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“Indian Labour Law” Legal Case Study:- Usage of Vulgar Language

29 Nov

Labour Law Case StudiesThis is an attempt to compare the judgments delivered in the 1960 To 1990’swith that of judgments delivered from 2001 onwards. The Indian Economy has undergone significant changes after the introduction of liberalization and globalization. The Indian Judiciary has also taken a note of the prevailing circumstances and there is a different direction taken by the Indian Judiciary in the recent years.

 


USAGE OF VULGAR LANGUAGE

Earlier whenever the cases relating to usage of vulgar or abusive language reaches the court of law, the courts have taken a view that the workers basically came from the families of without much education background and they have grown in a society where usage of decent language was not possible. Therefore keeping in view of their social status, the courts have granted relief in favour of the workers even such misconduct was duly proved. Reference can be made to the case of Ramakant Mishra Vs State of UP reported in 1982 Lab ic page no.1790 SC.

However, now the Supreme court in the year 2005 LLR page 360 in the case of Mahendra and Mahendra Ltd., Vs. N.V. Naravade held that usage of abusive and filthy language against superior officer held that did not call for lesser punishment than dismissal.


Regards,

Pinal Mehta

Guidelines for the Preparation of Charge-Sheet

29 Nov

The object of the Charge -Sheet is to tell the delinquent what he is supposed or alleged misconduct during his employment. Under the Industrial law, there is no form prescribed for a Charge-Sheet hence it becomes more important to draft it more carefully with precision and clarify. The framing of a Charge-Sheet being the first necessity for disciplinary action and it is the main pillar for record purpose.

The Charge-Sheet should also take care to mention the particulars of time, place, occurrence and the manner in which the incident alleged to have taken places so as to remove vagueness and make the charge definite by mentioning these essential factors. (Just like provisions in the vegetable soup):

ESSENTIAL INGREDIENTS:

  • A Charge Sheet being root of the disciplinary action. When vague, will vitiate the whole proceeding hence the penalty imposed on delinquent will be quashed.
  • The object of a charge sheet is that the delinquent must know what he is charged with and have the adequate opportunity to meet the charges and to defend himself by giving a proper explanation.
  • A delinquent employee must be provided with the copies of the documents as relied upon by the Disciplinary Authority and the burden, to show that non-supply of documents required by the delinquent did not cause any prejudice to him, lies upon the Disciplinary Authority.
  • Failure to enclose the list of witnesses along with the charge memo will violate the Conduct Regulations; hence the entire disciplinary proceedings will be vitiated when it is so stipulated.

GUIDANCES:

