KNOWLEDGE BLOG ON "INDIAN LABOUR LAW AND HUMAN RESOURCE" - ADVOCATE GIRISH JAYRAM VIVALKAR: May 2015

Friday 29 May 2015

Applicability of Model Standing Order – falling of prescribed strength as per the Industrial Employment (Standing Orders) Act, 1946.

It is common question in minds of those organizations who adhering model standing orders in their establishment under Industrial Employment (Standing Orders) Act, 1946. Therefore, to answer this query it can be said that once the Industrial Employment (Standing Orders) Act, 1946 becomes applicable to an establishment, thereafter even if the number of workmen falls less than the minimum limit as prescribed under Industrial Employment (Standing Orders) Act, 1946, it will continue to apply.

So the establishment can not take stance by stating that due to fall in employee headcount, the applicability of Model Standing Order under Industrial Employment (Standing Orders) Act, 1946 will not be applicable to their establishment. This has been decided in one of the case of High Court of Mumbai.

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Hope this small write up will give insight about pertained subject.

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We encourage you to take steps to obtain the most up-to-date information and to confirm the accuracy and reliability of any information on this blog in general by directly communicating with us.

Thursday 28 May 2015

Employee charge sheet for committing assault on other fellow employee outside office premises – The Industrial Employment (Standing Orders) Act, 1946

There are few questions which usually comes in mind of most of employer such as “can an employee be charge sheet under the standing orders of concerned organization for committing assault on fellow employee outside the office premises?”

To explain this, we will take reference of few cases which been decided in High Courts of Mumbai, Chennai, Kerala and Allahabad along with one of case of Supreme Court of India, which took the view that such misconducts although committed outside the office premises by any employee, if have proximate nexus with the affair of the organization, the employee concerned can be dealt with under respective standing orders applicable to said defaulter employee.

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Hope this small write up will give insight about pertained subject.

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Wednesday 27 May 2015

Applicability of Certified Standing Orders on newly joined employees in an organisation

It is known question among most of employers that will certified standing orders of organization be binding upon newly joined employees in case of those employees joined after the certification of standing orders.

To answer this we can take reference of one of the case of Supreme Court of India where it has been said that the certified standing orders will cover or bind all who will be employed at the time of service when the standing orders were certified, so it will also cover who been appointed after said certification of standing orders.

Therefore, it means that those employees who been part of an organization after the certification of standing orders from appropriate authority will be liable to follow same.

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Hope this small write up will give insight about pertained subject.

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ESI applicability when total number of employees fall below the agreed limit, as prescribed for ESI coverage

This query has easy explanation. To explain this we need to take reference of an amendment of the ESI Act in Section 1(6) of the Act with effect from 20-10-1989.

It has been mentioned in said amendment of the year 1989 that a factory or an establishment shall continue to be governed by ESI Act notwithstanding that the number of employees employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid of power.

Hope this small write up will give insight about pertained subject.

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Information regarding Maternity Benefit Bonus Payable Under Section 8 Of Maternity Benefit Act 1961

Dear All,

I have attach below the notification dated 19.12.2011 about Maternity Benefit Bonus Payable Under Section 8 Of Maternity Benefit Act 1961. In which it has been mentioned about increase in Maternity Benefit Bonus From Rs.2,500/- To Rs.3,500/-.

Further, as per Section 8 and Rule 5 of Act and Rules there under states that a woman entitled to maternity benefit under the Act shall also be entitled to receive from her employer a medical bonus of Rs. 3,500 rupees, if no pre-natal confinement and postnatal care is provided for by the employer free of charge.

To add up more, it should be noted that the medical bonus shall be paid along with second installment of the maternity benefit.

Hope this small write up will give insight about pertained subject.

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Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Tuesday 26 May 2015

Time limit for payment of bonus under Payment of Bonus Act, 1965

Most of employer has the question about “what is the time limit for payment of bonus to its employee under the Payment of Bonus Act, 1965”.

To answer this by taking reference of the section 19 of Payment of Bonus Act, 1965, which states that all amounts payable to an employee by way of bonus are to be paid:

1) Where there is dispute regarding payment of bonus pending before an authority under the Industrial Dispute Act, 1947 within one month from the date on which the award becomes enforceable or settlement comes into operation, in respect of such dispute; and

2) In all other cases within 8 months from the close of the accounting year.

Hope this small write up will give insight about pertained subject.

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Advance resignation of employee at the time of recruitment

This is bit odd question that “can resignation obtained from an employee at the time of said employee’s recruitment be used against him at later date?”

Being as one of the different question altogether, it can answer that such advance resignation before at the time of recruitment in the eyes of law are no resignation.

