Abstract of the Payment of Wages Act, 1936

Posted by & filed under Payment of Wages Act.

 

Abstract of the Payment of Wages Act, 1936

and the Rules made thereunder

 

Whom the Act affects

1.                The Act applies to the payment of wages to persons in the factory or industrial establishment receiving less than Rs. 400 a month.

2.                No employed person can give up by contract, or agreement, his rights under the Act.

Definition of Wages

3.                “Wages” means all remuneration payable to an employed person on the fulfillment of the terms of his employment.

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

(b)         Any remuneration payable in respect of overtime work or holidays or 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 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 payable under any framed under any law for the time being in force.

It does not include:

(1)         Any bonus which does not from 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.

(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 an 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 traveling allowance or the value of any traveling concession;

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

(6)         Any gratuity payable on the termination of employment in case other than those specified in sub-clause (d)

Responsibility for and Method of Payment

4.                The manager of the factory is responsible for the payment under the Act of wages to persons employed under him, and any contractor employing persons is responsible for payment to the persons he employed and in the case of an industrial establishment, the person responsible, if any, and employer are jointly and severally responsible for such payment.

5.                Wage-periods shall be fixed for the payment of wages at intervals not exceeding one month.

6.                Wages shall be paid on a working day within 7 days of the end of the wage-period or within 10 days if 1030 or more persons are employed.

7.                Payments in kind are prohibited.  However, when an employed person gets bonus exceeding one-fourth of his earning) exclusive of dearness allowance) for the year to which the bonus relates, such excess shall be paid or invested in the manner prescribed by the State Government.

Fines and deductions

8.                No deductions shall be made from wages except those authorized under the Act (See paragraph 9-16 below).  Any loss of wages resulting from the imposition for good and sufficient cause, of any of the following penalties, namely –

(1)         The withholding of increment or promotion (including the stoppage of increment at an efficiency bar);

(2)         The reduction to a lower post or time scale or to a lower stage in a time scale; or

(3)         Suspension-

In any case where the rules framed by the employer for the imposition of any such penalty are in conformity with the requirements, if any, which may be specified in this behalf by the State Government, shall not be deemed to be a deduction from wages.

9.         (1)          Fines can be imposed only for such acts and omissions as the employer may, with the previous approval, in the case of establishments, belonging to Municipalities of the Municipal Commissioner, or the Chief Officer, or Secretary, as the case may be, within whose jurisdiction the establishment is situated, and in other cases of the Chief Inspector of Factories, specify by a notice displayed at or near the main entrance of the Factory or industrial establishment and after giving the employed person an opportunity for explanation.

 

               (2)           Fines: –

(a)              Shall not exceed three paise in the rupee;

(b)              Shall not be recovered by installments, or later then sixty days of the date of imposition:

(c)              Shall be recorded in a register an applied to such purposes beneficial to the employed persons employed in the factory or establishment as are approved by the Municipal Commissioner, Chief Officer, Secretary or Chief Inspector of Factories, as the case may be, but in case of any factory or establishment to which the Bombay Labour Welfare Fund Act, 1953 applied all such realizations shall be paid into the fund constituted under the said Act.

(d)              Shall not be imposed on a child.

10.      (a)           deductions for absence from duty can be made only on account of the absence of the employed person at times when he should be working and such deductions must not exceed an amount which is in the same proportion to his wages for the wage-period, as the time he was absent in that period is to the total time he should have been at work.

 

(b)           If ten or more employed persons, acting and concert, absent themselves, without reasonable cause and without due notice, the deduction for absence can include wages for eighty days in lieu of notice but –

(i)                No deduction for breaking a contract can be made from a person under fifteen years or a woman.

(ii)              There must be a provision in writing which forms part of the contract of the employment, requiring that a specific period of notice of intention to cease work not exceeding fifteen days or the period of notice which the employer has to give to discharge a worker must be given to the employer and that wages may be deducted in lieu of such notice.

(iii)             The above provision must be displayed at or near the main entrance of the factory or industrial establishment.

(iv)             No deductions of the nature can be made until a notice that this deduction is to be made has been posted at or near the main entrance of the factory or industrial establishment.

