Ashvin Khambhata
12 November 2009 at 10:02
I have terminated one employee during pendency of charter of demand after completing inquiry &at the same time I have filled apprroval application in labour court .May i know wheather relation exit as aemplpyee & employer during pendency of approval application?
ASHVIN KHAMBHATA
Anonymous
12 November 2009 at 09:30
As per terms of appointment letter
"If at any future date after confirmation, on assessment of your performance, it is found that your continuance in employment is not beneficial to the company or you are found unfit or unsuitable for service in the company, your service can be terminated by giving you three months notice or payment of three months’ salary in lieu thereof. Similarly, you may also have the option of leaving the services of the company after confirmation by giving three months’ notice in writing to the company Or payment of three’s month salary in lieu thereof.”
In case resignation is accepted.And the individual serve till that time served mentioned in resignation letter but Co. is posing more time to releave. If the employee leave the company before getting releaving letter.As it may be intention of the HR to Harras the employee.
Questions
- Is any legal notice issued by any advocate on behalf of the company to the employee is having any legal santity.
-Can the company avoid/delay setllement of due of employee. Which includes-Extra TDS deducted but not paid to Deptt, Incentive,PF, Supper-annuation Balance etc.
-Is there any relief is available to employee.Even though he has tried his level best to resolve the issue amicable way.
Is there any Case laws suporting the stand taken by the employee.As appointment letter is clear there is neither the pre-condition nor any obligation cast by appointment letter to get releaving befor leaving the company other than to pay 3 month salry in lieu of notice. Person is heading responsible position in organisation and he has served one month after giving resignation which is more thn the period mentioned in resignation letter.
Please advise
skg
12 November 2009 at 00:24
Dear legal experts
Please proide your useful advice on the following queries related to procedures
followed by a labour court:
From start and upto end What are the stages in a labour case before the award is declared
and nowdays what is the maximum time limit given in our law to finalize a labour case?
What procedure a workman is required to adopt when he get a less salary job after 2 years
of fighting his reinstatement case of illegal termination and the case is still in
progress in the labour court?
Should he withdraw his illegal termination case and file it for recovery of his full salary
and other benefits like retenchment compensation as per sec 25F upto the period he remain
unemployed or owing to his getting less salary he can still continuue the case of
reinstatement with full backwages and consequential benefits?
rgds
skg
HARISH GOVIND ADAKE
11 November 2009 at 21:53
MY CLIENT HAD RESIGNED FROM RAILWAYS AFTER 8 YEARS OF SERVICE. THE RAILWAYS HAD REFUSED TO PAY HIM ANY GRATUITY AS PER THE RAILWAY SERVICES PENSION RULES, 1993. HE HAD RESIGNED AS PER HIS WISH AND NOT WITH AN INTENTION TO JOIN OR START ANY NEW BUSINESS OR SERVICE OR PROFESSION.
I THINK THAT HE IS ENTITLED TO GET PROPORTIONATE SERVICE GRATUITY.
Anonymous
11 November 2009 at 17:14
DearSir
May i know wheather during pendency of approval application eployee& employer exsist ? Pl give judgment
Raghavan R
11 November 2009 at 14:46
Can any one share the national festival holidays detail for 2010
Anonymous
11 November 2009 at 10:42
I am serving National ins. co. as a dev. Officer since 1982 & governed by the The General Insurance (Rationalization of Pay Scales and other conditions of Service of Development Staff) Scheme 1976 was amended time-to-time. WE all Dev. Officers have to work under two cost ratios one for Increment & other for Incentives.
Some Definitions for your reckoned:
(a) Cost: - for the purpose of Paragraph 11, 11-A and 13, cost shall mean GROSS EMOLUMENTS paid to the Development Officer during a performance year, i.e. Core Benefits.
(b) Cost Ratio: - the ratio expressed as percentage of cost incurred on a person of the Development Staff to the scheduled premium income procured through him during the year concerned.
(c) Stipulated Limits of Cost Ratio: - specified in sub-Clause (C), Clause (17) of Paragraph 3 that cost ratio, applicable in relation to Paragraph 11, 11-A and 13 is 9%, 10% and 12% for ‘A’ Class Cities, ‘B’ Class Cities and ‘C’ Class Cities respectively, on ASPI.
(d) Core Benefits: - benefits that a development officer gets as GROSS EMOLUMENTS, aggregate of Basic Pay, Dearness Allowance, Hill Station Allowance, House Rent Allowance and City Compensatory Allowance.
