Employee
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The members of our Association appreciate the gesture of the government towards achieving of goal to Ease of Doing Business in talking historic decision by reducing rate of ESI contributions. However the time has come that the rate of contribution of provident fund be reduced substantially. While considering and average wage of Rs.8000 per month, the lowest paid employee will have to shell out Rs.960 per month which is substantial and unaffordable since his/her immediate necessities/requirements are more demanding. with sweeping changed in lifestyles priorities have also changed too.
How an employee spends, how he saves his money as earned by him, should be left to him. The employer's share of contribution also be paid to the employee every month. Thought casting heavy financial liability by an employer towards its matching share of contribution, no employee apperciates this invisible gesture. This aspect can be noticed that while attracting the candidates for employment or for retention of employees, the employers are compelled to mention this amount od EPF contribution as Cost to Company (CTC) Despite this reference in CTC, an employee is always concerned about his take home salary since deferred amount is not at all significant.
If the Scheme is not abolished it would be appropriate that insead of confiscating the hard earned wages the membership of the scheme should be optional for the employees.
- 1 -Althought the definition of 'employee' under section2(e) of the payment of Gratuity Act, 1972 does not spell out as to whether the director is an employee or not but it depends upon the fuctions or the duties performed by a director. it is, however made clear that that if a director of a Company is performing duties and is working for the Company then he will come within the purview of an 'employee' under the Act.
- 1 -The reasons for deviation from the rule of ' last come first go ' as contained in section 25-G of the industrial Disputes Act have to be shown on the face of the order of retenchment and could not be seen from other records of the employer where the services of junior employees were retained and the seniors were retrenched and when challenged , no justifiable reasons were given in support of the departure from the rule, it has been held that the retrenchment will be illegal.
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Pro-Forma Suggested For
An agreement between a candidate (employee and his surety whereby the employee is sent aboard for training and he will complete the training and after completion he will serve the employer for a period of.................... and in case of his failure either to quit the training and employment before the stipulated period he will be liable for damages and his surety also stand liable .
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Light work for ten weeks(Four weeks plus six weeks it she continues working) before the date of her expected delivery, if she asks for it.
Two nursing breaks in the course of her daily work until the child is 15 month old. No discharge or dismissal while she is on maternity leave.
No change,to her disadvantage, in of the condition of her service while on maternity leave.
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Create awareness on the presence of the Internal Committee and make known complaint procedures. Do not guide or lead the complainant to make statements Treat the complainant with respect Do not insist on a detailed description of harassment. This could increase the complainant’s trauma. Ensure that the body language of each member communicates complete attention to the complainant and the respondent Do not interrupt or allow interruptions when conversing with the complainant and / or Respondent Reject set ideas and stereotypes on how the Complainant or Respondent should appear or act. Do not determine the impact of the harassment on the complaint Be open to the fact, the sexual crimes are committed in privacy and eye witnesses may not be existing or forthcoming. Do not, under any circumstance, get aggressive Ensure safety for witnesses, friends and supporters of the complainant. Must handle complaints in a confidential manner and within a time-bound framework Do not discuss the complaint in the presence of the complainant or the Respondent Understand that it is difficult for a women to talk about anything sexual. Hence there can be long time interval between the harassment and the actual complaint Do not allow third parties to enter the room-be it for tea/refreshments. Stop proceedings when such things are taking place Understand that only one out of many may be subjected to Sexual Harassment. The complainant, when she complains, has at stake her personal life and career. Therefore, drawing up similarities or generalization should be avoided Remember, this is a human rights issue, therefore, (a) do not give too much weightage to intention, focus on the impact, and (b) ‘proof beyond reasonable doubt is not required, circumstantial evidence is enough.
- 1 -In one case it is held that a trainee in an establishment is liable to be treated as employee for coverage under Employees State Insurance Act 1948. The trainees other than those covered under the Apprentices Act,1961 would be treated as employees for coverage of an establishment under the ESI Act by virture of amendment in1989. The ESI Act being a piece of social security and welfare legislation is to be interpreted for the benefit of the employees belonging to weaker section.
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Those employees who are working for more than one employer on part-time basis are required to be covered under ESI Scheme and they can be covered by any one of the employer and you may keep a record of the employer who has covered such part-time employee including the name of the employee, code number of employee, name of employer, code number of employer as well as address of the employer.
