Sabbatical Leave comes under Continuous Service for Gratuity
Query :- The question whether the sabbatical period during which an employee was on leave would be considered as a part of continuous/uninterrupted service for the purpose of payment of gratuity or whether such period will be excluded for the purpose of payment of gratuity and would therefore be considered as a break in service.
Answer
For answering to this query we must first take below exhibit legislative provision & supporting
‘Continuous service’ under Section 2-A(1) of the Payment of Gratuity, 1972 express that “an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing order, rules or regulations governing the employees of the establishment), lay off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act.”
Refer
The Hon’ble Supreme Court of India in the case Jeewanlal (1929) Ltd. and Ors. Vs. Appellate Authority under the Payment of Gratuity Act and Ors. AIR1984SC1842
The Hon’ble Madras High Court in the case of H. Ramappa S/o Hanumanthappa and Ors. vs. The General Manager, Sri Yellamma Cotton Woolen and Silk Mills and Ors. 2008(117)FLR863
It is lucid that in this event the employee was absent from the duty due to Sabbatical Leave & it was permitted by the Employer. The said employee shall be entitled to the benefit of gratuity unless the Employer has passed an order treating such absence without leave as a break in service in accordance with the Standing Orders of Employment applicable to the employee.
M.C. Mehta And Anr vs Union Of India & Ors on 20 December, 1986
Oleum Gas Leakage Case
The Constitution of India 1950
Articles 12 & 21 - Private corporation - Engaged in industry vital to public interest with potential to affect life and health of people--Whether 'other authority'--Extent of availability of Article 21.
Article 32 - Jurisdiction and Power of Court--Not only injunctive in ambit--Remedial in scope and provides relief for infringement of fundamental right--Power to award com- pensation. Public Interest Litigation--Maintainability of--Whether letters addressed even to an individual judge entertainable--Whether preferred form of address applicable--Whether letters to be supported by affidavits--Hyper-technical approach to be avoided by the Court--Court must look at the substance and not the form--Court's power to collect relevant material and to appoint commissions. Law of Torts--Liability of an enterprise engaged in a hazardous and inherently dangerous industry for occurrence of accident--Strict and absolute--Quantum of compensation payable for harm caused--Determination of--Rule laid in Rylands v. Fletcher--Whether applicable in India.
Jurisprudence Law should keep pace with changing socioeconomic norms. Where a law of the past does not fit in to the present context, Court should evolve new law.
Interpretation of Constitution - Creative and innovative interpretation in consonance with human rights jurisprudence emphasised. Interpretation of statutes - Foreign case law & Supreme Court of India not bound to follow.
HEADNOTE:
The petitioners, in this writ petition under Art. 32, sought a direction for closure of the various units of Shriram Foods & Fertilizers 820 Industries on the ground that they were hazardous to the community. During the pendency of the petition, there was escape of oleum gas from one of the units of Shriram. The Delhi Legal Aid and Advice Board and the Delhi Bar Associa- tion filed applications for award of compensation to the persons who had suffered harm on account of escape of oleum gas. A Bench of three Hon'ble Judges while permitting Shriram to restart its power plant as also other plants subject to certain conditions, referred the applications for compensa- tion to a larger Bench of five Judges because issues of great constitutional importance were involved, namely,
(1) What is the scope and ambit of the jurisdiction of the Supreme Court under Art. 32 since the applications for compensation are sought to be maintained under that Article;
(2) Whether Art. 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people; and
(3) What is the measure of liabil- ity of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands v. Fletcher, (1866 Law Report 1 Excheq- uer 265) apply or is there any other principle on which the liability can be determined. Disposing of the applications, HELD:
1. The question whether a private corporation like Shriram would fall within the scope and ambit of Art. 12 so as to be amenable to the discipline of Art. 21 is left for proper and detailed consideration at a later stage if it becomes necessary to do so. [844F-G] Rajasthan Electricity Board v. Mohan Lal, [1967] 3 SCR 377; Sukhdev v. Bhagwat Ram, [1975] 1 SCC 421; Ramanna Shetty v. International Airport Authority, [1979] 3 SCR 1014;
Ajay Hasia v. Khalid Mujib, [1981] 2 SCR 79; \
Som Prakash v. Union of India, [1981] 1 S.C.C. 449;
Appendix I to Industrial Policy Resolution, 1948;
Industries (Develop- ment and Regulation) Act, 1951;
Delhi Municipal Act, 1957
Water (Prevention and Control of Pollution) Act, 1974;
Air (Prevention and Control of Pollution) Act, 1981;
Eurasian Equipment and Chemicals Ltd. v. State of West Bengal, [1975] 2 SCR 674;
Rasbehari Panda v. St.ate, [1969] 3 SCR 374;
Kas- turi Lal Reddy v. State of Jammu & Kashmir, [1980] 3 SCR 1338, referred to. 821
2. The Delhi Legal Aid and Advice Board is directed to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the appropriate Court for claiming compensation and the Delhi Administration is directed to provide necessary funds to the Board for the purpose. [844G-H; 845A]
3.(i) Where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a Court of law for justice, it would be open to any public-spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing regular writ petition under Art. 226 in the High Court and under Art. 32 in this Court, but also by addressing a letter to the Court. [828B-C; E-F]
3.(ii) Even if a letter is addressed to an individual Judge of the Court, it should be entertained, provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class or deprived or disadvantaged persons. [829B-C]
3.(iii) Letters addressed to individual Justices of this Court should not be rejected merely because they fail to conform to the preferred form of address nor should the Court adopt a rigid stance that no letters will be enter- tained unless they are supported by an affidavit. If the Court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary jurisdiction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the Court and even the social action groups will find it difficult to approach the Court.