This is because the resignation was not voluntarily given by the employee but it was obtained by employer. Therefore the resignation without wish and will is no resignation at all.

Moreover, the resignation was obtained at a time when the employee was yet to commence his contract of employment. Therefore resignation prior to employment is also no resignation.

Besides, even assuming such resignation at later date falsely used by an employer stating that such resignation was given by the employee on a date from which his services were otherwise terminated or he was removed from services, such document is never considered as conclusive proof of resignation.

Hope this small write up will give insight about pertained subject.

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Saturday 23 May 2015

Notification- Bombay Shops and Establishments Act, 1948 for issuing Registration Certificate (RC) within 7 days

Dear All,

Please find below the recent Notification dated 18 May 2015 which issued by Government of Maharashtra in respect of Registration and Renewal Procedure under Bombay Shops and Establishments Act, 1948 and Rules there-under for Maharashtra state.

Hope this small information will give insight about pertained subject.

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Friday 22 May 2015

Procedure for holding a Domestic Enquiry under Industrial Employment (Standing Orders) Act 1946

I believe the topic which I choose for discussion has vast gravity and if I want to sum up in short format then it will be as follows:

The principles of natural justice and reasonable opportunity have a special significance in domestic proceedings.

Workman proceeded against has been informed clearly of the charges levelled against him. This means that, workman against whom an enquiry has to be held shall be given a charge-sheet clearly stating the charge put against him and ask him to submit his explanation.

Workman may be suspended pending the enquiry. He shall be permitted to appear himself for defending him or shall be permitted to be defended by a workman working in the same department as himself or by an office bearer of a trade union of which he is member. He shall be permitted to produce witness in his defense and cross examine the witness of the management.

In this process the Enquiry Officer shall record a concise summary of the evidence led on either side and the plea of the workman viz. what he wants to say about the charges put against him.

The proceedings of the enquiry shall be conducted in English, Hindi or in the language of the State where the industrial establishment is located according to the choice of the workman and the person defending him.

The enquiry should be completed within a period of three months. The enquiry officer should record his findings which should include brief reasons.

Hope this small write up will give insight about pertained subject.

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Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Amendment in Section 192A of the IT Act, 1961 - Instructions for deduction of TDS on withdrawal from PF

Dear All,

Please find attached latest circular from EPFO regarding "Amendment in Section 192A of the IT Act, 1961 - Instructions for deduction of TDS on withdrawal from PF".

The said update is for information only.

Thanks.

Girish Vivalkar
http://girishvivalkar979.blogspot.in/
B.Com, LLM, DCL, IPRL, M & A, DHRM, CS(Inter)

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Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Thursday 21 May 2015

Procedure under the Industrial Employment (Standing Orders) Act, 1946 – for certification of standing orders

The question “what is the procedure which employer has to follow for certification of standing orders under Industrial Employment (Standing Orders) Act, 1946?” is commonly asked question among most of individual and to answer this we need to take reference of section 3 to 6 of the Industrial Employment (Standing Orders) Act, 1946 which will be as follows:

1) The employer has to prepare a draft of the standing orders which employer proposes to adopt for its industrial establishment. The draft must make provision for every applicable matter specified in the Schedule appended to the Industrial Employment (Standing Orders) Act, 1946. It must be in conformity with the provisions of the Industrial Employment (Standing Orders) Act, 1946 and as far as possible; it should be in conformity with the prescribed Model Standing Orders.

2) Secondly, the employer has to submit the draft standing order prepared by them to the Certifying Officer for adoption in its Industrial Establishment which employer has to do within six months from the date on which the Industrial Employment (Standing Orders) Act, 1946 becomes applicable to said industrial establishment.

3) Thirdly, after receiving the draft standing orders the Certifying Officer has to call and hear the employer and the workmen concerned and decide whether or not any changes are necessary in the draft to make it certifiable under the Industrial Employment (Standing Orders) Act, 1946.

4) If the employer is aggrieved by the order of the Certifying Officer then said employer has to prefer an appeal to the Appellate Authority for the necessary relief. The order of the Appellate Authority will be final in that case.

Hope this small write up will give insight about pertained subject.

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Powers of Shops and Establishment Inspector under the Bombay Shops and Establishment Act, 1948

As per section 49 of Bombay Shops and Establishment Act, 1948 Shops and Establishment Inspector appointed under the Bombay Shops and Establishment Act, 1948 has following power-

1) To enter any place which is an establishment;

2) To make examination of the premises, registers, records and notices;

3) To take evidence of any person;

4) If Shops and Establishment Inspector suspects that an employer has committed an offence under section 52 or 55, to seize the necessary register, records or other documents and retain them for a reasonable period of examination thereof or for prosecution of the employer.