(v)              No deduction must exceed the wages of the employed person for the period of which the notice he gives of leaving employment is less than the notice he should give under his contract.

11.              Deductions can be made for damage to or loss of goods expressly entrusted to an employed person or for loss of money for which he is required to account, where such damage or loss is due to his neglect or default.

 

Such deduction cannot exceed the amount of the damage or loss caused and be made only after giving the employed person an opportunity for explanation.

 

12.             Deductions can be made equivalent to the value thereof –

(1)          For house accommodation supplied by the employer or by Government or any Housing Board set up under any law for the time being in force (whether the Government or the Board is the employer or not) or nay other authority engaged in the business of subsiding house accommodation which may be specified in this behalf by the State Government; or

 

(2)         For amenities or services (other than the supply of tolls and raw materials) required for the purposes of employment, supplied by the employer.

 

The deductions referred to above can be made if house accommodation, amenity or service is accepted by the employed person as a term of his employment and in the case of amenity and service if such amenity or service is authorized by the order of the State Government.

13.    (a)   Deductions can be made for the recovery of advances, or for adjustments of overpayment of wages

(b)         Advances made before the employment began can only be recovered from the first payment of wages for a complete wage period but no recovery can be made of advances given for traveling expenses before employment began.

(c)          Advances of unearned wages can be made at the paymaster’s discretion during employment but must not exceed the amount of four months’ wages without the permission of an Inspector.

               These advances can be recovered by installments, spread over not more than 12    months and the installments must not exceed one-third or if the wages are not more than Rs. 20/- one-forth of wages for any wage-period.

14.              Deductions can be made for subscription to and for repayment of advances from any recognized provident fund.

 

15.              Deduction can be made for payments to co-operative societies approved by the State Government or to the postal insurance subject to any conditions imposed by the State Government.

 

16.              Deduction can be made with the written authorization of the person employed for payment of any premium on his life insurance policy to the Life Insurance Corporation of India or for the purchase of securities of the Government of India or of any State Government in furtherance of any savings scheme of any such Government.

Inspections

17.              An Inspector can enter on any premises, and can exercise powers of inspection (including examination of documents and taking of evidence), as he may deem necessary for carrying out the purposes of the Act.

Complaints of Deductions or Delays

18.              (1)       Where irregular deductions are made from wages, or delays in payment take place, an employed person can make an application in he prescribed form within one year to the Authority appointed by the State Government for the purpose.  An application delayed beyond this period may be rejected unless sufficient cause for the delay in shown.

 

(2)   An Inspector under the Act or a representative union registered as such under the Bombay Industrial Relations Act, 1946 or any law corresponding to that Act in force in any part of the State, or when authorities in writing by the employed person, any legal practitioner or official of registered trade union, or with the permission of the Authority, any other person can apply to the Authority for a direction under sub-section (3) of Section 1 on behalf of an employed person.  In case an employed person is dead, his legal representative can also make an application for a similar direction.

 

(3)   A single application may be presented by or on behalf of any member of person belonging to the same factory or industrial establishment the payment of whose wages has been delayed.

 

19.              The Authority may award compensation to the employed person in addition to ordering the payment of delayed wages or the refund of illegal deduction, it may also direct the payment of such compensation in cases, where the amount deducted or the delayed wages are paid by the employer to the employed person or his legal representative before the disposal of the application.

 

If a malicious or vexatious complaint is made, the Authority may impose a penalty not exceeding Rs. 50/- on the applicant and order that it be paid to the employer.

 

Appeal against the Authority

20.              An appeal against an order or a direction made by the Authority may be preferred within thirty days, in Greater Mumbai to the Court of Small Causes and elsewhere to the District Court.

(a)          by the paymaster if the total amount directed to be paid exceeds Rs.300 and the amount payable under the order appealed against is deposited with the Authority.