[828H; 829B] Bandhua Mukti Morcha v. Union of India & Ors., [1984] 2 SCR 67;
S.P. Gupta v. Union of India, [1981] (Suppl) SCC 87 and
Union for Democratic Rights & Ors. v. Union of India, [1983] 1 SCR 456, relied upon.
4.(i) Article 32 does not merely confer power on this Court to issue direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all inci- dental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitu- tional obligation that this Court 822 has, in the past, innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disad- vantaged who are denied their basic human rights and to whom freedom and liberty have no meaning. [827F-828A]
4.(ii) The power of the Court is not only injunctive in ambit, that is, preventing the infringement of fundamental right but it is also remedial in scope and provides relief against a breach of the fundamental right already committed. [830A-B]
4(iii) The power of the Court to grant such remedial relief may include the power to award compensation in appro- priate cases. The infringement of the fundamental right must be gross and patent, that is incontrovertible and exfacie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons or it should appear unjust or unduly harsh or op- pressing on account of their poverty or disability or so- cially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the Civil Courts. [830D; E-F]
4. (iv) Ordinarily a petition under Art. 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of Civil Court. It is only in exceptional cases that compensation may be awarded in a petition under Art. 32. [830F-G]
4.(v) The applications for compensation in the instant writ petition are for enforcement of the fundamental right to life enshrined in Art. 21 of the Constitution and while dealing with such applications the Court cannot adopt a hyper-technical approach which would defeat the ends of justice. The Court must look at the substance and not the form. Therefore, the instant applications for compensation are maintainable under Art. 32.
[827A-B] Bandhua Mukti Morcha v. Union of India & Ors., [1984] 2 SCR 67;
S.P. Gupta v. Union of India, [1981] (Suppl.) SCR 87;
Union for Democratic Rights & Ors. v. Union of India, [1983] 1 SCR 456 and
Rudul Shah v. State of Bihar, AIR 1983 SC 1086, relied upon.
5. The rule in Rylands v. Fletcher (supra) laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does 823 damage to another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory author- ity. This rule evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. In a modern industrial society with highly de- veloped scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry on as part of developmental programme, the Court need not feel inhibited by this rule merely because the new law does not recognise the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activi- ty. [842D-G] Halsburry Laws of England, Vol. 45 Para 1305, relied upon.
6. (i) Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. The Court cannot allow judicial thinking to be constricted by reference to the law as it prevails in England or in any other foreign country. Although this Court should be prepared to receive light from whatever source it comes, but it has to build up its own jurisprudence, evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly indus- trialised economy. If it is found that it is necessary to construct a new principle of law to deal with -an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concommitant to an industrial economy the Court should not hesitate to evolve such principles of liability merely because it has not been so done in England. [843A-E]
(ii) This Court has throughout the last few years expanded the horizon of Art. 12 primarily to inject respect for human-rights and social conscience in corporate struc- ture. The purpose of expansion has not been to destroy the raison d'etre of creating corporations but to advance the human rights jurisprudence. The apprehension that including within the ambit of Art. 12 and thus subjecting to the discipline of Art. 21 those private corporations whose activities have the potential of affecting the life and health of the people, would deal a death blow to 824 the policy of encouraging and permitting private enterpre- neurial activity is not well founded. It is through creative interpretation and bold innovation that the human-rights jurisprudence has been developed in India to a remarkable extent and this forward march of the humanrights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists. [841C-E]
7.(i) An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an abso- lute non-delegable duty to the community to ensure that if any harm results to anyone, the enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harm irrespective of the fact that the enterprise had taken all reasonable care and that the harm occurred without any negligence on its part. [843E-G]
7.(ii) If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. [844A-B]
7.(iii) The measure of compensation in such kind of cases must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deter- rent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in carrying on of the hazardous or inherently dangerous activity by the enterprise. [844E-F]
8. The historical context in which the American doctrine of State action evolved in the united States is irrelevant for the purpose of Indian Courts, especially in view of Art. 15(2) of the Indian Constitution. But, it is the principle behind the doctrine of State aid, control and regulation so impregnating a private activity as to give it the colour of State action which can be applied to the limited extent to which it can be Indianised and harmoniously blended with Indian constitutional 825 jurisprudence. Indian Courts are not bound by the American exposition of constitutional law. The provisions of American Constitution cannot always be applied to Indian conditions or to the provisions of Indian Constitution and whilst some of the principles adumberated by the American decisions may provide a useful guide, close adherence to those principles while applying them to the provisions of the Indian Consti- tution is not to be favoured, because the social conditions in India are different. [840D-H] Ramanna Shetty v. International Airport Authority,
[1979] 3 SCR 1014; Jackson v. Metropolitan Edison Co., 42 L.ed. (2d) 477;
Air India v. Nargesh Mirza, [1982] 1 SCR 438 and
General Electric Co. Maratha v. Gilbert, 50 L.ed (2d) 343, relied upon.
