Inside this issue - naip.in filePF Commissioner to impose damages not exceeding the arrears within ceiling. The relevant Regulations 32-A and 32-B are neither inflexible nor fetter

Inside this issue:

News 2-5

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FAQ on ESIC 6-8

___________________________________

Amendments & Notifications 9-17

___________________________________

Important glance on Case laws 18

___________________________________

Compliance Check-up 19

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May 2012: Volume 3: Issue 6

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NATIONAL ACADEMY OF INDIAN PAYROLL

NAIP MUMBAI OFFICE: 5

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TH FLOOR, CRD SAMARTH, S.V. ROAD, OLD KHAR WEST, MUMBAI-400452, INDIA

PHONE: +91 9223192904, E-MAIL: [email protected] NAIP LONDON OFFICE: 1, ARNE STREET, CONVENT GARDENS, LONDON, WC2E9, PHONE: +91 9223192904, E-MAIL: [email protected] Page 2

COVERING APPRENTICES UNDER CERTIFIED

STANDING ORDERS NOT LEGAL

The appeal of the appellant, against the order dated 15.09.2011 of the EPF Authority treating the apprentices as regular employees of the appellant, is illegal as the apprentices are exempted from the provisions of the Act.

The Hon'ble Appellate Tribunal observed that apprentices were engaged under the certified standing orders and they were being paid stipend as per the apprenticeship agreement. Such apprentices were neither regular worker nor entrusted to perform regular work of the employer. Apprentices are engaged only in learning the skills. Investigating Officer has not recorded any evidence to establish factum of their regular employment. Even as per report of the Inquiry Officer, some of the apprentices have left the establishment before completion of their training course. No clear findings are there to establish that the apprentices were not getting any training and they were performing regular duties. Such apprentices are having no right to regular appointment as per certified standing orders. Their engagement is for a limited period. They are getting remuneration in the shape of stipend. Hence, they cannot be treated as regular employees. The impugned order passed by the EPF Authority is not sustainable. Hence, appeal is allowed and order of the EPF authority under challenge is set aside.

5% DAMAGES FOR LATE DEPOSIT JUSTIFIED

DUE TO SICKNESS OF ESTABLISHMENT

The appeal of the appellant, against the order dated September, 2009 of the EPF Authority passed under sections 14-B of the Act directing the appellant to make payment of damages, is illegal.

The Hon'ble Appellate Tribunal observed that section 14-B does not mandate that damages must follow in the event of every default. This section confers discretion upon the PF Commissioner to impose damages not exceeding the arrears within ceiling. The relevant Regulations 32-A and 32-B are neither inflexible nor fetter the exercise of power conferred by the provisions of the enactment but guide and channelise the exercise of discretion. Liability of damages does not arise automatically. It requires application of mind by the deciding authority and the merits of each case are to be considered avoiding resorting to arithmetically calculations following any straight-jacket formula. Officer conducting enquiry has not followed the law in correct perspective. There is no finding that the appellant has willfully and deliberately with-held the PF contribution and also the Inquiry Officer has not exercised its discretion keeping in view the provisions of law. Establishment of the appellant requires all assistance for its survival and rehabilitation. Impugned order suffers from legal infirmities and is liable to be quashed. Hence, restricting the damages up to 5% per annum on the arrears of contribution would meet the ends of justice. Appeal is disposed of accordingly.

FACEBOOK HIRES U.P. BOY AT RS.1.34 CR

Facebook has offered an engineering student from Allahabad a $2, 62,500 (Rs.1.34 crore) annual pay packets.

The final year BTech student of Moti Lal Nehru National Institute of Technology (MNNIT) has requested his name be withheld for security reasons.

Taken on as a software engineer, he received his appointment letter on March 27 and will join the social networking giant at its Menlo Park, California base in October.

The selection process started in October last year via email and was finalized after nine telephonic interviews.



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LONGER LEAVE FOR PREGNANT WOMEN ON THE CARDS

MATERNITY BENEFIT TO BE AMENDED

A government panel, headed by the women and child development (WCD) secretary, has recommended a review of

the Maternity Benefit Act, 1961, with a view to increase the number of days of leave that a woman worker can take. It

has also suggested giving the employee the choice of utilizing the period of paid absence as per her convenience.