Hope this small write up will give insight about pertained subject.

IMPORTANT:

Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Wednesday 20 May 2015

Completion of 100 Blogs :)

Dear All Valued Blog Readers,

I want to shout my thanks out loud. I want everyone to know and hear how much I meant this legal blog which I tried to impart knowledge sharing with all of you. But more than that, I want to thanks all of you for supporting me in this process.

So with completion of these 100 blogs, I hope that I will receive same support through this journey of knowledge sharing and will able to get valuable inputs in form of feedback and suggestions in coming days.

Happy Thanksgiving!

Keep reading !!!!

With best regard !!!!

Girish Vivalkar

http://girishvivalkar979.blogspot.in/

B.Com, LLM, DCL, IPRL, M & A, DHRM, CS(Inter)

Tuesday 19 May 2015

Term “Wage” definition under Payment Of Wages Act, 1936

“Wages" means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes--

(a) any remuneration payable under any award or settlement between the parties or order of a
Court;

(b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period;

(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name)

(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;

(e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force;

but does not include--

(1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a Court;

98.(2) the value of any house-accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the State Government;

(3) any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon;

(4) any travelling allowance or the value of any travelling concession;

(5) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or

(6) any gratuity payable on the termination of employment in cases other than those specified in sub-clause (d).]

Hope this small write up will give insight about pertained subject.

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Sunday 17 May 2015

Applicability of Contract Labour (Regulation and Abolition) Act, 1970 to Construction site

The aforementioned term we can explain with the help of one example.

If a company having no activities or office at construction site owned by them and has assigned the work of construction to a construction company who has expertise in construction work, then in that scenario do said company require to obtain Registration Certificate under the Contract Labour (Regulation and Abolition) Act, 1970? This is because most of cases Company raise the query that as they are not having office or business activities carrying out in said construction site then in that case there will be no liability to apply/obtain Registration Certificate on that behalf under the Contract Labour (Regulation and Abolition) Act, 1970.

But, as per the decision of Supreme Court of India in one of the case, the principal employer, although has no trade, industry or business carrying out at construction site, still the construction of any building is the work of said company only. Therefore, said company is required to obtain certificate under the Contract Labour (Regulation and Abolition) Act, 1970.

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Hope this small write up will give insight about pertained subject.

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Information related to rates for Shops and Establishment License Fees for Maharashtra state

Dear All,

Please find attached information related to rates for Shops and Establishment License Fees for Maharashtra state for your further reference.

IMPORTANT:

Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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On account of work experience and difference in salary between male and female employee: - whether allowable under Equal Remuneration Act, 1976

As we all know that the Equal Remuneration Act, 1976 provides for the payment of equal remuneration to men and women workers for the same work or work of a similar nature and for the prevention of discrimination on the ground of sex against women in the matter of employment. But it does not mean that said Act’s this provision will be applicable in case where in one organization two employee viz. one male and another female, working for same type work but if male employee has more experience as compared to female employee, and if said female employee demands same salary of male employee on the basis of the Equal Remuneration Act, 1976, then in that case her claim will not be tenable under the Act for the simple reason that what is not permissible under section 4 of the Equal Remuneration Act, 1976 is discrimination on the basis of sex.

Thus, section 4 of the Act does not contemplate that there can be no discrimination at all between men and women in the matter of remuneration. Therefore, the discrimination in the matter of remuneration as mentioned above is not on basis of sex but rather it is on the basis of experience which is permissible.

To get the supporting case law for this do write us on girishvivalkar979@gmail.com

Hope this small write up will give insight about pertained subject.

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Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Saturday 16 May 2015

List of documents required for ESI Inspection under Employee State Insurance Act

Dear All,

Please find below list of documents required for ESI Inspection under Employee State Insurance Act:

1) Ledger

2) Cash Book, Bank Book

3) Sales/Purchase Register

4) Expenses Register

5) Petty Cash Book

6) Bills and Voucher supporting to any entries

7) Attendance Register

8) Employee’s & Employer’s Contribution Statement (EC Statement)

9) Wage Register

10) Employee’s Register (Form 7)

11) Return of Contribution (RC-Form 6)

12) Return of Declaration Forms (RDF – Form 3)

13) Receipted Copies of Challans

14) Accident Register

15) Inspection Book

16) Employer’s/Organization’s Bank Details

17) Shops and Establishment License

18) Contractors / Service provider details

Kindly note that the list is not exhaustive.