- 1 -MINIMUM WAGES ACT, 1948 – Section 2(b) – Appropriate Government :-
Claim of minimum wages – Workmen engaged through contractor raised claim before appropriate Government of Central Government – Petitioner challenged the notice issued by Central Government Authority under the Act – Held, workmen are employees of contractor and not of Bank – Hence, workmen are entitled to claim minimum wages payable by State Government and not by Central Government – Appropriate Government is the State and not Central Government – Contractor is covered under Section 2(b)(ii) and not under Section 2(b)(i) as an employer of the workmen – Petition is disposed of accordingly. Para 5
For Petitioner: Mr. Partha Sarathi Sengupta, Senior Advocate a/w other Advocates.
For Respondents: Mr. Raj Kumar Gaurisaria and Other Advocates
IMPORTANT POINTS
Workmen engaged by Bank through contractor are employees of contractor and not of Bank.
• Workmen are entitled to claim minimum wages payable by State Government and not by Central
• Government since the Appropriate Government is the State and not Central Government.• Contractor is employer of the workmen covered under Section 2(b)(ii) and not under Section 2(b)(i) of the Minimum Wages Act, 1948.
JUDGMENT
PER ARINDAM SINHA, J.—1. A Private Bank has moved Court by this writ petition. It has challenged initiation of conciliation proceedings by respondent no. 3 to 6 on issue of minimum rates of wages payable by his client wholly without jurisdiction and ab initio void. Mr. Sengupta, learned senior advocate appears on behalf of petitioner-Bank and submits, his client is principal employer. Through contractor workmen are employed to render services required for security in his client’s ATM counters and other places. These workmen are not employees of the Bank. They are employees of the contractor. Any issue regarding their terms of employment, as a dispute to be adjudicated, must be between them and their employer. On such dispute resulting in a finding enforceable against their employer, corresponding obligation may arise upon his client as principal employer. He refers to annexure- ‘P9’ in the writ petition, being letter dated 6th March, 2018 issued by the authority under Government of India, Ministry of Labour & Employment, requiring his client to attend conciliation on dispute raised by West Bengal Thika Mazdoor Sangh & Others Union against purportedly, management of his client. According to him, this cannot be done since an issue arising in relation to Minimum Wages Act, 1948 requiring conciliation must be initiated by appropriate Government as defined in clause (b) of section 2 of said Act. It cannot be disputed that contractor is employer of these workmen. Contractor does not come within sub-clause (i) in clause (b) of section 2 of the said Act. Therefore, ‘contractor’ is covered by sub-clause (ii) in clause (a) of section 2. As such appropriate Government is State Government which, if feels necessary, might require initiation of conciliation proceedings. Hence, he seeks interference.2. Mr. Gaurisaria, learned advocate appears on behalf of Union of India and submits, notice dated 25th May, 2017 of ‘strike’ was issued by Bengal Provincial Banks’ Contract Employees’ Association with copy marked to an authority of Central Government. This ‘strike’ was intended against petitioner- Bank in relation to which Central Government is appropriate Government. Hence, Central Government initiated conciliation proceedings in which petitioner- Bank has refused to participate. There should be direction for it to participate in conciliation proceedings, failing which there may be failure report and further action taken in accordance with law.
3. Mr. Paul, learned advocate appears on behalf of respondent no. 11 and submits, no notice under section 9-A of Industrial Disputes Act, 1947 was given by the Bank, on effecting downward revision in minimum wages paid to workmen through contractor. The Bank was paying minimum wages per Central rate. It then decided and implemented payment of minimum wages at State rate but without statutory notice. Whether or not dispute exist is to be ascertained in conciliation proceedings, which the Bank is not attending and has challenged by way of this writ petition. He submits further, dispute is really by reason of position taken by the Bank. So, therefore, appropriate Government is Central Government in relation to it. Mr. Paul relies on section 21 in Contract Labour (Regulation and Abolition) Act, 1970 to submit, contractor has failed to make payment of wages at Central rate which is why sub-section (4) in section 21 stands attracted and applicable to petitioner-Bank. As such, there should be no interference.
4. Mr. Roy, learned advocate appears on behalf of Kolkata Zilla Security and Allied Services Workmen’s Union and submits, though his client is a participant in the conciliation proceedings but petitioner has not implemented it. He submits, conciliation proceedings were initiated in year, 2017. It is only now that the Bank has come up with this challenge. It should be thrown out on ground of delay.
