Amaresh Patel
31 January 2016 at 23:11
Is an order without any signature of the authority genuine if not followed by a hard copy?
Amaresh Patel
31 January 2016 at 20:58
Am I eligible for getting special leave for submission of my defence statement /brief in rule 14 enquiry. If yes whom to write the application IO/LEAVE SANCTIONING AUTHORITY
Isaac Gabriel
31 January 2016 at 17:49
The date of birth of an employee was recorded as 19-12-1945 at the EPF office. But his actual date of birth is 19-12-1944. The mistake has been traced only now as the employee applied for weightage in pension.The EPF office refuse to correct its records stating there is no provision for making corrections after a lapse of 12 years.The EPF Appellate Tribunal also declined stating such cases are not taken up at the Tribunal. What is the remedy?
Chaitanya
31 January 2016 at 15:11
Hello all respected experts.
I have queries relating to a case. I wanted your invaluable opinions on this case. Would be highly obliged.
In an organisation incorporated under the Companies Act, 1956; there was an employee who was appointed as the Director of Academic Research. He was appointed in the London Branch of the organisation. The organisation was an academic organisation that was for profit and had the business of coaching students.
He was employed on a contractual basis for a minimum of 3 years and he could not leave the organisation before 3 years as per the terms of the contractual agreement signed by Mr. A, the appointed director of Academic Research and the management of the company.
It is clearly stated in the agreement that Mr. A has to complete a minimum period of 2 years before deciding to resign and has to give a notice of 3 month before resigning. And it i stated that if any dispute arises pertaining to any term in the agreement in future, the matter shall be referred to arbitration wherein 3 arbitrators shall be appointed. One from the employer companies side, one from Mr. A's side and the third arbitrator will be appointed by these 2 arbitrators so appointed.
Mr. A was appointed in the company in December 2012. After 31st March, 2013, Mr. A stopped attending the meetings and was served notice to attend the meeting on 10th June 2013. On 15th June 2013, Mr. A sent his resignation to the company, which is before completion of 2 years from his joining.
The Company, in a responsive against this act of Mr. A, which violated the arbitration clause, appointed an Arbitrator from it's side and sent a letter to Mr. A for appointing his arbitrator. Mr. A did not reply to this notice.
Mr A had access to the proprietary notes and material information of the organisation and concerning the safety of these documents, the employer organisation approached the Bombay HC and pleaded this fact. Mr. A rebutted that Bombay HC has no jurisdiction as Mr. A is a British national.
The company revoked it's pleading and filed the same in SC of India. In it's pleading before the SC, the company stated that that Mr. A should not misuse the documents and that he should appoint an arbitrator from his side as per the provisions laid in Arbitration and Conciliation Act, 1996.
Mr. A says that his services are not of commercial nature and that he is an employee of the organisation and that his services are not commercial in nature.
I would request the experts to guide me as to
i) what pleadings can Mr. A put before the
Hon'ble SC of India?
ii) Are the pleadings of the employer organisation before the SC justified?
iii) What are the actual legal rights and obligations of each of the parties?
The organisation is the Appellant and Mr. A is the Respondent in this matter.
sachin agarwal
31 January 2016 at 14:12
This is the settled law that overtime allowances are excluded from basic wages in terms of the provident fund contribution under the act, 1952. Section 2(b) of the provident fund at has expressly excluded overtime allowances from the definition of basic wages under the provision of the act, 1952. There is genuine distinction between normal and additional working hours and such a distinction should not be made a device to deprive workers of the provident fund. Therefore, remuneration paid for additional working hours and payment of overtime allowance is not included in basic wages. That overtime has not been defined and therefore for the meaning of overtime or the definition one has to look into the dictionary meaning or the Precedents if any. According to Chambers, overtime would mean time employed in working beyond the regular hours and work done in such time of pay for such work and according to Webster law dictionary, means time in excess of the that limit or working time in excess of standard day or week. It is very much clear from the definition of various dictionaries and various opinions that overtime is something which is done not on time but thereafter.
Cases was rightly held that plucking of extra leaves within working hours was not overtime but overwork under time.
That it is also settled position that good work Reward is not overtime but overwork under time.