KERALA- INCREASE IN WELFARE FUND CONTRIBUTION W.E.F 1ST SEPTEMBER 2022
As per the notification the Kerala Shops and Commercial Establishment Workers Welfare Fund contribution has been increased from Rs.20/- to Rs.50/- per month.
The notification will be in force from 1st september 2022 onwards of which the contribution is payable on or before 5th October 2022.
NEW WWF CONTRIBUTION
Employer Contribution- Rs.50/- per employee per month.
Employee contribution- Rs.50/- per month.
There is also a proposal for an increase in the welfare fund contribution of the IT and ITES sector from Rs.20/- to 100/- per month which is expected to be notified at any time.
Request you to kindly ensure the statutory contribution accordingly.
Due Date Extended to 31 July 2022 for Maharashtra Labour Welfare Fund
This is to inform you that Maharashtra Labour Welfare Board gives relaxation to all establishments for convenience of online Maharashtra Labour Welfare Fund Contribution payment for the period ending June 2022.
Acceptance of online online Maharashtra Labour Welfare Fund Contribution payment for the period ending June 2022. last date has been extended till 31 July 2022.
The Maternity Benefits Act has form to regulate the employment of women in certain establishment for certain period before and after child-birth and to provide for maternity benefit and certain other benefits.
There are many question which is been asked with me time to time by my various client(s) & I strongly feel that I must share this with all, so that we all can be better complied & take proper legitimate care of working women in regards to her maternity benefit.
In this page shall keep posting continuously about all the queries which keeps on coming to me via various source to response. You are also requested to please drop your queries in the comment section so that I can response to the same. Shall try to keep this updated on real time basis as & when I face or receive any question(s) in regards to Maternity Benefits Act.
Question 1 - A woman worker, went on Maternity Leave from 1st Feb’22 to 31st July’22, but she is interested to join back on the regular duty from 27th
June’22. Would request you to please let us know if we can consider it or not.
Answer:- Without prejudice, no pregnant woman shall be required to do work during the period of ‘one month immediately preceding’ the date of her expected delivery for any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.
Refer :- Section 4(3) & (4)(a) of the Maternity Benefits Act, 1961
“…4. Employment of, or work by, women prohibited during certain period. --
(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.
(4) The period referred to in sub-section (3) shall be –
(a) at the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;
(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6. …”
Question 2 - Please let us know when the maternity gets applicable to a female associate after date of joining.
Answer :- The Act become applicable on
very same day from the date of a female worker joins to our organization.
But the woman shall be entitled to maternity benefit payment once she has
actually worked for a period of not less than eighty days in the twelve months
immediately preceding the date of her expected delivery.
Explanation of Response:- For the purpose of
calculating the days on which a woman has actually worked in the establishment,
the days for which she has been laid off or was on holidays declared under any
law for the time being in force to be holidays with wages during the period of
twelve months immediately preceding the date of her expected delivery shall be
taken into account.
Refer
U/s 5(2) of Maternity benefit Act 1961
The verdict pronounced by the hon’ble
Supreme Court of India in the case of the Municipal Corporation of Delhi vs.
Female Workers (Muster Roll) and Ors. (08.03.2000 - SC)
Provident Fund contribution for International Employee in India
If India is not having an SSA with a foreign country then the expect employee cannot submitted the Detachment Certificate issued by the Social Security Office of his/her country of origin, thus said expect is not exempted from making contributions towards the PF in India.
The international workers (except excluded employees) are mandatory to contribute 12 percent of their salaries (not subject to any cap) to the Indian Provident Fund scheme. The exemption from making contributions for employees earning salary in excess of Rs.1500.00/- per month does not apply to international workers.
Fundamental points
The PF regulations will be relevant to total salary irrespective of
whether the salary is remunerated in India or outside India, split
payroll, or multiple country sources
Every eligible international worker has to be registered from the
first date of his employment in India. For existing international workers,
the accountability started from November 1, 2008.
Please find the Countries having
Social Security Agreement with India exhibit below:-
Countries
having Social Security Agreement with India
Austria
Czech
Hungary
Norway
Australia
Denmark
Japan
Portugal
Brazil
Finland
Korea
Quebec
Belgium
France
Luxembourg
Sweden
Canada
Germany
Netherlands
Switzerland
Only ‘Detached Worker’ form a foreign national, contributing to the Social Security Program of the foreign country as per the Social Security Agreement signed between that country and India and exempt from making any contribution towards the Provident Fund in India for the period and terms as set out for the purpose of compliance in Host Country (EPFO-India).
In case
of any further elucidation required, please write back to us in the comment section, shall be please
to help you out.