 

(b)         By an employed person or any legal practitioner or any official of a registered trade union authorized in writing to act on his behalf or a representative union registered as such under the Mumbai Industrial Relations Act, 1946 or any law corresponding to that Act in force in any part of the State or any Inspector under the said Act or any other person authorized by an Authority to make an applicant under sub-section (2) of Section 15 and in the case of death of the employed person by his legal representative, if the total amount of wages withheld from him or his co-workers, exceeds fifty rupees;

 

Punishment for Breaches of the Act

21.              Any one delaying he payment of wages beyond the due date, or making any unauthorized deduction from wages is liable to a fine up to Rs. 2000/- but only if prosecuted with the sanction of the State Government or any officer authorized by it in this behalf.  No court shall take congnisance of such complaint unless the application for refund of the amount deducted or for payment of delayed wages has been granted wholly or in part by the Authority or the Appellate Court.

 

22.            The paymaster who –

(1)          Does not fix a wage-period or

(2)          Makes payment in kind or

(3)          Fails to display at or neat the main entrance of the factory this Abstract in English and in the language of the majority of the employed person.  Or

(4)          Breaks certain rules made under the Act, is liable to a fine not exceeding Rs. 200/-

 

A complaint to this effect can be made only by the Inspector or with his sanction.

 

 

 

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Post Views: 480

Faq On Leave Travel Allowance

Posted by & filed under Income Tax.

Leave Travel Allowance

Que.: What is an LTA?
Ans.:- An LTA is the remuneration paid by an employer for Employee’s travel in the country, when he is on leave with the family or alone. LTA amount is tax free.
 
Que.: Who can claim for an LTA?
Ans.: If an employee is able to furnish the documents as a proof of travel, he can claim the expense of travel in the same year. The total cost of the holidays is not covered, only the travelling cost is covered.
 
Que.: What documents does an employee need to present to claim for an LTA?
Ans.: An employee must maintain proof of whichever means he has travelled by and wherever he has travelled in the country. The proof is inclusive of tickets, travel agent’s invoice or boarding passes as a proof against his travel which actually help during tax claims. These documents concerning with travelling indicate that an employee has travelled by a particular means of transportation.
 
Que.: How many members can an employee claim for LTA?Ans.: Employee and his family. An Employee’s family is inclusive of his siblings and parents who are dependent on him, spouse & up to two children. If your family is travelling without you, an LTA cannot be claimed, so for claiming LTA either an employee has to travel alone, or if his family is travelling, you have to be with them.
 
Que.: How can an employee get an LTA?
Ans.: An Employee is able to receive leave travel allowance if he has applied for leave from his company and has actually travelled.
 
Que.: How often can an employee travel using an LTA?
Ans.: The government fixes blocks of years. The current block is January 2010 to December 2013. The previous block is January 2006 to December 2009.

Que.: In what circumstances LTA is tax exempted?
Ans.: An LTA is tax exempted in case he or she travels by taking a shortest route. Travelling can be by economy class air fare, first class rail ticket or first class bus fare. If you cannot get a public transport and take a private like rent a car, get a bill issued by such rental company and can claim expenses equal to first class train fare.

Que.: Can the entire amount of travelling cost be claimed?

Ans.: Yes, the entire amount of travelling cost can be claimed.


Que.: Can both husband and working spouse claim for LTA?Ans.: No, LTA cannot be claimed twice for the same journey.

Que.: Can LTA be brought forward?

Ans.: Yes, if an Employee does not avail LTA during the block of 4 years, he can utilize the pending LTA in the first year of the subsequent block and thus can travel more three times in the same block of years.

 
Que.: How can Leave Travel Allowance be calculated?
Ans.: An employee and his wife are Employees having LTA Rs 20,000/- each as part of the salaries. He travelled with his wife and a child and the travel cost comes to Rs. 15,000/- which is claimable amount for tax deduction but the remaining Rs 5000/- is taxable. At the same time, his spouse cannot claim for tax deduction since at one time only one employer can defray the cost of travel. Only one person from a couple is able to receive benefits of LTA at one time. But if the spouse wants to claim her LTA for another travel she can claim LTA.
 
 
Post Views: 400

E-Passbook for provident fund account holders

Posted by & filed under Provident Fund - (Notification -Circulars).

A new facility has been introduced by the provident fund organization. Now the account holder of provident fund can download electronic passbook of their account. This facility is for the active account holder. This will help over 50 million provident fund subscribers who can access their account and download passbook and statement online.