However, the panel has not spelt out by how many days the maternity leave should be increased. “It would be the

government along with a stakeholder ministry, like the WCD, which will have to take a final call”, said a government

official.

Presently, central government employees are eligible for upto 180 days of maternity leave with full pay benefits. For

state government employees, the paid leave period varies from 120 to 135 days. In the private sector, the period is of a

maximum of 84 days.

The panel has also recommended an amendment to the Maternity Benefit Act to ensure that employers do not

terminate the service of a woman during the period of her pregnancy under any pretext to avoid providing maternity

benefits.



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UNIFORM, WASHING AND SPECIAL

ALLOWANCES NOT PART OF BASIC WAGES

TO ATTRACT EPF CONTRIBUTION

The appeal of the appellant, against the order dated 31.05.2010 of the EPF Authority passed under sections 7-A of the Act, is that the impugned order is illegal as the appellant is not liable to pay PF contributions on special allowances.

The Hon'ble Appellate Tribunal observed that Provident Fund Contributions are not necessarily be paid on the wages which are fixed under the Minimum Wages Act since the basic wages as defined under the EPF& MP Act and the wages as defined under the Minimum Wages Act are different. Hence, PF contribution liability is to be fixed on the actual wages paid to the workers as held in APFC, Gurgaon Vs M/s. G4S Security Services (I) Ltd. 2011 LLR 316 (P&H High Court). Special allowance paid by the management at its own will and pleasure and not under any contract of employment, settlement or award does not form part of basic wages as defined under Section 2(b) of the Act and as held in R. Ramanathan Chettair Jewellers Madurai Vs Regional Commissioner 1998(4) LLN 783. Hence, special allowances including washing and uniform allowances are excluded from the payment of PF contribution. Accordingly the impugned order is quashed. Appeal is allowed.

INDIAN FIRMS TO RAMP UP HIRING THIS YEAR

In a survey, conducted by staffing consultancy firm Mercer, Indian companies are going to increase hiring this year and employees can look forward to an average pay hike of 12 per cent.

According to Mercer's All Industries Total Remuneration Survey, 84 per cent of Indian companies are currently looking to push up recruitment while only 16 per cent are contemplating to maintain the same level of headcount.

“Maximum hiring will be seen in insurance, chemical and manufacturing sectors with 100 per cent respondents from respective industries forecasting a headcount addition in the next 12 months”, the report said. This will be followed by the hi-tech industry with 86 per cent respondents showing positive hiring intentions. More than 75 per cent respondents from retail, manufacturing and banking and finance industries suggested an increase in headcount.

Among the industries surveyed, the automobile sector expects highest salary increments at 14.3 per cent this year followed by pharmaceutical and medical equipment at 12.8 per cent, chemical at 12.2 per cent, consumer at 12 per cent, IT and telecom at 12 per cent, ITeS at 11.3 per cent.

INCREMENT FORECAST SURVEY

The highest increments — at 14.3 per cent — are expected in the automobile sector, the survey revealed. It expects an average 12 per cent salary hike across industries, the same as last year’s.

Increments in the pharmaceutical and medical equipment sectors are projected at 12.8 per cent; chemicals at 12.2 per cent, consumer durables at 12 per cent, IT and telecom at 12 per cent and ITeS at 11.3 per cent.

Employees in the insurance sector, however, may get a relatively lower salary increase, at 11 per cent.

BANGALORE HIRES MAXIMUM NRI EXCESS

In the January-March 2012 quarter, NRI professionals w ee

29% of the total number of lateral hires (people with more

than three years of experience) in Bangalore. In Delhi/NCR,

this was 27%, in Mumbai 26%, in Hyderabad 18% and in

Chennai and Kolkata 16% each, says a study by

MyHiringClub, a global recruitment tendering platform.



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STRINGENT CHILD LABOUR LAWS COMING

More stringent penalties on employers hiring children below 14 years

are in the offing. The Government is planning to bring in amendments

to Child Labour (Prohibition and Regulation) Act, 1986 to enforce this.