BAKERY. BREWERIES & OIS-:-,_LERY, BLACK SMITH. BISCUIT-MANUFACTURING, FILM (PRODUCTION. DISTRIBUTION & EXHIBITION) INDUSTRY,-CARPENTRY & MASONRY. CANTEEN & CLUBS. CO-OPERATIVE CONSUMERS-SOCIETIES, CLEANERS, COACHING ACADEt, IICS INCLUDING NURSING AND-ENGLISH MEDIUM SCHOOLS AND TECHNICAL INSTITUTES. EARTH CUTrtNG,-EARTH REMOVING. EARTH FILLING AND EARTH LEVELLING OPERATION, FRUIT-PRESERVATION, GOLD SMITH, HAIR CUTTING SALOON, GRASS CUTTING & WOOD-CUTTING. L.P. GAS DISTRIBUTION, OIL & GAS DRILLING WORKERS, PREIyIISES-WHEREIN COWS AND BUFFALOES OR BOTH ARE KEPT FOR MILKING. FOODING &-PROCESSES, PRINTING AND DYING CLOTHES, PATHOLOGICAL, Shops and Commercial establishment, Construction Maintenance of Roads, Paultry & Diary Farm-
How ESIC credit amount of Reimbursement of Medical Claim Bill
Regulation-96 A reads as follows:- Claims for reimbursement of expenses incurred in respect of medical treatment of IP and his family may be accepted in circumstances and subject to such conditions as the Corporation may by general or special order specify.
The following conditions have been laid down under this Regulation :-
Full authority is vested with the State Government concerned to reimburse expenditure in respect of medical treatment of IP and his family.
It may be left to the discretion of the State Government to decide the Authority within their machinery who will approve the expenditure in question; and
Time limit for submission of the claims for reimbursement is one yearThe State Government has to keep in view the following points while considering the cases of reimbursement of expenditure on Medical Care:
Whether such facilities for which reimbursement is recommended are not available with the State.
Whether the hospital where the IP was sent or proposed to be sent was/is the nearest hospital having required facilities/services.A List of Types of cases for which reimbursement is permitted is given below:-
Reimbursement is permissible in case of failure of the mobile dispensary van due to technical defects or otherwise to adhere to its schedule timings or where IP attached to such a dispensary sustained serious injuries or suffered from serious illness during off hours of the dispensary.
IPs and their family members had to resort to private treatment during the off hours of ESI dispensary/Emergency Centre due to unavoidable circumstances.
Medicines prescribed by IMO/Specialist were out of stock in the ESI Dispensary/Approved Chemist thereby compelling the IPs to make purchases from the market.
Medicines prescribed by Specialist and not provided by the IMO/IMP and where specialist considered such special Medicines absolutely necessary for the treatment of the beneficiaries as no substitute medicine was considered equally efficacious whether as an out patient or in patient.
Special appliances prescribed by Specialist such as Spinal supports, Cervical Collars, Walking Callipers, and Crutches, etc. if considered necessary as part of the treatment.
Where an IMO/IMP failed to make domiciliary visit requested by an IP thereby compelling the IP to make private arrangement for treatment. Under the panel system such cost is recoverable from the IMP if recommended after investigation by the Medical Service Committee.
Serious cases of accident or illness admitted directly into recognised hospitals where owing to the clinical condition of the patient, being unconscious or otherwise, it was not possible to reveal his identity as an ESI patient and the hospital authorities recovered hospital expenses directly from the patient or the employer.
Serious cases of accident/illness where a beneficiaries was admitted directly at a private hospital or in a non-recognised hospital where admission in a hospital recognised under the scheme would have seriously jeopardised his health like sudden heart attacks, fracture of the spine, cerebral haemorrhage, etc.
Expenditure incurred on investigation for blood transfusion.
Mental cases that may have incurred expenditure either as an out patient on specialised Therapy such as ECT etc.
Serious cases of accident and illness admitted to recognised hospitals where all the reserved ESI beds were occupied.
ESIC to Proof the Coverage of Establishment under ESI Act
Case Name - 2021 LLR 1160
MADRAS HIGH COURT Hon'ble Mr. M. Govindaraj, J. C.M.A. No. 650 of 2016 and C.M.P. No. 5354 of 2016, Dt/– 3-6-2019
M/s. Kandagiri Spinning Mills Ltd.
vs.
The Regional Director, ESI Corporation
JUDGMENT
The above appeal is directed against the order passed by the E.S.I.O.P.No.5 of 2003, dated 26.7.2015 by the ESI Corporation.
The brief facts leading to filing of the present Civil Miscellaneous Appeal is as follows;
(i) The appellant is a spinning mill covered under the provisions of ESI Act and it is paying contribution for all the eligible employees promptly.
(ii) The petitioner received notice in form C-18 dated 8.7.2002 on adhoc basis, directing the petitioner to pay a contribution of Rs.8,84,407/- comprising of repairs to building, machinery generator, vehicle maintenance, loading and unloading charges, stipend paid to staff and apprentice and exgratia payment made to trainees for the period from 1995 to 1996.
(iii) In response to the show cause notice, the appellant by its letter dated 28.6.2003, submitted some split up figures along with the annexures to explain the same. They have also requested to adjust the dues from the excess amount remitted by them, and to drop the proceedings in respect of payment of stipend made to their apprentices/trainees.
(iv) On 29.5.2003, the respondent passed an order under section 45-A of the ESI Act. The said order did not disclose as to how the contribution was determined at Rs.8,84,407/- even though it is stated that the order was passed based on the records available before him. Since the order passed under section 45 A of the Act did not disclose any material to arrive the contribution at Rs.8,84,407/-, the appellant preferred a petition in ESIOP.No.5 of 2003 under Sections 75 and 76 of Employee State Insurance Act 1948 before the ESI Court.
(v) The appellant has examined 7 witnesses AW1 to AW7 and marked Exhibits A1 to A55. On the side of the respondent, RW1 to RW12 were examined as witnesses and Ex.R.1 to Ex.R.12 were marked.