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Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Format of Rule 62 notices of minimum rate of wages fixed for the workmen at the site under CLRA Act

Dear All,

Please find attached format of Rule 62 notices of minimum rate of wages fixed for the workmen at the site under CLRA Act for your reference. The said format is commonly used format but it can be in different format as per requirement.

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Format of Form-11-Maternity Return under Rule 15 The Maharashtra Maternity Benefit Rules

Dear All,

Please find attached format of Form-11-Maternity Return under Rule 15 The Maharashtra Maternity Benefit Rules for your reference.

IMPORTANT:

Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Format of Form A - Register of HRA (House Rent Allowance) under Rule 4

Dear All,

Please find attached format of Form A - Register of HRA (House Rent Allowance) under Rule 4 for your reference.

IMPORTANT:

Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Implementation of ESI scheme for new areas in state of Chattisgarh under Employees' State Insurance Act, 1948

Dear All,

Please find attached circular related to implementation of ESI scheme for new areas in state of Chhattisgarh under Employees' State Insurance Act, 1948, the attached is one of page of said circulars, for full circular please write us on girishvivalkar979@gmail.com.

IMPORTANT:

Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Friday 15 May 2015

Implementation of ESI scheme for new areas in state of Andhra Pradesh under Employees' State Insurance Act, 1948

Dear All,

Please find attached circular related to implementation of ESI scheme for new areas in state of Andhra Pradesh under Employees' State Insurance Act, 1948, the attached is one of page of said circulars, for full circular please write us on girishvivalkar979@gmail.com

IMPORTANT:

Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Thursday 14 May 2015

Implementation of ESI scheme for new areas in state of Tamilnadu

Dear All,

Please find attached circular related to implementation of ESI scheme for new areas in state of Tamilnadu under Employees' State Insurance Act, 1948, the attached is one of page of said circulars, for full circular please write us on girishvivalkar979@gmail.com or juristicsolution@gmail.com

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Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Payment of Gratuity Act – Training period of employee included or not?

This is also one of the tricky question and can be explained with help of one small case study.

“If an employee who join in an establishment as a trainee (and not an apprentice as per Apprentices Act, 1961) and after completing of training that employee treats as probationer. Now in this case, if said employee resigned from the services and if he did not completes five years of services but if his training period is included in total year of his service, then he completes five years of service, then in that scenario what will be the status of that said employee’s gratuity payment?”

To answer this we will take reference of one of the decided case of Orissa High Court in which it has mentioned that, a trainee is different from Apprentice. According to this decision a trainee employed under contract of employment is not an apprentice under the Apprentice Act, 1961. Therefore, the exclusion is applicable only to Apprentice appointed under the Apprentice Act, 1961. In other cases the training period is to be included.

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Hope this small write up will give insight about pertained subject.

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Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Wednesday 13 May 2015

Karnataka Profession Tax- Amendment effective from 1st April 2015,

Dear All,

Please find attached notification related state of Karnataka Profession Tax- Amendment effective from 1st April 2015, the attached is one of page of said notification, for full notification please write us on girishvivalkar979@gmail.com or juristicsolution@gmail.com

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Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Payment of Gratuity – Abandonment of Services

The question related to “payment of gratuity in case of abandonment of service by an employee will be acceptable under law?” has more views from different individuals.

To interpret my view, it can say that as per decision of one of case of state of Kerala High Court, an employee who abandoned his post is not entitled to any gratuity as per section 4 of Payment of Gratuity Act, 1972.

An employee claiming gratuity under Payment of Gratuity Act, 1972 should establish that he falls in one of the categories enumerated in sub section (1) of section 4. Only on such proof employee can maintain the petition under the Payment of Gratuity Act, 1972.

To get the supporting case law for this do write us on girishvivalkar979@gmail.com

Hope this small write up will give insight about pertained subject.

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Information in this blog is being provided as-is without any warranty/guarantee of any kind.

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Sudden illegal strike by workers – right to remove from service by employer

The question “can management straightaway remove those workers who decided to conduct illegal strike?”

To discuss on this issue, it can say that the principle of natural justice is an integral part of all management actions against workers, which adversely affect the service conditions of the workers.

Apparently, with immediate effect removal of the workmen will not be an apt act on the part of employer. Such actions can be commenced only by issuing charge sheet, holding an enquiry and on the basis of fact findings of the Enquiry Officer; this question of removal of workers due to illegal strike can be resolved appropriately.

To get the supporting case law for this do write us on girishvivalkar979@gmail.com

Hope this small write up will give insight about pertained subject.

IMPORTANT:

Information in this blog is being provided as-is without any warranty/guarantee of any kind.

We encourage you to take steps to obtain the most up-to-date information and to confirm the accuracy and reliability of any information on this blog in general by directly communicating with us.