(e) Non-core Benefits: - benefits such as Transport Allowance, Entertainment Allowance, and Telephone Allowance incurred to procure premium.
(f) ASPI:-the premium procures by a Development officer such category policies specified in the Paragraph 12 of the scheme, the premium on this count the same is credited to his account with double benefit is called Adjusted Schedule Premium Income (ASPI).
(g) Cost: - for the purpose of Paragraph 11, 11-A and 13, i.e. for Increment cost shall mean GROSS EMOLUMENTS paid to the Development Officer during a performance year, i.e. Core Benefits.
(h) Cost Ratio: - the ratio expressed as percentage of cost incurred on a person of the Development Staff to the scheduled premium income procured through him during the year concerned.
(i) Stipulated Limits of Cost Ratio: - specified in sub-Clause (C), Clause (17) of Paragraph 3 that cost ratio, applicable in relation to Paragraph 11, 11-A and 13 is 9%, 10% and 12% for ‘A’ Class Cities, ‘B’ Class Cities and ‘C’ Class Cities respectively, on ASPI.
(j) Core Benefits: - benefits that a development officer gets as GROSS EMOLUMENTS, aggregate of Basic Pay, Dearness Allowance, Hill Station Allowance, House Rent Allowance and City Compensatory Allowance.
(k) Non-core Benefits: - benefits such as Transport Allowance, Entertainment Allowance, and Telephone Allowance incurred to procure premium.
(l) ASPI:-the premium procures by a Development officer such category policies specified in the Paragraph 12 of the scheme, the premium on this count the same is credited to his account with double benefit is called Adjusted Schedule Premium Income (ASPI).
TABLE
DEVELOPMENT OFFICER OPERATING AT COST RATIO
[1] [2]
APPLICABLE IN RELATION TO PARAGRAPHS 11,11A and 13 For Increment APPLICABLE IN RELATION TO PARAGRAPHS OTHER THAN 11,11A and 13For Incentives
A) Cities with Population exceeding 12 Lakhs 9% 7%
B) Cities with Population of 5 Lakhs and above, but not exceeding 12 Lakhs 10% 8%
C) Other Centers 12% 10%
In 2003, The General Insurance (Rationalization of Pay Scales and other conditions of Service of Development Staff) Scheme 1976 was amended time-to-time and this scheme was further Amended in 2003, wef -01. 04. 2003, which was unilaterally and Detrimental to the interest of the Development Officers, so the said amended Development Staff Scheme-2003 was challenged in the various Hon’ble High Courts, in which the interim order to maintain status quo was passed, on or before 31.03.2003. Therefore, this amendment Scheme-2003 could not implement wef -01.04.2003. Ultimately, the writ petitions were transferred to the Hon’ble Supreme Court of India and disposed off vides a common judgment dated 03.04.2008, vide which they were dismissed, During the intervening period from the performance year 2003-04 to 2007-08. Since the amended Development Staff Scheme 2003 was in abeyance due to stay order passed by the various Hon’ble High Courts, all the Development Officers including me were bound to procure insurance premium. According to the old Development Staff scheme prior to 2003 i.e. the provisions and conditions of service of Development Officers was remained continued to be governed by the same and in effective the provisions of the earlier amended Development Staff Scheme 2000 wef - 01.04.1999. Which was in force and accordingly company have already realized me all the benefits i.e. annual increments, non-core benefits and other related benefits to me, as per provisions of the old Scheme 2000 prior to 2003.
The Hon’ble Supreme Court of India Judgment dated 03.04.2008 and gazette notification dated 19.06.2008 of the Amended Development Staff Scheme 2008. That the judgment of the Hon’ble Supreme Court of India dated 03.04.2008 is silent with regard to the intervening period from the performance year 2003-04 to 2007-08. Wherein the interim order passed by the various Hon’ble High Courts was in operation. However, as per the directions of the Hon’ble Supreme Court, the another Scheme known as the General Insurance (Rationalization of Pay Scales and other conditions of Service of Development Staff Amendment Scheme 2008 was notified on 19.06.2008, in it was categorically mentioned that although the scheme shall be deemed to have come in to force on the 01.04.2003. However, there was an Explanatory Memorandum, in which in clause - 2, there is clear undertaking mentioned that
It is certified that No Development Officer of the companies is likely to be affected adversely by the notification being given retrospective effect.
According to As per the Sub Clause (C) of Clause 17 of Paragraph 3 of the Scheme of 2008, i.e. @ 7%, 8% and 10% for ‘A’ Class Cities, ‘B’ Class Cities and ‘C’ Class Cities respectively, incurred Cost Ratio calculated on SPI and COST included all the expenses i. e core and non-core benefits and others allowances.