  • The Charge-Sheet must be specific and must set out all the necessary particulars. It will serve no useful purpose at all to presume that the employee is fully informed of the charges because of any previous proceeding against him.
  • Any warnings that might have been given to a workman previously or from time to time or that his attention had been drawn to any fault, lapses on his part previously can, by no means, take the places of a regular enquiry.
  • Vague accusation, which the workman could not possibly follow, should not be made in the charge sheet.
  • The Charge Sheet must accurately and precisely state whether the act of commission or omission constituting misconduct is in violation of any Standing Order or not. The test is whether the charge conveys to the employee concerned, the exact nature of misconduct in a way that would enable him to meet the charge.
  • Where, for instance, the charge is for unauthorized collection of subscription on the work premises, the purpose for which such a subscription was collected need not be stated. But the time, date and place i.e. when and where the collection was made must be clearly mentioned.
  • When, under the Standing Orders or service rules, and act such as absence without leave, late attendance, negligence or disobedience is misconduct, when it is committed habitually then in such a case the word, habitual forms and essential constituent of the charge and must be expressly mentioned in the charge sheet.
  • If the charge is for arrogant conduct towards a superior, then it must be so stated in the charge sheet given in the occasion on which the misconduct was committed and in respect of which particulars.
  • When an employee is charged for habitually disobeying the instructions, then each set of disobedience on his part must be separately mentioned in details in the charge sheet.
  • When an employee is charged for using objectionable and offending language, then the actual words used must be stated in the charge sheet.
  • While verbiage is to be avoided, use of any abbreviations such as etc., must be equally shunned. Phrases such as any other document is vague and ineffective and so, only reference should be made to a specific thing or a particular person.
  • It is important to remember that the language of a charge sheet while being precise, must be give the impression that the employer has taken the question of the employee’s guilt as a foregone conclusion.
  • The delinquent employee be furnished with the documents and reports as referred to in the charge sheet otherwise his termination will be quashed.
  • As far as practicable the language of a charge sheet must be simple and be one that is commonly understood or in common usage.
  • When the previous record of the employee is relied upon, then sufficient particulars of the previous bad record should be specified in the charge sheet.
  • Another thing is , pm which caution is necessary, is to make use of the term about in relation to the date and time of a particular incident of misconduct.
  • A valid charge sheet must be in precise terms as there is no room for using loose or vague term which fails to convey, in the correct sense, a charge brought against an employee.
  • It is the duty of the employer to indicate to a delinquent employee served with the charge sheet not only the precise nature of charges, but also the documents, if any, upon which the charges are based.
  • The charge sheet must be signed by the competent authority.
  • A Charge sheet, issued after long delay of the misconduct, will vitiate the enquiry.
  • Another important, on request of the delinquent the employer may serve the charge sheet in his mother tongue (along with English version).
  • One of the fundamental rules of natural justice is that the person affected should have full and true disclosure of the facts sought to be used against him. He must know the nature of the misconduct alleged against him and must be acquainted with it in the first instance, it means that the charge sheet is the sine qua non of the domestic enquiry. The heart of the matter is that no disciplinary action can be initiated against the employee or a workman unless he is first served with a charge sheet containing all charges and their essential particulars. So while drafting a charge shet the attempt should be to ensure that the charge mentioned in the charge sheet is specific as well as complete in all essential constituents.
  • Principles of natural justice require that the person charged should know precisely the nature of the offence so that he may be able to explain what he has to say about it can prove innocence in the matter. Vague allegations should be avoided while drafting a charge sheet.

Model Chargesheet Form attached

Model Chargesheet Form - As per Industrial Law

 

 

 

 

 

 

 

 

 

 

Regards,

Pinal Mehta

EPF Update :- Industries with 10 employees under EPF purview now

12 Nov

EPF has update the latest limit for the employees that can be covered under the purview for bringing more organization under the scope of EPFO.

NEW DELHI: The Central Board of Trustees of the Employees Provident Fund Organisation (EPFO) on Saturday approved the reduction of threshold limit for establishments covered under the Employees Provident Fund and Miscellaneous Provisions Act (EPF & MP Act), 1952.With this, establishments employing even 10 people will be covered under the Act and would have to contribute towards Employees Provident Fund accounts as against the existing 20, barring cooperative institutions functioning without power, where the limit has been reduced from 50 to 20 employees. This decision was approved at the first meeting of the newly constituted EPF Board. This is the first time in 48 years that the threshold limit has been changed. However, the Board meeting, chaired by Minister of State for Labour and Employment (independent charge) Oscar Fernandes, deferred a decision on fixing the rate of interest for the EPF for the current financial year.

The second Labour Commission and the Standing Committee on Labour had also recommended reducing the threshold limit in order to reduce the gap between coverage under EPF & MP Act, 1952 and the total workforce of the country. The social security benefits provided under the Employees State Insurance Corporation (ESIC) Act are already applicable to establishments with 10 or more employees. Therefore, this approval would bring parity with the ESI Act with regard to coverage and would help in unifying the social security efforts of the government. It will also help in channelling the registration of establishments and members of both the ESIC and the EPFO

Source :- http://www.epfindia.com

Regards,

Pinal Mehta

Legal Case Study :- Absenteeism

11 Nov

This is an attempt to compare the judgments delivered in the 1960 To 1990’swith that of judgments delivered from 2001 onwards. The Indian Economy hasundergone significant changes after the introduction of liberalization andglobalization. The Indian Judiciary has also taken a note of the prevailingcircumstances and there is a different direction taken by the Indian Judiciary inthe recent years.