According to a National Sample Survey Organisation (NSSO) report

in 2009-10, the number of working children in the age group of 5-14

years has dipped to 19.84 lakh from 1.26 crore in 2001.

To facilitate eradication of child labour, the Ministry of Labour and

Employment has put into action the National Child Labour Project

(NCLP) Scheme in 266 districts, under which the Government fully

funds special schools and rehabilitation centers aimed at victims of

child labour, a Labour Ministry release said.

GOVT. PLANS TO RAISE

RETIREMENT AGE FOR SICK PSUS’

EMPLOYEES

The Department of Public Sector

Enterprises (DPE) said it is formulating a

policy to raise retirement age to 60 years for

employees of sick units whose revival

packages have been approved by the

government.

The Board for Reconstruction of Public

Sector Enterprises (BRPSE) had

recommended to the department for

increasing the retirement age of employees

of loss-making Central Public Sector

Enterprises (CPSEs).

“….DPE is formulating a policy for

enhancement of superannuation age from

58 years to 60 years for employees of sick

CPSEs whose revival packages have been

approved by the government”, Heavy

Industries and Public Enterprises Minister

Praful Patel said in a written reply to the Lok

Sabha.



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ON ON ON ON ESICESICESICESIC

Question: What is E.S.I Scheme?

Answer: In addition to necessities of food, clothing, housing etc., man needs security in times of physical and

economic distress consequent upon sickness, disablement etc. The Employees' State Insurance Scheme is an

integrated measure of Social Insurance embodied in the Employees' State Insurance Act and is designed to

accomplish the task of protecting 'employees' as defined in the Employees' State Insurance Act against the

hazards of sickness, maternity, disablement and death due to employment injury and to provide medical care to

insured persons and their families. The Scheme covers employees of non-seasonal power-using factories

employing 10 or more persons. There is, however, a built-in provision for its extension to other establishments

or classes of establishments, industrial, commercial, agricultural or otherwise. The Scheme has been

progressively extended to cover employees in non-power using factories employing 20 or more persons and to

commercial establishment.

Question: How does the Employees' State Insurance Scheme assist you?

Answer: The dependence of an individual on cash income is a characteristic feature of modern economy. An

interruption of money income even for a small period is, therefore, a hardship; a prolonged loss of income is

indeed a catastrophe. By coming forward to provide health protection and income maintenance in a series of oft-

experienced contingencies like sickness, maternity, disablement and death due to employment injury, the

Employees' State Insurance Scheme tends to ameliorate your economic anxiety and to be a friend in need and

distress.

Question: Why is it called a Health Insurance Scheme?

Answer: The Employees' State Insurance Scheme performs a dual role; by providing assistance in kind (medical care) it tries to restore your health and working capacity and by assistance in cash (cash benefit) it tries to sustain you when your income is interrupted. With a better and facile health protection, greater vitality, and

assurance of income-maintenance in times of need, it makes you every inch a better, a healthier, secure worker and therefore, a happier man. The assistance comes to you not as an act of benevolence but in virtue of an acquired right. Question: Who administers the Employees' State Insurance Scheme? Answer: The Employees' State Insurance Scheme is administered by a corporate body called the Employees'

State Insurance Corporation (ESIC), which has members representing Employees, Employers, the Central

Government, State Governments, Medical Profession and the Parliament. The Director General is the Chief

Executive Officer of the Corporation and is also an ex-officio member of the Corporation. The other bodies at the

national level are the Standing Committee (a representative body of the Corporation) and the Medical Benefit

Council, a specialized body which advises the Corporation on administration of Medical Benefit. At the Regional

and Local levels, the Regional Boards and Local Committees have been constituted. There is, thus, an

association of interests and interest groups at all levels. ESIC is the trustee of the interests of the insured



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persons. It discharges its obligations and duties through a net-work of Regional Offices and Branch Offices,

Hospitals and Dispensaries spread over the entire country.

Question: Where do Employees' State Insurance Funds come from?

Answer: The Employees' State Insurance Funds are primarily built out of employer’s contribution and

employees contribution payable monthly as a fixed percentage of wages.

Question: How are the employees registered under the Scheme?