The subscribers, whose employer already uploaded the return cum challan to provident fund account, can download the e-passbook every month in which all the debit and credit entries will be shown.

These are the features of new facility of e-passbook introduced by the EPFO department.

  1. The facility to download e-passbook is available on http://members.epfoservices.in/.
  2. The members of provident fund who have active account can download e-passbook every month if return cum challan is download by the employer of the member.
  3. Inactive members who have not settled accounts can request for a passbook.
  4. Provident fund members can register himself/herself with one of the ID proof as username and the mobile number as password. Id proof may be PAN card, Aadhar Card, Driving license, NPR, Passport, Voter ID card, Ration card etc.
  5. After registration one can download the e-passbook with their account.
  6. If there is no passbook available for download, the request will be added automatically and a sms will be send to the registered mobile number when the passbook will be available for download.
  7. Members can add multiple ID (identification) numbers after registration and can use any one for logging into their accounts.
  8. The e-Passbook shall contain transaction-wise details of account (all credits and debits) since the month for which the details for the establishment have been processed in new application software at the field offices.
  9. The e-Passbook shall contain transaction-wise details of account (all credits and debits) since the month for which the details for the establishment have been processed in new application software at the field offices.
  10. The facility, however is not available for the members under establishments that are exempted under the EPF Scheme 1952 (as the fund details are maintained by the Trust), Inoperative members (i.e in accounts where no contribution has been received during preceding 36 months).

However, the facility will have following restrictions:-

  • Only one registration is permitted against one mobile number.
  • The member can download the passbook for only one account number under one establishment. Thus in case he/she has worked for different spells in one establishment with different account numbers, he/she has to apply for the transfer of the old account to the new so that the credit may be reflected in the e-pass book of the new account.
  • To view the amount balance against any inoperative account also the member should apply for transfer and then the transferred amount will reflect as credit in the present account of the member.
Post Views: 512

Brief Note on Provident Fund Benefits & Withdrawals

Posted by & filed under Provident Fund Benefits.

Immediate settlement without waiting period of 2 months 
Settlement only after a waiting
period of two months
69(1)(a) Retirement after attaining 55 years of age.
69(1)(e)(i) transfer of a non retrenched employee from a closed establishment to uncovered establishment.
69(1)(b) Retirement on account of total and permanent incapacity due to bodily or mental infirmity .
69(1)(e)(ii) Transfer of an employee from a covered establishment to an un-covered establishment under the same employer.
69(1)(d) Termination of service on retrenchment.
69(2) Other cases viz. Resignation, Leaving service, etc.
69(1)(dd) Termination on V.R.S
Note: For female members leaving service for the purpose of getting married; waiting period not applicable.
69(1)(c) Migration from India for permanent settlement abroad or taking employment  abroad. 69(1)(e)(iii) Members discharged & retrenchment compensation paid under I.D. Act 1947.  

Settlement under para 70:

(Accumulation of a deceased member) throughForm No. 20

70(i) If a nomination exists, payment is made to the nominee in accordance with Form 2(R) . (Nomination and Declaration Form).

70(ii) If no nomination subsists, payment is to be made to every member of his family (as defined under para-2(g) of Employees’ Provident Fund Scheme 1952) in equal share. For the purpose of this paragraph, a member’s posthumous child, if born alive , shall be treated as a surviving child, born before the member’s death.
But the following will not be eligible for any share, if other family members are available to receive the accumulations. 

a.      Major sons ,

b.      Major sons of a deceased son ,

c.      Married daughters whose husbands are alive ,

d.      Married daughter of a deceased son whose husbands are alive. 

70(iii) In cases where para 70(i), 70(ii) , does not apply, the payment is to be made to the person who is legally entitled to it, vide para 70(iii). In case there is no nominee and also there is no person entitled to receive the amount, if the amount to the credit of the fund does not exceed Rs. 10,000/-, the Commissioner may pay such amount to the claimant after enquiry and after satisfying the title of the claimant.