Earlier absenteeism even for a period of 5 years was not considered as a major misconduct. In a judgment the Supreme court in the case of Syed YakoobVs K.S.Radhakrishnan and others reported in AIR 1964 SC 477 is relevent which dealt with that termination on the ground of absenteeism and found that it was disproportionate and set-aside the termination and granted reinstatement withfull back-wages.

Whereas the Hon’ble Supreme court in the case reported in 2008 LLR 715SC Chairman & MD VSP and others Vs. Gokaraju Sri Prabhakar held that despite of opportunities granted him to report for duty, he failed to report duty – Absence justifies dismissal from service – High court cannot set aside a well reasoned order only on sympathy or sentiments – Once it is found that all the procedural requirements have been complied, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee.

Regards,

Pinal Mehta

Legal Tip :- Representation by a lawyer in enquiry rightly denied when the management is not represented by a legally trained person

2 Dec

Some workmen were found guilty of misconduct.

The management initiated an enquiry proceeding.

The enquiry was conducted by the management  about the alleged guilt of the workmen.

During the course of the enquiry, the workmen sought the assistance of a lawyer to help them in the enquiry proceedings.

But this plea was rejected by the enquiry officer.

The contention of workman was that the Presenting Officer was an experienced Personnel Manager and the workmen were illiterate and therefore they were not in a position to defend the charges leveled against them and so they should have been given the assistance of a lawyer.

The management contended that the Presenting Officer  was not a duly trained or experienced person in law and there was also no rules and regulation to the effect that the workmen in such type of enquiry would be entitled to get the assistance of a lawyer.

The Supreme Court held that when the management is not represented by a legally trained person, the workmen have no right to be represented by a lawyer.

Regards,

Pinal Mehta

Legal Tip:- A part-time worker is protected by the Industrial Disputes Act

2 Dec

A part-time worker is protected by the ID Act and cannot be fired at the will of employer

A part-time worker will be a workman and entitled retrenchment compensation as provided by section 25 F of the Industrial Disputes Act stating that termination without payment of retrenchment compensation will be illegal. A part-time worker can not be fired at the will of the employer since he /she is equally entitled to job protection guaranteed under the Industrial Disputes Act. Hence the termination will be treated as illegal and part-time employee will be entitled to reinstatement with consequential benefits.

Regards,

Pinal Mehta

FAQs – Employee Provident Fund

19 Nov

FAQ’s on Employee Provident Fund

Q1) What is the Contribution for Provident Fund both by the Employer & Employee ?
Ans : The Employee contributes 12% of his /her Basic Salary & the same amount is contributed by the Employer.
Q2) Is it Compulsory for the all the employees to contribute to the Provident Fund ?
Ans : Employees drawing basic salary upto Rs 6500/- have to compulsory contribute to the Provident fund and employees drawing above Rs 6501/- have an option to become member of the Provident Fund .
Q3) Is it beneficial for employees who draw salary above Rs 6501/- to become member of Provident Fund ?
Ans Yes because provident fund contribution by the employer & employee is not a taxable income for Income Tax purpose.

Q4) What if an employee while joining establishment has a basic salary of Rs 4200 and after some period of time his basic salary increases above Rs 6501/-, does he have an option to terminate his member ship form the Provident fund act?
Ans : Employee who while joining the organisation has a basic salary above Rs 6501/- have an option to either become or avoid becoming member of Provident fund but employees whose basic salary while joining the organisation is less then Rs 6501/- but after some period of time their basic increases above Rs 6501/- have to compulsorily continue to be member of provident Fund.