Answer: Simultaneously with his/her entry into employment in a covered factory or establishment, an employee

is required to fill in a Declaration Form. The employee is then allotted a Registration Number, which

distinguishes and identifies the person for the purposes of the Scheme. A person is registered once and once

only upon his entry in insurable employment.

Question: What is an Identity Card?

Answer: Simultaneously with his/her entry into employment in a covered factory or establishment, an employee

is required to fill in a Declaration Form. The employee is then allotted a Registration Number, which

distinguishes and identifies the person for the purposes of the Scheme. A person is registered once and once

only upon his entry in insurable employment.

Question: What are the rates of contribution?

Answer: Contributions payable in respect of an employee comprise of employer's contribution and employee's

contribution prescribed in Schedule I of the Act. An employee covered under the scheme has to contribute

1.75% of the wages whereas; an employer contributes 4.75% of the wages payable to an employee. The total

contribution in respect of an employee thus works out to 6.50% of the wages payable.

Question: How are the Contributions collected?

Answer: The Contribution is deposited by the Employer in cash or by cheque at the designated branches of

some nationalized banks. The responsibility for payment of all contributions is that of the employer with a right

to deduct the Employees' share of contributions from employees' wages relating to the period in respect of

which the Contribution is payable.

Question: What are 'Contribution Periods' and 'Benefit Periods?

Answer: Workers, covered under the ESI Act, are required to pay contribution towards' the scheme on a

monthly basis. A contribution period means a six-month time span from 1st April to 30th September and 1st

October to 31st March. Thus, in a financial year there are two contribution periods of six months duration.

Cash benefits under the scheme are generally linked with contributions paid. The benefit period starts three

months after the closure of a contribution period. The two types of periods are iIIucidated below:-

Contribution Period Benefit period

1st April to 30th September Corresponding



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1st October to 31st March 1st January to 30th June of the following year

1st October to 31st March 18th July to 31st December

Question: What does 'Sickness Benefit' mean?

Answer: Sickness signifies a state of health necessitating medical treatment and attendance and abstention

from work on medical grounds. Financial support extended-by the Corporation is such a contingency is called

Sickness Benefit.

Question: What is the duration of Sickness Benefit?

Answer: Sickness benefit is payable' for a maximum period of 91 days in any two consecutive benefit periods.

Benefit is not paid for an initial waiting period of 2 days unless the insured person is certified sick within 15days

of the last spell in which Sickness Benefit was paid.

Question: What is 'Disablement'?

Answer: Disablement is a condition resulting from employment Injury which may be:-

(a) Temporary i.e. rendering an insured person incapable of work temporarily and necessitating medical

treatment; (b) Permanent partial i.e. reducing the earning capacity of the insured person generally for every employment; (c) permanent total Le. totally depriving the insured person of the power to do all work.

Question: What are the contributory conditions?

Answer: Except in case of disability from administration of drugs/ injections, the insured person should have

been in continuous employment for a period of 2 years and should have contributed for at least 156 days in 4

preceding contribution periods.

For more FAQs, please write an email to [email protected] or [email protected]



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DELHI REVISED MINIMUM WAGES W.E.F. 01-04-2012



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Minimum Wages in Himachal Pradesh for Shops and Establishments have been revised w.e.f. 1stApril 2012

LABOUR & EMPLOYMENT DEPARTMENT NOTIFICATION

Shimla-2, the 19th May, 2012

No. Shram (A)1-2/2009(M.W.).—Whereas the Governor, Himachal Pradesh is of the opinion that the

minimum rates of wages in the Scheduled employment of “Shops and Commercial

Establishments” may be revised in respect of un-skilled and other categories of workers with effect from

01.04.2012.

Now, therefore, in exercise of the powers vested in her under clause(b) of sub-section (1) of Section 5 of the Act

ibid, the Governor of Himachal Pradesh is pleased to publish the proposal for revision of the minimum wages

from 01.04.2012 as under:-

Category of employees Where no benefit is provided

Where food tea & combined accommodation provided

Un skilled Helper / Shop Assistant / Pelledar / Chowkidar / Peon/ Sweeper / Masalchi / Gateman / Waterman / Cleaner /Packer/Mazdoor/Lander/Unlander/Messenger/ Clock Room Attendant/ Porter/ Bhishit/ eldar/Fireman/ Pandi/ Posterman / any other worker doing un skilled job.