But, on 17/9/2009, I received a letter from my Divisional Office regarding - non-core and Decrement recovery on the basis of amended scheme.
Now, I have given a representation in reply to that letter. The contents are as under:
To,
The Divisional Manager,
National India Insurance Co. Ltd,
AGRA
Reg: - Wrong Recovery on account of Excess Cost Ratio and Decrement relating to the intervening period of Interim order maintaining the status-quo from the performance year 2003-04 to 2007-08.
Ref: - Your letter dated 19.01.2009 regarding - non-core and Decrement recovery
Respected Sir,
In-connection with above, I received your referred letter dated 19..01.2009, regarding - non-core and Decrement recovery, with instructions to immediate deposit the recovery amounting Rs. 2,11,776, on account of excess cost ratio, in the head of non-core benefits for the period from 2004-05 to 2007-08. In addition, you have withheld my non-core benefits wef 01.01.2009, which you are paying me, based on performance year 2007-08. You have also given written instructions to the accounts Department to recover the incentives amounting Rs. 56,620, which paid me based on performance year 2006-07 and also to implement Decrement provisions by reduction in my basic pay of previously earned 2 annual increments, which is related to the previous performance Years from 2003-2008. You have also inform me that you are going to implement the provisions of Transfer and Mobility Policy for Development Officers by transferring me to another station, on the ground of excess cost ratio continuously three or more years. In this regard, I would like to draw your kind attention that during said intervening period from 2003-2008, my incurred cost ratio was within the stipulated limits. On that basis, your good self released all my benefits, but at this stage, the recovery demanded by you, in the referred letter is totally injustice, illegal and arbitrary. So kindly immediately waive the all the demanded recovery and stop the implementation of Decrement and T M P provisions. I am protesting such type of imposed above provisions and exparte excess cost recovery, I am submitting the facts and arguments in brief for your kind consideration & perusal, as under: -
1. That my incurred cost ratio during the intervening period 2003-04 to 2007-08 was within stipulated limits, as specified in sub clause (C) of clause (17) of paragraph 3, Paragraph 11 (1) and 13 of the effective Development Staff Scheme. Resulted you have already been released my all the related benefits, during the performance Year from intervening period 2003-04 to 2007-08, i.e. non-core benefits, annual increments, incentives and others benefits. But in the performance Year 2009-10, now at this stage you / the management is saying that my incurred cost ratio during said was exceeded the stipulated limits of the cost ratio. I would again like to draw your kind attention that, if due to excess cost ratio, I was not entitled to get any annual increment, non-core & other related benefits and I was also deserve for Decrement. Then why you released my said the benefits and why you paid such amount and rears to me & why not implement the Decrement and T M P provisions, wef 01.04.2003 to till date?
2. The General Insurance (Rationalization of Pay Scales and other conditions of Service of Development Staff) Scheme 1976 was amended time-to-time and this scheme was further Amended in 2003, wef -01. 04. 2003, which was unilaterally and Detrimental to the interest of the Development Officers, so the said amended Development Staff Scheme-2003 was challenged in the various Hon’ble High Courts, in which the interim order to maintain status quo was passed, on or before 31.03.2003. Therefore, this amendment Scheme-2003 could not implement wef -01.04.2003. Ultimately, the writ petitions were transferred to the Hon’ble Supreme Court of India and disposed off vides a common judgment dated 03.04.2008, vide which they were dismissed, During the intervening period from the performance year 2003-04 to 2007-08. Since the amended Development Staff Scheme 2003 was in abeyance due to stay order passed by the various Hon’ble High Courts, all the Development Officers including me were bound to procure insurance premium. According to the old Development Staff scheme prior to 2003 i.e. the provisions and conditions of service of Development Officers was remained continued to be governed by the same and in effective the provisions of the earlier amended Development Staff Scheme 2000 wef - 01.04.1999. Which was in force and accordingly you have already realized me all the benefits i.e. annual increments, non-core benefits and other related benefits to me, as per provisions of the old Scheme 2000 prior to 2003.