Q5) What is the contribution percentage to the Provident fund and Pension Scheme ?
Ans : Employers contribution of 12% of basic salary is totally deposited in provident fund account Whereas out of Employees contribution of 12% , 3.67% is contributed to Provident fund and 8.33% is deposited in Pension scheme.

Q6) Which form has to be filled while becoming member of provident fund ?
Ans : Nomination Form No 2 has to be filled to become a member of the Provident fund, form is available with HR department .

Q7 ) Which form has to be filled while transferring provident fund deposit ?
Ans : You just have to fill form no 13 to transfer your P.F amount.

Q8 ) What is the provision of the scheme in the matter of nomination by a member ?
Ans : Each member has to make a nomination to receive the amount standing to his credit in the fund in the event of his death. If he has a family, he has to nominate one or more person belonging to his family and none other. If he has no family he can nominate any person or persons of his choice but if he subsequently acquires family, such nomination becomes invalid and he will have to make a fresh nomination of one or more persons belonging to his family. You cannot make your brother your nominee as per the Acts.

Q9 ) When is an employee eligible to enjoy pension scheme ?
Ans : For an employee to become eligible for Pension fund, he has to complete membership of the Fund for 10 Years.

Q10 ) What does it mean by continuous service of ten years ?
Ans : When we say continuous service of 10 years in Employee Pension Fund, we mean to say that during services, for e.g., an employee who has worked with X company for say 3 years, then he resigned from that organisation and joined Y company, wherein he worked for 2 years, then resigned from there to join establishment for 5 years but during these 10 years of service he has not withdrawn but transferred his Employee pension fund, then we say continuous service of ten years.

Q11 ) When can an employee avail the benefit of Employee pension fund scheme which he has contributed during his ten years of continues service /
Ans : An employee can avail the benefit after completion of 58 years of service.

Q12 ) What happens to the provident fund & Employee Pension fund if an employee who wants to resign from the service before completion of ten years of continues service?
Ans : Employee can withdraw the PF accumulations by filling Forms 19 & 10 C which is available with the HR department.
Q13 ) What is this 19 & 10C form ?
Ans : Form No 19 is for Provident fund withdrawal & Form No. 10 C is for Pension scheme withdrawal.

Q14 ) Do we get any interest on the amount which is deposited in the Provident Fund account?
Ans : Compound interest as declared by the Govt. is given for
every year of service.

Q15 ) What is the accounting year for Provident fund account?
Ans : Accounting year is from March to February.

Q16 ) What are the benefits provided under Employee Provident Fund Scheme?
Ans : Two kinds of benefits are provided under the scheme-
a) Withdrawal benefit
b) Benefit of non -Refundable advances

Q18 ) What is the purpose of the Employee’s Pension Scheme ?
Ans : The purpose of the scheme is to provide for
1) Superannuation pension.
2) Retiring Pension.
3) Permanent Total disablement Pension
Superannuation Pension: Member who has rendered eligible service of 20 years and retires on attaining the age of 58 years.
Retirement Pension: member who has rendered eligible service of 20 years and retires or otherwise ceases to be in employment before attaining the age of 58 years.
Short service Pension: Member has to render eligible service of 10 years and more but less than 20 years.

Q19 ) How much time does it take to receive P.F & pension money if an employee resigns from the Service?
Ans : Normally the procedure for receiving P.F & Pension money is , the employee has to fill 19 & 10 c Form and submit the same to PF Desk , which is then submitted to the P.F office after two months, this two months is nothing but a waiting period as the rules are that an employee should not be in employment for two months after resigning if he has to withdraw his P.F amount. After completion of two months the form is submitted to the regional provident fund Commissioner office after which the employee receives his amount along with interest within a period of 90 days.

Q20 ) Do we receive money through postal order ?
Ans Previously there was a procedure wherein member use to get P.F through Postal order but now While submitting the P.F form withdrawal form you have to mention your saving Bank account No. & the complete address of the Bank where you hold the account.