Daily-Rs.130/-

Monthly-Rs. 3900/-

Rs.110.49/- Rs. 3315/-

Semi-Skilled Head porter, Pantry man / Coffee-Tea maker / Chapatiman/ Assistant Baker/Gate Keeper (Cinema)/Asst. Lineman/Assistant Operator/ Binder Assistant/ Bill Collector/ Convesser /Monthly/ Cook/Assistant Halwai/BookWBinder/Sticher/Rulling-cutting/ Auctioners/Mali/ Sewerman/ Hotel Guide/ AssistantMistry/ Assistant Fitter/ Assistant Turner/AssistantWelder/ Assistant Electrician / Assistant Salesman / Assistant Barbar / Dhobi, Pressman/Boilerman/Film Rewinder/Water, Bearer), Assistant Radio Machanic/Painter/WhiteWasher/Pakora and Chanama- ker/Clerk (Non-matric), Assistant Store Keeper / Distributor and Assistant Machine man. Enquiry Attendent / Telephone Attendant, ITI Certificate Holder.

Daily-141.91 Monthly-4257.003

121.70 3651.00

Skilled: Blacksmith/Tinsmith/Watchmaker/Radio Mechanic/Carpenter/ Plumber/Driver/Assistant Tailor / Cutter (Tailoring) / General P.M. mechanic/Halwai/Cook/Confectioner/Baker/ Steward/ Butler/ Fitter/Draughtsman/Telephone Operator/ / Compounder/ Gold- smith. / Shoe Maker / Shawl-Carpet Weaving / Compositor / Cinema Operator/Salesmen/Drycleaner/Dyer/Barber /Regular- machine man / machinist / Welder / Moulder / Cashier / Clerk/ (Matric) Munim /receptionist/Waiter / Bearer/) / Storekeeper/ headwaiter/Head

Daily-163.79 Monthly- 4914.00 P.M.

144.07 4322.00



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Bearer (Western Style Hotels) / Lineman. ITI certificate holder who are working in the same trade. And such other employees not shown in the list but doing work of skilled nature as Mentioned on next page. Highly Skilled: Store Keeper/ Clerks (Graduates) Accountant/Head Cashier/ Head Cook/Head Butler/Head Baker/Head Confectioner/Head Store Keeper/ Clerks (Graduates) Accountant/Head Cashier/ Head Cook/Head Butler/Head Baker/Head Confectioner/Head mechanic/ Electrician / Foremen / Supervisor. / Tailor / Cutter (Tailoring).

Daily 173.70

Monthly 5211.00

154.80

4644.00

NOTE 1. There will be no distinction between the minimum wages of male or female and adult or non-adult for the

same and similar nature of work.

2. Wages of Apprentices are to be regulated under the Apprenticeship Act, 1961(No. 52 of 1961).

3. Where any class of work is performed on piece work basis, the time rate prescribed for the particular

category shall be guaranteed for that category.

4. 25 % increase shall be applicable over and above the minimum of wages in Tribal Areas in Himachal

Pradesh.

The definition of unskilled/semiskilled/skilled/highly skilled will be as:- (i) Unskilled.—An unskilled employee is one who does operations that involve the performance of simple duties, which require the experience of little or no independent judgment or previous experience although familiarity with the occupational environment is necessary. His work may thus require in addition to physical exertion familiarity with variety of articles or goods.

(ii) Semi-skilled.—A semiskilled worker is one who does work generally of defined routine nature wherein the major requirement is not so much of the judgment, skill and but for proper discharge of duties assigned to him or relatively narrow job and where important decisions made by others. His work is thus limited to the performance of routine operations of limited scope. (iii) Skilled.—A skilled employee is one who is capable of working efficiently of exercising considerable independent judgment and of discharging his duties with responsibility. He must posses a thorough and comprehensive knowledge of the trade, craft or industry in which he is employed. (iv) Highly Skilled.—A highly skilled worker is one who is capable of working efficiently and supervises efficiently the work of skilled employees.