3. I would again like to draw your kind attention that the management misinterpreting the Hon’ble Supreme Court of India Judgment dated 03.04.2008 and gazette notification dated 19.06.2008 of the Amended Development Staff Scheme 2008. That the judgment of the Hon’ble Supreme Court of India dated 03.04.2008 is silent with regard to the intervening period from the performance year 2003-04 to 2007-08. Wherein the interim order passed by the various Hon’ble High Courts was in operation. However, as per the directions of the Hon’ble Supreme Court, the another Scheme known as the General Insurance (Rationalization of Pay Scales and other conditions of Service of Development Staff Amendment Scheme 2008 was notified on 19.06.2008, in it was categorically mentioned that although the scheme shall be deemed to have come in to force on the 01.04.2003. However, there was an Explanatory Memorandum, in which in clause - 2, there is clear undertaking mentioned that
It is certified that No Development Officer of the companies is likely to be affected adversely by the notification being given retrospective effect.
In-spite of giving above clear undertaking in the gazette notification dated 19.06.2008, you are directly affecting adversely to me by imposing exparte recovery on account of Excess Cost ratio and Decrement, as per the provisions of Amended Development Staff Scheme 2008 by giving retrospective effect, wef 01.04.2003, for the period from performance Year 2003-04 to 2007-08. In the mid session of Performance Year- 2009-10 is totally injustice, illegal and arbitrary.
4. All the Development Officers including me were continuing functioning under the old Development Staff scheme prior 2003 i.e. the amendment scheme 2000, which was in-force due to interim order to maintain status quo was passed by the various Hon’ble High Courts. Resulted I and they are liable to be granted the benefits accrued to me for the period during the intervening period from the performance year 2003-04 to 2007-08, in view of the interim order to maintain status quo. In case the amendment scheme 2008 allowed to retrospective effect, I and many Development Officers shall be suffer irrecoverable loss, as salary and other emoluments are likely to be affected adversely substantially due to no fault on mine / theirs part and this is also violation of the given undertaking in the above notification.
5. Sir, I again want to draw your kind attention that the excess payment of emoluments to the Development Officers including me, during the intervening period from 2003-2008 was made to the Development Officers including me, not on account of any misrepresentation or concealment on our part. But on account the stay granted by the various Hon’ble High courts due to which the scheme of 2003 was in abeyance and the companies continued to function under the scheme prier to 2003, under which on Yearly basis the payment was made by you voluntarily according my each & every performance year. It is settled law that recovery cannot be effected from an employee for any payment made, if the same is not on account any misrepresentation or concealment on the part of the employee.
6. It came in to my notice that at this stage the management/ your good self is going directly to implement the provisions of sub-Paragraph (4) of Paragraph 11 and so, during the performance Year 2003-04 to 2007-08, I strongly oppose this act of imposing the exparte recovery of Excess Cost, on account of non-core benefits and Decrement and intentionally adopting such type of procedural lapses & attitude, without first implementing sub - Paragraph (2 to 3) of Paragraph 11, in those cases, where if the Development Officers including me, who exceeded the stipulated limits of cost ratio, as specified in sub clause (C) of clause (17) of paragraph 3, without pre implemented the provisions, specified in sub-Paragraph (2) and (3) of Paragraph 11 of the Development Staff Scheme, which provisions are mandatory and should be implemented first, before demanding and giving any type of instructions of recovery or started deduction of any Excess Cost recovery, on account of non-core benefits and or Decrement and also without pre providing the bifurcated details of the demanding recovery amount of each and every Head & Year wise to me including respective the Development Officers, in those cases where the incurred cost Ratio is actually exceeding the stipulated limits, as specified in sub clause (C) of clause (17) of paragraph 3, in this way the management intentionally violating the norms / procedure of Excess Cost recovery, on account of non-core benefits and or Decrement provisions, such action of the management is totally injustice, illegal and arbitrary.
7. That as mentioned above, the management failed to implement the provisions of Excess Cost recovery and or Decrement, which provisions must be implemented year wise step by step, as specified in sub-Paragraph (2) to (9) of Paragraph 11 of the Development Staff Scheme, if any Development Officers including me exceeded the specified stipulated limits. The following provisions must be implemented as under, during the intervening period from 2003-2008: -
i. In sub Paragraph (1) of Paragraph 11, as specified every Development Officer shall work with such cost as to maintain his cost ratio within the limits stipulated in sub clause (C) of clause (17) of paragraph 3, which is Mandatory.
ii. In sub Paragraph (2) of Paragraph 11, as specified that if the incurred cost ratio in respect of a Development Officer for a particular first performance year (i.e. 2003-04) exceeds the stipulated limits, in this situation. The non core allowance payable to him in the following performance year i.e. 2004-05 shall be reduced to the extent of the amount by which his cost ratio exceed the stipulated limits but in any condition you cannot reduced in May-2009.
iii. In sub Paragraph (3) of Paragraph 11, as specified that, if in respect of a Development Officer, incurred cost ratio is in excess of Stipulated limits for the Second Performance year (i.e. 2004-05), in succession. In this situation he may be issued a warning letter that in the event of his cost ratio exceeding stipulated limits for third (i.e. 2005-06) or subsequent performance year and so in succession (i.e. 2006-07, 2007-08), then he shall be liable to decrements in basic pay as indicated in the table of sub - Paragraph (4 and so) .