Q21 ) How would I know the amount of accumulations in my PF account ?
Ans : PF office sends an annual statement through the employer which gives details about the PF accumulations. The statement contains details like, Opening balance, amount contributed during the year, withdrawal during the year, interest earned and the closing balance in the PF account. This statement is sent by the PF department on completion of the financial year.

Q22 ) Which establishments are covered by the Act ?
Ans : Any establishment which employs 20 or more employees. Except apprentice and casual laborers, every Employee including contract labour who is in receipt of basic salary up to Rs. 6500 p.m. is covered by the Act.

Q23 ) In case after registering the establishment at any point in time, the number of employees working in it becomes less than 20 then will the Act apply ?
Ans : Any establishment which has been covered under the Act once shall continue to be governed by the Act even if the number of persons employed therein at any time falls below 20.

Q24 ) Is the Act applicable to a factory which is closed down but is employing a few employees to look after the assets of the establishment ?
Ans : No, Where the establishment is closed down and only four security men are employed for keeping a watch over the assets and properties of the establishments, the Act would not be applicable.

Q25 ) Is a trainee an employee under the Act ?
Ans : Yes, a trainee would be considered as an employee as per the Act but in case the trainee is an apprentice under the Apprentice’s Act then he/ she will not be considered as an employee under this Act.

Q26) Is it possible to appeal the orders of the Central Government or the Central Provident Fund Commissioner ?
Ans : Yes, there is a body called as Provident Fund Appellate Tribunal where an employer can appeal.

Q27 ) Who is the authority to decide regarding the disputes if any ?
Ans : In case there is a dispute regarding the applicability of the Act or the quantum of money to be deducted etc. the authority to decide are the
i)Central Provident Fund Commissioner,
ii)any Additional Provident Fund Commissioner,
iii)any Additional Central Provident Fund Commissioner
iv)any Deputy Provident Fund Commissioner
v)any Regional Provident Fund Commissioner or
vi)any Assistant Provident Fund Commissioner

Q28 ) What in case there are workers involved as Contract labour ?
Ans : It is the responsibility of the Contractor to deduct the PF and submit a statement to the Principal Employer in the prescribed format by 7th of every month. The Company becomes the Principal Employer would be responsible for the PF deduction of the workers employed on contract basis.

Q29 ) Are the persons employed by or through a contractor covered under the Scheme ?
Ans : Persons employed by or through a contractor are included in the definition of ” employee ” under the Employee’s Provident Finds Act, 1952, and as such, they are covered under the Scheme.

Q30 ) In case the Contractor fails to deduct and submit the PF amount from the contract workers then what is to be done ?
Ans : The Company being the Principal employer is responsible for the PF to be deducted from the Contract workers as well. In case the Contractors fails to deduct and submit the PF dues then the Company has to pay the amount and can later on recover the amount from the Contractor.

Q31 ) Could the employer be punished in case the remittance of contribution by him is delayed in a Bank or post office ?
Ans : Employer cannot be punished or penalized in case there is a delay in the remittance of the contribution on account of delay in Bank or post office.
Q32 ) What happens in case there is a salary revision and a raise in the basic salary of the employee and arrears need to be paid, Do we need to deduct PF from the arrears as well ?
Ans : Arrears are considered to be emoluments earned by the employee and PF is to be deducted from such arrears.
Q33 ) Is it possible for an employee to contribute at a higher rate of interest than 12 % ?
Ans : Yes, if an employee desires to contribute an amount at a higher rate of interest than 12 % of basic salary then they can do so but it does not become obligatory for the employer to pay anything above than 12 %.This is called voluntary contribution and a Joint Declaration Form needs to be filled up where the employer and the employee both have to give a declaration as to the rate at which PF would be deducted.

Q34 ) What is the interest on the PF accumulations ?
Ans : Compound interest as declared by Central Govt. is paid on the amount standing to the credit of an employee as on 1st April every year.

Regards,

Pinal Mehta