(vi) The ESI Court, considering the evidence, held that the Mill should have bifurcated the expenses incurred in respect of repairs to building, machinery, generator, vehicle maintenance, stipend paid to staff and apprentice , exgratia and wages, but in the absence of any bifurcation of expenditure and wages, the above expenditures would fall under the ambit of 'wage' and it is liable to pay the contribution as http://www.judis.nic.in per the judgment reported in 2012 LLR 1024 (Goa Bottling Co.Pvt. Ltd., Vs. Dy. Regional Director, ESIC, Goa and others) and thereby dismissed the petition.
(vii) Aggrieved over the same, the appellant Management is before this Court.
According to the appellant, the certified standing order permits engagement of apprentices. The said apprentices will fall within the purview of ESI Act and no contribution need to be paid by the appellant.
3.1 Secondly, the expenses incurred towards machinery maintenance, buildings, construction, purchase of machineries cannot be treated as wages and no contribution need to be paid.
3.2 Thirdly the ESI Court failed to render a factual finding on the merits of the case, but confirmed the order passed under Section 45A of the ESI Act.
Insofar as the question of apprentice is concerned, Ex.P.1 dated 30.07.1983 is the standing orders of the appellant company. The employment standing orders empowers the company to engage the apprentices. Once the employment standing orders provide for engagement of the apprentices, they cannot be treated as workers/employees. Unless it is ascertained by the respondent that the workers are skilled and that the management is exploiting them in the guise of apprenticeship. Till it is proved, the contribution is exempted.
Infact, the witness RW1 who deposed on behalf of the respondent ESI Corporation would admit that the contribution is exempted in respect of apprentices. In his evidence, he has deposed that during the inspection of the appellant Mill, he heard from the Union Leaders that the management is engaging apprentices for 5, 6 years, but did not mention the name of the Union Leader not identified the apprentices through records and personal verification.
He would further depose that 40% of the employees were shown as trainees and apprentices, but he could not distinguish the duties and responsibilities between the regular workmen and the trainees or apprentices, the wages and stipend paid to them for want of bifurcation of expenditure by Management.
It is well settled the inspector shall discharge the initial onus to prove the persons employed in the factory are regular workers, their names and wages paid to them as well as the number of apprentices engaged and the stipend paid to them. There was a specific report stating that the apprentices were engaged beyond the permitted period and that they were paid their wages under the nomenclature of stipend in order to exempt them from the coverage of payment of contribution. A perusal of the documents marked as Ex.R.1 to Ex.R.12 would show only the correspondences and notices exchanged between the appellant and the respondent. There are no materials to show with respect to the engagement of apprentices and avoidance of contribution.
On the other hand, Ex.P.29 reads the terms and conditions of engaging apprentices and the stipend paid during the training period for them. The stipend varies from cadre to cadre on the basis of efficiency and experience in respect of various trades. The respondent corporation without producing relevant materials, has made a vague reply and let in unsubstantiated evidence in this regard.
The ESI Court relying on the judgment of the case reported in http://www.judis.nic.in 2011 LLR 604 (Sree Mangayarkarasi Mills (P) Ltd., Madurai District Vs. The Assistant Provident Fund Commissioner, Madurai and another) has held that it is improper to engage 300 apprentices and 300 regular workmen who were equal in number and non payment of contribution by the employer in respect of apprentices is incorrect. Further the payment of stipend varies from time to time and the quantum of stipend varies from person to person. The contention of the ESI corporation that the management is liable to pay contribution to the apprentices is held to be proper.
Since the Management had failed to produce relevant records before the ESI Authority, but produced the same before the ESI Court raises a reasonable doubt that they were fabricated. But, it is relevant to note that as discussed above, the appellant management has produced Ex.A.1 Employment standing Orders and Ex.A.29- book containing the terms and conditions of engagement of apprentices which cannot be fabricated as they are statutory requirements. Only because it is not produced before the ESI Authority, it cannot be construed what is produced before the ESI Court is a fabricated document. Perhaps, for want of legally trained brain, they could not act in strict adherence of the procedure as claimed by them.
When the very same management is assisted by a legally trained person like a lawyer, they could produce those documents before Court on his advice. Only because they were produced before the ESI Court, the presumption of the learned Judge that they were fabricated is not sustainable and erroneous. The evidence of respondent witness RW1 clearly shows that the Inspector has failed to record the names of the persons regularly employed and the names of the apprentices and the wages/stipend paid to them respectively. In such a situation, it should be construed that the initial onus on the shoulders of the respondent ESI Corporation was not discharged.
The evidence of RW1 is purely a hearsay without any specific details. During the cross examination, RW1 would state that he heard from the Labour Union Leader that the apprentices are engaged for 5, 6 years and that he was not aware of the name of the Union Leader. In the absence of materials with regard to the number of regular workmen, number of apprentices, name of the Union Leader, a vague statement made by the respondents witness cannot be relied on. Therefore, the finding of the ESI Court is absolutely without any valid http://www.judis.nic.in evidence and without appreciation of the evidence produced on the side of the appellant Management in proper perspective. Therefore, the finding in this regard is liable to be set aside.