When the payment is to be made to a minor, it is payable to : 

a.      The Guardian appointed under Guardian and Wards Act 1890 , failing (a), to

b.      The Guardian appointed by the member as per para 61(4A), failing (a),(b), to

c.      To the natural guardian of the minor, failing (a) (b) (c), to

d.      To the person , considered to be the proper person by the commissioner when the amount not exceeding Rs.20,000/- or the person considered to be the proper person , by the Chairman , C.B.T where the amount exceeds Rs. 20,000/- . Para-72(3)

When the payment is to be made to a lunatic person , it is payable to: 

a.      The Manager appointed for the minor’s estate under Indian Lunacy Act ,1912 failing (a),

b.      The natural guardian of the lunatic, failing (a)(b),

c.      To the person considered by the Commissioner as proper person , amount not exceeding Rs.20,000/- or to person considered by Chairman C.B.T as proper person amount exceeding Rs. 20,000/-. Para-72(3A)

Note: Maximum amount payable by money order is Rs.2000/- and beyond that by cheque. If the amount is beyond Rs. 500/-, the M.O. cost will be borne by the claimant.

Para 70(A):

If a person entitled to received a share in the Provident Fund accumulations of a deceased member is charged with committing the murder of the member or with abetting the crime, the share payable to such person shall be retained till the case is finalised . If, subsequently he/she is exonerated, the share will be paid to him/her. If such a person is found guilty and convicted, the share will be  paid equally to other person(s) entitled to receive the accumulations.

WITHDRAWALS

Types of Benefit
Eligibility
Eligible Amount
Form
Documentary Support
The purchase of site for construction of house
 
5 Years of membership of the Fund (Minimum balance in member’s a/c should be Rs. 1000/-)
* The purchase should be in favour of member or member &  spouse.
l 24 months wages (Basic & DA)
OR
l Member’s own share of contribution + Company’s share of Contribution with interest thereon
 
No.31
 
A declaration from the member that, dwelling site or dwelling house/flat or the house under construction is free from encumberances  and the same is under the title of the member or the spouse (notification dated 25.2.2000) 
The Construction of House  
5 Years of membership of the Fund

(Minimum balance in member’s a/c should be Rs. 1000/-)
* The purchase should be in favour of member or member &  spouse.

l 36 months wages (Basic+DA)
OR
l Members own share of contribution  + Company’s share of contribution with interest thereon
 
No.31
 
A declaration from the member that, dwelling site or dwelling house/flat or the house under construction is free from encumberances  and the same is under the title of the member or the spouse (notification dated 25.2.2000)  
The purchase of dwelling flat  
5 Year of membership of the Fund

(Minimum balance in member’s a/c should be Rs. 1000/-)
* The purchase should be in favour of member or member &  spouse.
l 36 months wages (Basic+DA)
OR
l Members own share of contribution  + Company’s share of contribution with interest thereon  
No.31  
A declaration from the member that, dwelling site or dwelling house/flat or the house under construction is free from encumberances and the same is under the title of the member or the spouse (notification dated 25.2.2000)   
Additions, Alterations or improvements to the dwelling house  
5 years from the date of completion of dwelling house
 
12 months basic or members own share of contribution with thereon.  
No.31
 

 68 BB : REPAYMENT OF LOAN

Types of Benefit
Eligibility
Eligible Amount
Form
Documentary Support
Advance from the fund for repayment of loan
10 years membership of the fund & member should have taken loan from Govt. Body
36 month wages (Basic + DA)
OR
Members own share of Contribution + Company’s share of Contribution with interest thereon.
No.31
 
A certificate from the lending authority furnishing the details of loan and outstanding amount.  

68 J : ADVANCE FROM FUND FOR ILLNESS

Types of Benefit
Eligibility
Eligible Amount
Form
Documentary Support
Advance from the fund for illness viz. hospitalisation for more than a month, major surgical operation or suffering from TB, Leprosy, Paralysis, Cancer, Heart ailment etc.
Stay in Hospital at least for a month
6 moths wages (Basic + DA)
No.31
A certificate from the Medical Practitioner for hospitalisation or operation.

