a humane mission, which is fulfilled by the men who work, not because
they are paid wages but because they share the passion for the cause and device job satisfaction from their
contribution, it may not be covered by the definition of 'industry' as observed in the case of Bangalore Water
Supply and Sewerage Board v Rajappa, 1978 LIC 467 (SC) by Justice Mr. Krishna Iyer.
¡ The scope and parameters of the definition of State under the Article 12 of the Constitution of India and
Industry under section 2(j) of the Industrial Disputes Act, 1947 are completely different.
¡ A hospital engaged in charitable activities is also an industry under section 2(j) of the Industrial Disputes
Act 1974.
¡ If a workman states that he remained unemployed during pendency of the proceedings before the labour court, the burden of proof to prove employment by the workman shifts upon the employer to rebut the same.
¡ Grant of full wages would be justified on reinstatement when the petitioner-workman has served the employer for a long period without any blemished past record.
¡ Daniel of back-wages, which were to be awarded, would justify levy of interest on payment to the workman concerned.
¡ When there is denial of back-wages and the termination is held as illegal, the High Court, in writ petition, will interfere in the award.
EPFO PANEL ON CONSTRUCTION WORKERS¡ The Employees' Provident Fund Organization (EPFO) has
constituted a five member sub-committee on construction
workers under the tripartite central board of trustees to suggest
a mechanism for increasing social security coverage for
workers in the sector. The sub-committee will be chaired by the
central provident commissioner, said an EPFO circular dated
October 15, and will include one government representative to
be nominated by the labour secretary and an additional central
PF commissioner. The employers will be represented by
SS Patil and Ravi Wig, while the employees will be represented
by Ramen Pandey of congress-led INTUC and MJ Rao of the
BJP - led Bhartiya Mazdoor Sangh. The tenure of the sub-
committee shall be “At the pleasure of the Chairman” according
to the circular.
PAGE 07
SEPARATE BILL TO REGULATE SMALL FACTORIESDRAFTED BY LABOUR MINISTRY¡ The Small Factories (Regulation of Employment and Condition of Service) Bill, 2014, which has been
uploaded on the labour ministry’s website for public comments till November 10, is likely to be introduced
in the winter session December-end the labour ministry said the draft was finalized after extensive
discussions by the working group constituted by it.
¡ The draft denies a small factory “as any premise wherein a manufacturing process is carried on and
which employs less than 40 workers” and seeks to exempt employers from complying with 14 act.
(for complete bill visit: labourlawreporter.com)
¡ The employers can register and even close down their factories by electronically notifying it to the
authorities concerned. While mandatory registration of a small factory is to be done within 60 days of its
commencement after paying the prescribed fees, in the case of closure, the owner/employer needs to
electronically notify this to the chief inspector within 15days of closing the factory. On 'Financial
inclusion'. The draft proposes that wages of over Rs. 1000 “Shall be paid to the workers by depositing
them in the bank account of the workers, electronically”. It shall be the responsible of the employer to get
a zero balance account opened. It adds.
¡ On minimum wages, the draft mandates that no employer shall pay less than the fixed minimum wages,
but proposes no penalty for non-compliance, adding that any claim in this matter is to be decided by an
authority to be set up by the State Government. The draft includes proposals on child labour, health and
safety standards, maternity benefits, leave entitlement, bonus, and gratuity among other things. The bill
having 55 section also has provision regarding unfair labour practices, service conditions, adjudication
of disputes, etc.
BIFURCATION OF MINIMUM WAGES INTO ALLOWANCES-NOT ILLEGAL
PAGE 08
¡ An appeal was filed by the appellant, before the Employees' Provident Fund Appellate Tribunal against the
order dated 06.07.2011, passed by the EPF authority, under section 7A of the act, assessing P.F dues and
allied dues on allowances also which is illegal.
¡ The EPF Appellate Tribunal observed that the employer has bifurcated the minimum wages into different
heads like basic wages, house rent allowance, conveyance allowance, etc. The employer has been paying
employees' contribution only on the basic wages as provided under the Employees' Provident Funds and
Miscellaneous Provident Act, 1952 excluding allowances. The EPF authority pleaded that PF dues can
never be calculated on wages lower than minimum wages. Accordingly, the EPF authority initiated
proceeding under section 7A of the act, taking into consideration the minimum wages under the minimum
wages act and directed the employer to pay the contribution so determined. The EPF appellate tribunal
opined that minimum wages has not been defined under the Employees' Provident Funds and
Miscellaneous Provident Act, 1952. Only basic wages is defined under the Act. EPF authority has no power
to hold whether minimum wages amount to basic wages or not. While interpreting a provision of any Act, the
court only has to interpret the law and cannot legislate it. If a provision of law is misused and subjected to
abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. There is
no compulsion to hold that the definition of basic wages should be equated to the definition of minimum
wages as defined under section 2(b) read along with section 6 of the Employees' Provident Funds and
Miscellaneous Provisions Act, 1952 and not on Minimum Wages Act. Hence, impugned order is set aside.
Appeal is allowed.