Learned counsel for the appellant has relied on the judgment of this Court reported in 2015 LLR 1253 (Regional Provident Fund Commissioner, Employees Provident Fund Organisation, Madurai Vs. Employees' Provident Funds Appellate Tribunal, New Delhi and another), wherein, it is held as follows
'4. The learned counsel appearing for the petitioner contends that the numbers of apprentices were more than the regular employees and therefore the impugned order cannot be sustained. This contention cannot be accepted, because the mode of appointment of apprentices is different from the regular appointment and on the basis of documents placed on record by the department and the employer, the Appellate Authority has recorded a fining of fact that the workers said to be regular were only apprentices and not regular employees and thus not covered under the Employees Provident Fund Act. This Court in exercise of Writ jurisdiction does not sit in appeal to reappraise the evidence unless the findings are perverse or are not capable of being arrived at, merely because other view is also possible cannot be a ground to interfere. The only ground of challenge is that apprentices were more than regular employee which cannot be accepted, as a positive finding of http://www.judis.nic.in fact cannot be interfered with on presumption.
He has also relied on a judgment of the Andhrapradesh High court reported in 2005 (1) LLN 726 (AP) reported in Boc India, Ltd. (Formerly known as Indian Oxygen, Ltd) Vs. Assistant Regional Director, Employees' State Insurance Corporation and another), wherein, it is held as follows;
'12. In the present case, the respondents did not find any persons engaged in the activity of transport of cylinders within the premises of the factory. They only assumed that the activity of transport involves in persons entering the premises. In this regard, it needs to be borne in mind that the term “working on the premises of the establishment”, cannot take in its fold the situations of the casual or occasional presence of the persons in the factory. It is true that for the purpose of loading the cylinders and unloading the empty cylinders, the driver of the vehicle and the hamalies have to enter the premises.
So is the case with various persons who are required to unload the raw material, or even to transport the workers to the premises of the factory. If mere entry for such purposes alone is to be treated as the yardstick, every person who enters the factory for whatever purpose, deserves to be covered under the definition. It can never be said to be the purport of the expression. The words “ person who has undertaken execution on the premises of the factory” employed in the definition, indicate the presence of the persons for execution of the principal activity of the industrial establishment, and not a casual entry.” Therefore, in view of the above mentioned judgments, the finding of the trial court in this regard is erroneous and the same is liable to be set aside.
15. Secondly, the expenses incurred towards machinery maintenance and payment towards building construction and payment towards purchase of machineries and spare parts is concerned, the appellant has filed exhibits P.1 to P.44 and P.52 in respect of loading and unloading, freight charges and weighment charges.
16. A perusal of these documents clearly show that the payment for cotton loading and unloading through voucher numbers of specific dates and the amount paid towards the same. There are specific documents bifurcating the loading and unloading charges, freight charges and weighment charges. It cannot be held that the claim of contribution on the total amount is sustainable. The finding of the ESI Court that the bifurcation is not given to distinguish it from wages is factually illegal on the face of the records.
17. Likewise, the documents marked vide Ex.P.45 to 55 would clearly show the details about the expenses and wages incurred in respect of building repair, purchase of spare parts and machinery repairs, purchase of materials and repair of vehicles. Therefore the finding of the ESI that there is no bifurcation of the labour charges and expenditure is also erroneous.
18. In the judgment of this Court reported in Manu/TN/1930/2003 in the case of Regional Director, Employees' State Insurance Corporation Vs. Sundaram Clayton Ltd and others) , it is held as follows;
In Exhibit A3, marked in ESIOP.No.77 of 1987, the total value of the work is shown in which 10.21 per cent is shown towards labour charges and in the same petition under Exhibit A4, the total value of the work is shown in which 11.17 per cent is shown towards labour charges, but no evidentiary value can be attached to the same, in that they have been prepared by P.W.2, the Civil Engineer of the respondent-company. The fact remains that break up figures had not been furnished and shown in the account book of the respondent-company in respect of labour charges and the cost of construction of the buildings of the respondent-company for the relevant period. In such case, the claim of the Employees' State Insurance Corporation that such labour charges should constitute 25 percent in the total cost of construction is well founded. Therefore, the order of the Employees' Insurance Court that such labour charges would constitute only 17 per cent is not proper. In that view, the respondent-company is to make contribution at 25 per cent which is not unreasonable.
In the result, the common order of the Employees' Insurance Court is set aside only with respect to the labour charges fixed at 17 per cent and consequently these appeals are allowed to that extent and the respondent-company is liable to make contribution at 25 per cent in respect of labour charges of the total cost of the buildings of the respondent- company for the relevant period and in other respect the order of the Tribunal is confirmed. No costs.'
This Court, in its judgment dated 6.7.2007 in CMA.No.842 of 2000, has held as follows;' “ In view of the said submissions and having regard to the ESI code number furnished in respect of the security staff in the affidavit filed in support of the stay petition, I am of the view that the said claim can be verified by the ESI Corporation by giving sufficient opportunity and the ESI Court can pass fresh order.
7. In the result, the order in ESIOP.No.34 of 1991 dated 11.4.1997 is set aside only with regard to the direction to pay contribution towards security charges and the matter is remitted to the eSI Court to determine the said liability alone i.e., liability to pay contribution towards security charges. The direction in the order with regard to contribution towards the building maintenance and Driers' salary are confirmed. The appeal is allowed partly only in respect of the direction to pay Labour charges for Air Conditioning and servicing and Boiler maintenance.'