8. However, during the intervening period from the performance year 2003-04 to 2007-08, No such warning letter has issued to me. Which was mandatory to improve my and theirs performance to escape such recovery, on account excess cost & Decrement in advance but you straight away the impugned recovery notice with recovery of non-core benefits and decrements has been issued to me. Now you cannot issue such warning letter to me, because at this stage I have lost such opportunity, in the entire period from performance year 2003-04 to 2007-08.
9. That during the intervening period under which the scheme prior to 2003 was being followed by you the insurance companies and Development Officers including me was working on the basis of the guidelines laid-down by the same. In case, you the insurance companies are allowed to enforce the Development Staff Scheme 2008 with retrospective effect, the salary of the Development Officers including me shall be reduced substantially due to on account of his excess costs & decrements, which are being affected upon the Development Officers including me. The amount of premium to be accumulated by Development Officers including me in order to save him-self from excess costs & decrements is astronomical as it is not possible for the Development Officers including me to accumulate the premium, he would have accumulated in five years, at once.
10. That as per the scheme prior to 2003 under which the Development Officers including me were functioning in terms of the order of status quo, the Development Officers including me were being given the benefit on the basis of Adjusted Schedule Premium Income (ASPI), according to which those Development Officers including me. who procured insurance policies from the rural and other specified areas Non Traditional Business (NTB) were given double credit for calculating the cost ratio for increments, Non-core and other benefits to be granted. Now you are denying, after released all the benefits, during the intervening period of interim, order to maintaining the status-quo for the period from the performance year 2003-04 to 2007-08, which is very wrong, injustice, illegal and arbitrary.
11. In the light of above mentioned facts, kindly immediate provide me following relief : -
i. The amended Development Staff Scheme -2008, wef 01.04.2003, cannot detriment to me, which notified on 19.06.2008; however, there was an Explanatory Memorandum, in which in clause – 2. There is clear undertaking mentioned, “It is certified that No Development Officer of the companies is likely to be affected adversely by the notification being given retrospective effect.” In spite of that, this is affecting adversely to me as mentioned above by given Retrospective Effect. Therefore, it should be implemented prospective effect from the performance year 2008-09 wef 01.04.2008, after pronounced the Hon’ble Supreme Court case judgement to onward, instead of Retrospective Effect wef 01.04.2003.
ii. kindly immediate stop my excess cost recovery, on-account of non-core benefits, incentives and or decrement and implementing TMP provisions at the earliest, during the Interim order intervening period of maintaining the status-quo from the performance year 2003-04 to 2007-08..
iii. Kindly waive my all the demanding recovery amount of all the benefits on account of excess cost ratio, which amount you have already released me, as per provisions of the operative scheme, prier to the General Insurance (Rationalization of Pay Scales & other conditions of Service of Development Staff) Scheme-2003. During the intervening period of interim, order to maintaining the status-quo for the period from the performance year 2003-04 to 2007-08.
Therefore, you are, requested to kindly look in to the matter personally in the light of previously mentioned facts and immediate provide me all the above demanded relief.
Thanking You,
Yours faithfully,
(S. K. Sharma)
Development Officer
One more thing SC has said,
It was further clarified that if the scheme is prima facie discriminated it is open to challenge.
Now, advice me that,
1. Can I challenge the co. for making these changes in any court?
2. If yes, then in which court & under which sections.
3. What plea should I take in my writ?
4. Our union should take the matter in court or in individual capacity.
Legal_Query
10 November 2009 at 16:01
Dear Friends,
pls suggest relevant citiation regarding grant of Maternity Leave.
is there any citation regarding the period of maternity leave.
thnks and rgds
Anonymous
10 November 2009 at 12:28
Dear Experts,
A salesman is employed with a company based in Haryana and his name is registered with the company. But, he is carrying on the sales work in Mumbai. There is no office of the said company in Maharashtra.
Therefore, Labour Laws of which State will apply to the salesman? Labour Laws of Haryana or Maharashtra?
please answer, its urgent..
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