That the act, 1952 is for the purpose of socio economic object and the contributory provident fund scheme framed thereunder is provided for the benefits of the employees working in the factories, industries and establishments therefore the employees working there may have the economic security for his maintenance during his old-age after the retirement. Thus, the words and phrases used by the establishment for in the matter of payment of allowances, wages, etc are to be interpreted and understood so as to advance the benefits of these provisions of the bennevolent piece of legislation to the beneficiaries thereof.
sachin agarwal
31 January 2016 at 13:55
The 7A authority under section 7A of the act, 1952 is authorise to work for the benefits of the eligible employees for the benefits of provident fund contribution therefore the 7A authority can examine the illegalities of the provident fund contribution under the PF code allotted to the employer by the PF authority. Being a 7A authority, the authorities works as a question judicial authority therefore it is the obligation on the part of the authority to follow the rule of natural Justice at the time of hearing of both the parties where one of the party is the enforcement officer representative on behalf of the Department and second party the employer and any other appropriate person who is entitled to join the enquiry before the enquiry officer. The 7A authority after duly performed the obligation under section 7A of the act, 1952 can examine the applicability and determination of the PF dues for the benefits of eligible employees. It is the necessary ingredient of the enquiry to follow the rule of natural Justice and the used the power in accordance with the provision of settled law in the light of the various decisions of the appropriate appellate authority and Hon'ble Supreme Court and Hon'ble High Courts. That the any person aggrieved from the impugned order passed by the 7A authority can move the appropriate application for the re-examination of the enquiry finalised by the 7A authority. Although there are so many limitations to move the review application under section 7B of the act, 1952 but the basic rules that the rule of natural Justice should be followed and the enquiry should be concluded in due compliance of the facts and circumstances as well as law in the right perspective for the due benefits of eligible employees. Although there is not a specified form to file an application for review under section 7B of the act, 1952 but certain grievances should be reflected under the settled law in the review application filed by the aggrieved person where the re-examination of the 7A enquiry can be reopen. The application under section 7B should be moved within a specified time as prescribed under the law and if the application is within a specified time then the reviewing authority should be issued the notice to the applicant and if the 7B authority dismissing the application without hearing the voice of the applicant is clearly violation of the principle of natural Justice.
The above discussion is the personal opinion of the author and therefore the discussion cannot be used for any illegal purpose.
sachin agarwal
31 January 2016 at 12:31
This is the settled law that in case the dues under the provident fund contribution for the certain employees is due from the part of the employer will be determined only with respect to those employees who are identifiable and whose entitlement can be proved on the evidence, and in the event the record is not available, it would not be obligated to explain its loss, or any adverse inference be drawn on this score.
Where the employer is engaged in the construction industry and in the said industry the employer has employed certain long-term employees for whom the provisions of the provident fund act, 1952 and a scheme thereunder are being followed regularly, yet there are certain casual workers who come to work at the construction sites of the employer for a address, then these work men not been identifiable and it is practically very difficult, in fact almost impossible, to comply with the requirements of the provident fund scheme in respect of such migrant labourers. Therefore, the order of the authority for provident fund contribution without a finding about identifiablity of the employees cannot be sustained.
That the conclusion is that if the identification of the employees for whom benefits of the product contribution is entitled to be made and it is not possible practically and almost impossible to collect the details of the proper identification of such unidentified employees, the order of the provident fund authority is unjustified and therefore cannot be sustained in the eyes of law because the provident fund contribution is not a tax but this is the fund for the benefits of eligible employees and if there is no proof of address of those eligible employees the benefits of the provident fund contribution cannot be handed over to the those eligible employees in accordance with the provision of law.
shruti gupta
31 January 2016 at 11:50
Good day experts
I m employed in an aided school affiliated to u.p. board in firozabad since 7 years. I was selected through selection commission. I m basicaly from kanpur.since my only brother died in an accident, I m the lone child of my parents. Becoz of the demise of my brother my mom hav been suffering from high B P and kidney shrinkage. She needs full-time complete care and my father is also old. I have a 2years old child .my husband is employed in merchant navy and remain on ship half of the year. So responsibility to bring up my child is up to me only.
Now it has become very tough for me to continue my job from firozabad so I need to take transfer to Kanpur.
But the management committee is not willing to give me noc.
So experts I need ur kind advice whether there is any provision to get noc from management committee.
Thanks in advance
Shruti gupta
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Loss of seniority
Respected Learned members,
As per service rule of my cadre an employee is eligible for promotion to the post of Accounts Officer provided he has rendered 6 yrs of service as Sr. Accountant.
In 2009, the govt reviewed the cadre strength and 10 post of Accounts Officer were increased. Myself and other 9 were given promotion to the post of Accounts Officer on officiating capacity only in January 2009 as we were yet to complete 3 months more service as Sr. Accountant.
But the Govt. absorbed us as Accounts Officer under Substantive Capacity in July 2013 only as a result our next promotion is going to be due in 2018 only.(again 6 yrs from date of absorption in substantive capacity as AO)
Our request to the Govt is that since we held the charge of Accounts Officer in 2009 and no doubt we have not qualified to be absorbed under Substantive Capacity just by 3 months so the confirmation as substantive post may be treated at least from April or May 2009 thereby treating us to have rendered 6 yrs of service under substantive capacity as AO so that there may not be loss of 4 and half years in our seniority.
But the DOPT is not ready to accept our request.
So my request to the learned members is to provide necessary support if anything can be done in this matter or not.