5. It will appear from above submissions that there is no dispute raised regarding workmen being employees of contractor. Contractor, it appears, has caused downward revision in pay in line with making applicable minimum wages payable at State rate, being below Central rate. This was effected in tandem, on the Bank having so reduced. However, so far as the dispute is concerned it is between workmen-employees against their employer, contractor. Contractor, it has been successfully demonstrated, comes under sub-clause (ii), clause (b) of section 2 of Minimum Wages Act, 1948. Facts in this case are similar to facts in case decided by order dated 3rd August, 2011 by a learned Single Judge of this Court in WP 4895 (W) of 2011 [Susanta Naskar v. Union of India], as relied upon by Mr. Sengupta.
6. In facts and circumstances aforesaid, this Court finds appropriate Government in relation to contractor, against whom dispute can be raised by workmen, is State Government. Aggrieved workmen must approach State Government for redressal, whether initially by conciliation or straightway reference of apprehended dispute. Petitioners are entitled to declaration that they are not obliged to attend conciliation proceedings initiated by Central Government.
7. Kolkata Zilla Security and Allied Services Workmen’s Union is added as party. Petitioner is given liberty to amend cause title in Court, to be countersigned by Assistant Court Officer. Amended copy of writ petition must be served on added respondents.
- 1 -It is immaterial whether the employees are working for 22 days or more in a month. The gratuity will be calculated as if an an employee is working for 26 days in a month. Reference is made to one case, decided by Bombay High Court, wherein it has been held that the payment of gratuity to an employee working in an establishment for 22 days in a month will be calculated @ 26 days 'working in a month.'The Madras High Court has also followed the ratio as laid down by the Bombay High Court.
- 1 -There is a fundamental distinction between leave and holidays. Holidays are off-days granted by the employer to the workmen either voluntarily or compulsorily under the force of law.'Holiday is a total closure of work, whereas leave is absence with permission from work which would otherwise be available. Hence, for leave, there should be an application by individuals every time and the sanction thereof, whereas for a holiday, no such thing is necessary. In case of leave, the workmen would be free to avail themselves of the same according to the pressing needs of individuals of one day or more days at a time. In one case, while distinguishing the leave from holidays, it has been held that in this connection referenve can be made to item (4) of Schedule III to the Industrial Disputes Act, 1947 which is the terms 'Leave with Wages and Holidays'. This shows that holidays stand on a different footing altogether from leave with wages and a reference for adjudication made by the Appropriate Government to the industrial tribunal with respect to leave with wages and a reference for adjudication made by the Appropriate Government to the industrial tribunal with respect to leave facilities cannot include a consideration of holidays.
- 1 -Eligible service, as defined under para 9, is the period of service for which pension contribution has been paid or payable. A new entrant HR manager, as obvious, will be drawing pay more than Rs. 15000 PM hence he/she will not be eligible for pension membership as per para 6 as amended by GSR 609(E) dated 22.08.2014 effective from 01.09.2014.
- 1 -"Commissioner" as defined under paragraph 2(d) of the EPF Scheme, 1952 is, generally, the authority to resolve any doubt and also to clarify. Under paragraph 26B, the Regional Commissioner is the authority.
- 1 -No. It is the employers' share which provides benefit of the judgments and para 11(3) of EPS Scheme, 1995.
- 1 -The inherent clarification of the present judgment and of the SC judgement dated 04.10.2016 in the case of R.C. Gupta is that if contribution on higher salary in to EPF account has been paid as employers' , it treated as deemed option under para 26(6) of the EPF Scheme, 1952.
- 1 -Yes, they will. Procedure yet has been formulated is that employee has to submit his willingness under para 11(3) through his employer, who has to give details of the contribution with that of the difference payable with interest and forward it to the EPFO office for verification. After verification, the EPFO will intimate the amount payable by the employee/member concerned. On refund of such amount, further action will be taken by the EPFO.
- 1 -Member having Family need nominate from amongst the family members only. Mother, if dependent may qualify for nomination, but 'Brother' not being included in the definition of 'Family' provided for in Para-2 (g) of the EPF Scheme, 52 will no be permissible.
- 1 -Any Nomination made before marriage will become invaild upon marriage of the member as per proviso under para-61(3) of the EPF Scheme; 52 Thereafter a fresh nomination is to be executed.
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There is no parameter as prescribed and as such the total wages can be justifiably segregated between basic and house rent allowance.
- 1 -Medical benefit means the medical attendance and treatment to the insured persons covered under the Act and their families as and when needed. This is the only benefit provided in kind through the State Governments including Model Hospitals run by ESI Corporation (except in Delhi), and uniformly to all as per their requirement without linking it to their wages and contributions.