68 K : ADVANCE FROM THE FUND FOR MARRIAGE

Types of Benefit
Eligibility
Eligible Amount
Form
Documentary Support
l Advance from the fund for Marriage of self/son/daughter/ sister/brother etc.
l Advance from the fund for education of Son/Daughter
l 7 years membership of the fund & minimum balance in member’s account should be Rs. 1000/-
l 50% of member’s own share of contribution
No.31
Declaration by the member which is attested by the employer.

 68L : ADVANCE IN ABNORMAL CONDITIONS

Types of Benefit
Eligibility
Eligible Amount
Form
Documentary Support
Grant of advance in abnormal conditions, Natural calamities etc.
l Certificate of damage from appropriate authority.
l State Govt. declaration.
l Rs. 5000/- or 50% of member’s own share of contribution (To apply within 4 months)
No.31
l Certificate from the Appropriate Authority.

68 M : ADVANCE TO MEMBER AFFECTED BY CUT IN THE SUPPLY OF ELECTRICITY

Types of Benefit
Eligibility
Eligible Amount
Form
Documentary Support
Grant of advance to members affected by cut in the supply of electricity
l The advance may be granted only to a member whose total wages for any one month commencing from the month of January 1973 were 3/4th or less than 3/4th of wages for a month
l Wages for a month
OR
l Rs.300/-
No.31
Certificate from State Govt. regarding cut in the supply of electricity.

68 N : GRANT OF ADVANCE TO MEMBERS WHO ARE PHYSICALLY HANDICAPPED

Types of Benefit
Eligibility
Eligible Amount
Form
Documentary Support
To Physically Handicapped member for purchase of an equipment required to minimize the hardship on account of handicap.
Production of medical  certificate from a competent medical practitioner to the effect that he is physically handicapped
Basic wages+ DA for six months
or own share of contribution with interest or cost of equipment which ever is least.
No.31
Certificate from the Medical practitioner to the effect that the member is physically handicapped..

Note: For calculation/ computing the period of membership U/P 68B, 68BB, 68K, total service exclusive  of periods of break under the same employer before the scheme is applied to him, as well as period of membership of the fund is always included.

 
Post Views: 496

Faq on international worker

Posted by & filed under Provident Fund -International workers.

1) Who is an International Worker?
An International worker may be an Indian worker or a foreign national.

– Any Indian employee working or having worked abroad in a country with which India has entered into a Social Security Agreement (SSA); OR

– Any foreigner working in India in an establishment where the Employees‟ Provident Funds & Miscellaneous Provisions Act, 1952 is applicable.

2) Who is an ‘excluded employee’ under these provisions?

A detached International Worker contributing to the social security programme of the home country and certified as such by a Detachment Certificate for a specified period in terms of the bilateral SSA signed between that country and India is an ‘excluded employee’ under these provisions.

3) Who all shall become the members of the Fund?

a) Every International Worker, other than an ‘excluded employee’ – from 1st Nov. 2008.

b) Every excluded employee, on ceasing the status – from the date he ceases to be excluded employee.

4) Which category of establishments shall take cognizance of these provisions?

All such establishments covered/coverable under the EPF & MP Act, 1952 (including those exempted under section 17 of the Act) that employ any person falling under the category of ‘International Worker’ shall take cognizance of these provisions.

5) Whether PF rules will apply to an employee if his salary is paid outside India?

Yes, the provisions will apply irrespective of where the salary is paid.

6) Whether PF will be payable only on the part of salary paid in India in case of split payroll?

In case of split payroll the contribution shall be paid on the total salary earned by the employee.

7) ‘Monthly Pay’ for calculating contributions to be paid under the Act?

The contribution shall be calculated on the basis of monthly pay containing the following components actually drawn during the whole month whether paid on daily, weekly, fortnightly or monthly basis:

Basic wages

Dearness allowance (all cash payments by whatever name called paid to an employee on account of a rise in the cost of living)

Retaining allowance

Cash value of any food concession

8) What portion of salary on which PF would be payable in case an individual has multiple country responsibilities and spends part of his time outside India?

Contribution is payable on the total salary payable on account of the employment of the employee employed for wages by an establishment covered in India even for responsibility outside India.