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Increase in LWF contribution in Haryana w.e.f. 1st April 2012

HARYANA GOVT. GAZ.(EXTRA). APR. 11.2012

(CHTR.22.1934 SAKA)

______________________________________________________________________________________

PART-1

HARYANA GOVERNMENT

LAW AND LEGISLATIVE DEPARTMENT

Notification

The 11th

April, 2012

No. Leg. 10/2012.- The following Act of the Legislature of the State of Haryana received the

assent of the Governor of Haryana on the 29th

March,2012, and is hereby published for general

information:-

HARYANA ACT NO.8 OF 2012

THE PUNJAB LABOUR WELFARE FUND (HARYANA AMENDMENT)

ACT, 2012

AN

ACT

Further to amend the Punjab Labour Welfare Fund Act, 1965, in its application to the State of Haryana.

Be it enacted by the Legislature of the State of Haryana in the Sixty-third year of the Republic of India as

follows:-

1. This Act may be called the Punjab Labour Welfare Fund (Haryana Amendment) Act, 2012.

2. In sub-section (1) of section 9A of the Punjab Labour Welfare Fund Act, 1965, for the words” five

rupees” and “ten rupees”, the words “ten rupees”, and “twenty rupees” shall respectively be

substituted.

MANJIT SINGH

Secretary to Government Haryana,

Law and Legislative Department.



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IMPORTANT GLANCE ON CASE LAWS

An engineering graduate, working as a Scientist, is not a ‘workman'.

Reference: - DELHI HIGH COURT Divyash Pandit Vs The Management of National Council for Cement and Building

Materials. 2012 LLR 463 - May 2012

______________________________________________________________________________________________

Imposition of damages by ESIC sans opportunity of hearing would be wrong. & Existence of mens rea is must for

levy of damages in deposit of ESI contributions.

Reference: - MADRAS HIGH COURT Employees’ State Insurance Corporation Vs M/s. Hafeez Motor Transport. 2012

LLR 471 - May 2012

_____________________________________________________________________________________________

Supporting reasons must be given for re-opening of determined provident fund money.

Reference: - MADHYA PRADESH HIGH COURT Choithram Hospital & Research Centre, Indore Vs Asstt. Provident Fund

Commissioner, Indore and Another. 2012 LLR 479 - May 2012

_____________________________________________________________________________________________

Reinstatement is appropriate for non compliance of section 25F of Industrial Disputes Act.

Reference: - PUNJAB & HARYANA HIGH COURT Rajbir Kumar Vs Presiding Officer, Labour Court, Ambala and Another.

2012 LLR 491 - May 2012

_____________________________________________________________________________________________

Denial by Tribunal to summon the employer for proving 240 working days is not legal.

Reference: - PUNJAB & HARYANA HIGH COURT Nawal Singh Vs Presiding Officer, Industrial-cum-Labour Court,

Panipat and Another. 2012 LLR 498 - May 2012

____________________________________________________________________________________________

A doctor, employed in a charitable eye hospital, is not a ‘workman'.

Reference: - DELHI HIGH COURT Management of Multan Sewa Samiti Charitable Eye Hospital Vs P.O., Labour Court-II

& Ors. 2012 LLR 523 - May 2012



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STATUTORY COMPLIANCE JUNE 2012

√ Pay PF on or before 15.06.2012

√ Pay ESIC on or before 21.06.2012

√ Pay Professional Tax on or before 30.06.2012

√ Submit Form No.5 & 10 under PF Act on or before 15.06.2012

√ Submit Form No.12A under PF Act on or before 25.06.2012

* [Employers employing International Labour to submit the information to the EPFO]

Disclaimer: Although every possible care and caution has been taken to avoid any mistakes or omissions while mailing the news

letter containing Judgments, Head-notes, and Articles, forms & precedents, our clients should verify the correctness of the

same. Neither the NATIONAL ACADEMY OF INDIAN PAYROLL (NAIP) or its any executives be held responsible or liable in

any manner for any loss or damage caused to clients or any other persons concerned in any way due to mistake, omissions

which may have inadvertently crept in despite & caution.

Documents

Inside this issue - naip.in filePF Commissioner to impose damages not exceeding the arrears within ceiling. The relevant Regulations 32-A and 32-B are neither inflexible nor fetter