20. It is seen from the records that the documents relied on by the parties have not been properly appreciated and contribution has not been correctly assessed. In view of the above judgments and for the foregoing discussions, the order of the Employees Insurance Court in ESIOP.No.5 of 2003, dated 28.7.2015 is not sustainable and accordingly set aside and the matter is remitted back to the respondent. The respondent corporation is directed to assess the contribution based on the documents marked before Employees' Insurance Court and issue appropriate demand based on the same.
21. In the result, the appeal is allowed with the above directions. No costs. Conseuquently, the connected C.M.P.No.5354 of 2016 is closed.
Bharat Ratna “GanSamradni” Ms Lata Mangeshkar’s sad demise
on 6th February 2022 has left an irrevocable void in the world of music and
arts. To mourn the great singer’s departure and the resultant loss; under the
authority conferred to the State Government by Negotiable Instruments Act
,1881(statute 26 of 1881) section 25, the Govt. of Maharashtra hereby declares
Monday, 7th February 2022 as a public holiday for mourning.
Maharashtra Public Holiday on sad demise of Padmashree Ms Lata Mangeshkar
The declaration of a holiday by the government under theNegotiable Instruments Act of 1881 will not be compulsory or mandatory to
private companies falling under the Factories Act of 1948 and the State Shop
and Establishment Act. It will be applicable to Banks and Financial
Institutions and respective Governments departments only by which such
notifications are issued. If any company wants to give paid holiday then
there is no law restricts to give such holiday.
Refer –
Tara and Others vs.
Director, Social Welfare and Others [(1998) 8 SCC 671], the Hon'ble
Supreme Court
The Management Of vs The
Presiding Officer on 4 October, 2019 by the Hon'ble Madras High Court
Does Public Holiday Include Private Companies Also
Bharat Ratna “GanSamradni” Ms Lata Mangeshkar’s sad demise on 6th February 2022 has left an irrevocable void in the world of music and arts.
To mourn the great singer’s departure and the resultant loss; under the authority conferred to the State Government by Negotiable Instruments Act ,1881(statute 26 of 1881) section 25, the Govt. of Maharashtra hereby declares Monday, 7th February 2022 as a public holiday for mourning.
After getting Notification Public Holiday for the sad demise of Bharat Ratna Ms Lata Mangeskar, every one has started asking is Private Sector or company shall also remain closed on the public holiday for mourning by the Nation & State.
It is contended that on the demise of Bharat Ratna Ms Lata Mangeskar the Government of Maharashtra issued No. SarVasu-1122/Pr kra. 21/Karya – 29 under Negotiable Instruments Act, 1881
The object of the Negotiable Instruments Act, 1881 is only to define and amend the law relating to promissory notes, bills of exchange and cheques. Section 2(22) of the Negotiable Instruments Act, 1881, defines “Maturity” as follows:-
“The maturity of a promissory note or bill of exchange is the date at which it falls due.”
“When the day on which a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day”
It means “public holiday” includes Sundays and any other day declared by the Central Government, by notification in the Official Gazette, to be a public holiday.
In support of above expression please refer to the Tara and Others vs. Director, Social Welfare and Others [(1998) 8 SCC 671], the Hon'ble Supreme Court observed as follows
“2. There is no infirmity in the conclusion reached by the Labour Court on the basis of the decision of this Court in Ganesh Razak [(1995) 1 SCC 235 : 1995 SCC (L&S) 296 : (1995) 29 ATC 93] that the claim made by the appellants is not maintainable under Section 33-C(2) of the Act. This is obvious from the fact that the status and nature of employment of the appellants is itself disputed and unless there is a prior adjudication on merits of the status which is the foundation for making the claim for wages at the specified rates, the question of moving an application under Section 33-C(2) for computation of the wages does not arise. We find that the Labour Court has recorded some findings which may be relevant for the disputed status of the appellants as anganwadi workers/helpers even though it has rightly reached the conclusion that the applications do not lie under Section 33-C(2) of the Act. It is clear that the question of maintainability of the applications under Section 33-C(2) was required to be determined at the threshold and the question of examining the appellants' claim on merits relating to their status could have been gone into thereafter if the applications were held to be maintainable under Section 33-C(2). In view of the conclusion rightly reached by the Labour Court that the applications were not maintainable under Section 33-C(2), its other findings relating to the status and nature of employment of the anganwadi workers/helpers were wholly uncalled for. All such findings are, therefore, not to be construed as deciding any point relating to the status of the appellants.”
With reference to the facts presented in the lis on hand, admittedly, the Government declared a holiday in G.O.Ms.No.1005, 2018 (Protocol-I) Department, dated 28.07.2015. However, the said Government Order is inapplicable to the Private Companies, which all are otherwise governed under the provisions of the Factories Act
Also refer :- The Management Of vs The Presiding Officer on 4 October, 2019 by the Hon'ble Madras High Court which was contended that on the demise of the former President of India, Dr.A.P.J. Abdul Kalam on 27.07.2015, the Government of Tamil Nadu issued G.O.Ms.No.1005 Public (Protocol -I) Department dated 28.07.2015 announcing that 30.07.2015 was declared as a public holiday for all Educational Institutions and for all Government/Private Establishments under the Negotiable Instruments Act, 1881 as a mark of respect to the former President, said The said notification issued under Negotiable Instruments Act, 1881, is not applicable to the private sector employee.