9) Is there a minimum period of days of stay in India which the employee can work in India without triggering PF compliance?

Every eligible International Worker has to be enrolled from the first date of his employment in India.

10) What constitutes pensionable service?

“Pensionable Service” means the service rendered by the member for which contributions have been received or are receivable and the period of coverage earned in another country and considered as eligible under a relevant social security agreement

11) Is there a cap on the salary up to which the contribution has to be made by both the employer as well as the employee?

No, there is no cap on the salary on which contributions are payable by the employer as well as employee.

12) Is there a cap on the salary up to which the employer’s share of contribution has to be diverted to EPS?

No, there is no cap on the salary up to which the employer‟s share of contribution has to be diverted to EPS, 1995 and the same is payable on total salary of the employee.

13) What is a Social Security Agreement (SSA)?

A Social Security Agreement is a bilateral instrument to protect the social security interests of workers posted in another country. Being a reciprocal arrangement, it generally provides for equality of treatment and avoidance of double coverage.

14) What are the provisions covered in a Social Security Agreement (SSA)?

Generally a Social Security Agreement covers 3 provisions. They are:

Detachment:
Applies to employees sent on posting in another country, provided they are complying under the social security system of the home country.

Exportability of Pension:
Provision for payment of pension benefits directly without any reduction to the beneficiary choosing to reside in the territory of the home country as also to a beneficiary choosing to reside in the territory of a third country.

Totalisation of Benefits:
The period of service rendered by an employee in a foreign country is counted for determining the “eligibility” for benefits, but the quantum of payment is restricted to the length of service, on pro-rata basis.

15) What is the status of the Social Security Agreements (SSA)?

As on 01.04.2011, three Social Security Agreements in respect of Belgium, Germany and Switzerland have been made effective from 1st September, 2009, 1st October, 2009 and 29th January, 2011 respectively. Apart from the above, SSAs have already been signed with France, the Netherlands, Czech Republic, Denmark, Hungary, Norway, Luxembourg, and Republic of Korea, but not yet made effective. Negotiations are at various stages with Canada, Quebec, Sweden, Australia, USA and Austria. Government level talks are on with many other countries where sizable numbers of Indian workers are employed.

16) Should the eligible employees from any country other than Belgium, Germany and Switzerland contribute as International Worker till such time the ‘date of effect’ of the SSA is notified for the particular country?

Yes, the International Workers from any country other than Belgium, Germany and Switzerland shall be enrolled as members of EPF till such time that the ‘date of effect’ of the SSA is notified by the Government of India and after such workers obtain a ‘detachment certificate’ from the appropriate authority in their countries. Till the ‘date of effect’ is notified, no Indian employee posted to these countries and none of the employees from these countries working in India shall be eligible for detachment status.

17) Regarding Indian employees working abroad and contributing to the Social Security Scheme of that country with whom India has a Social Security Agreement, are they coverable for PF in India or treated as excluded employees?

An Indian employee sent on posting to a country with which India has an SSA becomes an „International Worker‟ and is required to contribute on full salary. He can, however, seek exemption from the social security legislation of the country in which he is posted on the basis of a detachment certificate issued in terms of the SSA. If an Indian employee is directly employed by a local employer abroad, such an employee shall be covered by the foreign country legislation.

18) Regarding Indian employees working abroad and contributing to the social security scheme of a country with which India DOES NOT have a Social Security Agreement, are they coverable for PF in India?

If an Indian employee prior to his posting abroad qualifies/happens to be a contributing member of the EPF, he will continue to be a member of the EPF during his posting to a country with which India does not have an SSA.

19) Whether foreign nationals employed in India and being paid in foreign currency are coverable?

Yes, International Workers drawing salary in any currency and in any manner are to be covered.

20) Whether foreigners employed directly by an Indian establishment are coverable?

Foreigners employed directly by an Indian establishment would be coverable under the EPF and MP Act, 1952 as IWs and would not be eligible for the benefit of detachment under a SSA.

21) Considering that in most countries issuance of work permit to an individual is a trigger for social security compliance, whether the purpose and type of visa i.e. business/employment will be a determinant for a person to be considered as an International Worker?