CENTRAL GOVERNMENT RELEASED NOTIFICATION FORAMENDMENT IN APPRENTICE ACT, 1961¡ The qualification, period of apprenticeship training, holding of test, grant of certificate and other conditions
relating to the apprentices in optional trade shall be such as may be prescribed.
¡ The employer may engage apprentices from other States for the purpose of providing apprenticeship training to the apprentices.
¡ The Central Government shall prescribe the number of apprentices to be engaged by the employer for designated trade and optional trade.
¡ Several employers may join together either themselves or through an agency, approved by the Apprenticeship Adviser, according to the guidelines issued from time to time by the Central Government in this behalf, for the purpose of providing apprenticeship training to the apprentices under them.
¡ Every employer shall make suitable arrangements in his workplace for imparting a course of practical training to every apprentice engaged by him.
¡ Such of the trade apprentices who have not undergone institutional training in a school or other institution recognised by the National Council or any other institution affiliated to or recognised by a Board or State Council of Technical Education or any other authority which the Central Government may, by notification in the Official Gazette, specify in this behalf, shall, before admission in the workplace for practical training, undergo a course of basic training and the course of basic training shall be given to the trade apprentices in any institute having adequate facilities.
¡ Every trade apprentice who has completed the period of training may appear for a test to be conducted by the National Council or any other agency authorised by the Central Government to determine his proficiency in the designated trade in which he has undergone apprenticeship training.
ESIC RELEASES BOOKLETS FOR EMPLOYEES & EMPLOYERS ONLINE,THROUGH THE BELOW LINKS
PAGE 09
Employer:
http://esic.nic.in/CIRCULARS/ESIC%20Employers%20Booklet%20English.pdf
Employees:
http://esic.nic.in/CIRCULARS/ESIC%20Employees%20Booklet%20English.pdf
BONUS ACT GETS AN AMENDMENT¡ Annual Returns - Every employer shall on or before the 1st day of February in each year upload annual
returns in Form D on the web portal of the Ministry of Labour and Employment giving information as to
the particulars specified in respect of the preceding year, Provided that the annual returns shall be filed
within the time limit specified in section 19 of the Act.
¡ Every employer on or before the 1st day of February in each year may file annual returns in the Form D to
the Inspector giving information as to the particulars specified in respect of the preceding year.
¡ Provided that during inspection, the inspector shall require the production of the accounts, books,
register and other documents if the same are maintained in manual form or in electronic form, as the
case may be.
RBI EXTENDS TIMING FOR RTGS TRANSACTIONS TILL 8PM.¡ With effect from 29.12.2014 RBI has
extended the working hours for
Weekdays / Regular Days to 08.00 Am
to 08.00 PM from existing 09.00 AM to
04.30 PM and it further extended the
working hours for RTGS on Saturdays /
Sunday to 08.00 Am to 03.30 PM from
existing 09.00 AM to 02.00 PM.
¡ The Ministry intends to collaborate with PSU banks, housing finance companies, state-owned
construction firms like NBCC and authorities like DDA, PUDA, HUDA to build houses at a price to be
fixed by the government.
¡ Labour Ministry is preparing a scheme under which affordable houses will be provided to the
Employees' Provident Fund Organisation (EPFO) subscribers, particularly those who are in the low
income bracket," a source in the ministry said.
¡ In a recent note, the Prime Minister's Office had asked EPFO to promote affordable housing for its
subscribers and use its funds for the purpose.
¡ According to the note, deployment of 15 per cent of EPFO funds as loan for low cost housing would
generate a credit flow of Rs 70,000 crore and can create 3.5 lakh additional low-cost homes.The Labour
Ministry is keen on a scheme under which EPFO subscribers could withdraw their PF deposits to make
part-payment of the total cost of the house.
¡ The Ministry also intends to provide subsidy to the EPFO subscribers in low-income bracket to help
them avail benefits of various low-cost housing schemes of the government.
¡ Financial institutions, sources said, would be roped in to provide housing loan at low interest rates under
the priority sector lending for construction of affordable houses under the scheme.
The scheme, however, will be optional for EPFO subscribers as there is no need to provide affordable
houses to those who already own one.
¡ Under the housing scheme, there
would be three different income
categories--Low Income, Middle
Income and High Income. Houses and
financial incentives under the scheme
will be offered on the basis of the
income of a subscriber.
¡ The subscribers would be facilitated to
pay equated monthly instalments of
their home loan through their
provident fund account.
¡ The source said that under the
scheme EPFO may use its funds to
create a corpus for providing housing
loan at affordable interest rate to its
subscribers.
LABOUR MINISTRY PREPARES A MEGA HOUSING SCHEME TO OFFERAFFORDABLE HOUSES TO OVER 5 CRORE SUBSCRIBERS OFRETIREMENT FUND BODY EPFO
PAGE 10
PAGE 11
ADP IndiaThamarai Tech Park, S.P. Plot No. 16 to 20 & 20AThiru Vi Ka Industrial Estate,Inner Ring Road, Guindy,Chennai - 600 032.
Phone: 1-800-4190-237Email: [email protected]
Get the ADP expertise working for you.A 60 year track record that speaks for itself.
web site at www.adp.in