Public Holiday for Bharat Ratna Ms Lata Mangeshkar’s sad Demise
Govt of Maharashtra
Notification
General Administrative Department
Mantralaya, Madam Cama Road,
Hutatma Rajguru Chowk,Mumbai 400062
Date 6th February 2022
No. SarVasu-1122/Pr kra. 21/Karya – 29
Bharat Ratna “GanSamradni” Ms Lata Mangeshkar’s sad demise on 6th February 2022 has left an irrevocable void in the world of music and arts.
To mourn the great singer’s departure and the resultant loss; under the authority conferred to the State Government by Negotiable Instruments Act ,1881(statute 26 of 1881) section 25, the Govt. of Maharashtra hereby declares Monday, 7th February 2022 as a public holiday for mourning.
This notification is available on the website www.maharashtra.gov.in and its unique identification number is 202202061710416407. This notification has
been authorized through a digital signature and is signed by the Governor of
Maharashtra.
A person who has ultimate control over the affairs of the factory is the “occupier” of the factory. As per the provisions of section, 2 (n) of the Factories Act, 1948, in case a factory is owned or controlled by the Central/State Government or any local authority, the person(s) appointed to manage the affairs of the factory, by the Central/State Government or nay local authority, shall be deemed to be occupier of that factory. Section 46 of the Factories Act, 1948 provides that it is the statutory responsibility of the occupier of a Factory to maintain a statutory canteen so long as the staff strength exceeds 250.
Supreme Court of India – Mohan Singh & Others Vs. The Chairman Railway Board & Others – 2015 LLR 1009
When Code Number is allotted to a contractor under the Employees’ Provident Fund Act, 1952, it becomes an establishment under section 2 ( e ) of the CLR Act. The Contractor having an independent code Number under the EPF Act, 1952, he is liable to pay EPF contributions in respect of employees whose salary is paid by him. Principle Employer is not liable to pay EPF contribution in respect of employees engaged through independent contractor who has been having an independent code Number under the EPF Act.
Punjab & Haryana High Court – Calcutta Constructions Company Vs. RPFC & others – 2015 – LLR 1023
When the relationship of employer – employee is missing, the provisions of Contract Labour (Regulation and Abolition) Act, 1970 would not apply. In the absence of relationship of employer – employee, the establishment would not fall in terms of “Establishment “ or “Contractor”.
Gujarat High Court – Bindeshwar Pathak Vs. State of Gujarat & Another – 2015 (146) FLR 545
Contractor and principal employer both are jointly and severally liable to satisfy the claim for compensation, as raised by the dependants / claimants of the deceased workman who was engaged by the contractor for carrying out construction work of the principal employer/appellant and died due to electric short circuit.
Bombay High Court – Nitin Vs. Ramesh & Others – 2015 (146) FLR 519
Milk Allowance being paid to each workman is a part of wages subject to ESI contribution since it does not fall within the category of sum paid “ to defray special expenses entitled on the workman by nature of his employment”. Section 2 (9) of the Employees’ State Insurance Act, 1948, makes it clear that the wages include any kind of remunerations received out of a contract or as an adhoc payment for work done outside the contract including overtime, provided it is received at an intervals of not more than two months.
Calcutta High Court – Kesoram Industries Ltd., Vs. ESI Corporation & others – 2015 – LLR – 1087
When the workers of the contractors holding licence under the Contractors Labour (R & A ) Act, have been working at the premises of and for the principal employer, they will not become the employees of the principal employer.
Delhi High Court – Ranbir Singh & Another Vs. Ganga Ram Hospital – 2015 – LLR 1071
Out of 4 members of the Internal Complaints Committee, 3 are to be women and one from an NGO, an independent member altogether. One lady member is to be of senior level.
Allahabad High Court – Shobha Goswani Vs. State of U.P. & others – 2015 – LLR 1038
It is not necessary that the workman must be actually working at the time of injury or the accident. When the death, in fact, was not due to pre-existing disease from which he was suffering but on account of factors coupled with his employment including stress and strain of the work, it would be right to conclude that the death occurred as consequence of and in course of employment.
Karnataka High Court - M.D., State Road Transport Corpn., Vs. Jayalakshmi and Others – 2015 – LLR 1068
If the committee so constituted by the employer does not have a senior level woman officer to head the committee, action of the committee is to be disregarded or liable to be set aside. One member from amongst Non-Governmental organisation or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment is to be nominated. At least one half of the total members so nominated are required to be women.
Gujart High Court – Shardaben Murlibhai Gurjar Vs. State of Gujarat & others – 2015 LLR 1095
Nominee is only to collect the amount for and on behalf of the legal representatives or for the benefit of the legal representatives of the deceased. Nominee has no right to appropriate the whole of the amount so collected unless he is sole legal representative or he is given a right to have testamentary succession on the basis of a valid will. Nominee has to disburse the amount , so collected, to the legal representatives of the deceased. If there is no valid will in his favour, he himself has no right to keep any share of the amount so collected by him under the Payment of Gratuity Act, 1972.
Kerala High Court – Alamelu Vs. Pushkala – 2015 LLR 1098