The purpose of the visit of an individual is the main determinant for social security compliance. The type of visa may help in determining the purpose of visit. For example – a foreign national coming into India under an employment visa is deemed to be working in India.

22) Whether benefit of reciprocity can be extended to an International Worker if his home country provides for exemption from social security to Indian nationals going to work in that country under its domestic law even though there is no Social Security Agreement with India?

In the absence of a formal agreement, the benefit of reciprocity is not available to an International Worker. This implies that it is mandatory to enrol all International Workers, except those carrying a valid detachment certificate under an SSA.

23) What is the criterion for receiving the withdrawal benefit for services less than 10 years under EPS, 1995?

Only those employees covered by a SSA will be eligible for withdrawal benefit under the EPS, 1995, who have not rendered the eligible service (i.e. 10 years) even after including the totalisation benefit as may be provided in the said agreement. In all other cases, withdrawal benefit under the EPS, 1995 will not be available to International Workers for contributory service less than 10 years.

24) Where will the survivor benefits be delivered in case of a covered employee holding a passport, being other than an Indian passport, issued by a country with which India does not have a SSA?

In the absence of a SSA, the survivor benefits such as widow/widower pension, children /orphan pension, nominee/parent pension, etc. as the case may be, shall be payable to the bank account of the eligible beneficiary in India.

25) How long can an Indian employee retain the status of “International Worker”?

An Indian employee attains the status of “International Worker” only on account of employment in a country with which India has signed SSA. He/she shall remain in that status till the time he/she avails the benefits under a social security programme covered under that SSA.

26) Under what condition the contributions received in the PF account are payable along with interest?

The full amount standing to the credit of a member’s account is payable if anyone of the circumstances mentioned under amended Para 69 of the EPF Scheme, 1952 is fulfilled, namely:-

(i) On retirement from service in the establishment at any time after 58 years of age;

(ii) On retirement on account of permanent and total incapacity for work due to bodily or mental infirmity, duly certified by the authorised medical officer;

(iii) In accordance with the terms and conditions provided in an SSA.

27) Is there a cap on the salary up to which the contribution has to be made under the EDLI Scheme, 1976 by the employer?

Yes, the cap on the salary up to which contribution has to be made under the EDLI Scheme, 1976 remains unchanged at Rs. 6,500.

********** End of FAQs **********

Post Views: 434

Gratuity cannot be forfeited for an act involving moral turpitude which is not in the course of employment

Posted by & filed under Grautity.

In Vithal Rangnath Darekar Vs New India Insurance Company Ltd [2012 LLR 1027], the Bombay High Court has ruled that the right to receive gratuity is a statutory right and the gratuity cannot be forfeited due to conviction by criminal court for an offence (ie, kidnapping a girl) since such act does not come under purview of section 4(6)(b) of the Payment of Gratuity Act, 1972.
Section 4(6)(b) deals with forfeiture of gratuity and it reads as follows:
“The gratuity payable to an employee may be wholly or partially forfeited –
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.”
In the instant case, the petitioner was a sub staff of the respondent company and he was convicted for an offense of kidnapping a girl under section 363 and 344 of Indian Penal Code, directing to undergo rigorous imprisonment for four years together with fine. On the ground of his conviction by criminal court his services were terminated by the employer. He had rendered a service of 19 years and 2 months. He moved an application for gratuity before the Controlling Authority which, in turn, was rejected on the ground that the applicant has been convicted for an offence involving moral turpitude. He then challenged the decision before the High Court.
The High Court observed that the act of kidnapping a girl has nothing to do with the act of employment. The expression in section 4(6)(b)(ii) clearly suggests that such act involving moral turpitude must be caused in the ‘course of employment’. An employee is acting in the course of employment only when he is doing something in discharge
Post Views: 380

Welcome to blog

Posted by & filed under Uncategorized.

Hi All

I welcome everybody to visit my blog at blog.pcsmgmt.com.

I will keep you updated about various statutory requirements and changes in Labour Laws. Also invite your valuable suggestions and comments to my postings.

Thanks
Prakash Kagalwala
Prakash Consultancy Services

Post Views: 1,400