DEC2014

The Compliance Calendar for Dec 2014 include filings under the Factories Act, Maternity Benefits Act and Minimum Wages Act.

In Important judgements, The Honourable Delhi High Court has held that mere submission of an application for leave does not mean that it is sanctioned. In another judgement, the ruling was that the representation by a lawyer in domestic enquiry is not permissible. The Honourable Punjab and Haryana High court has held that supervision and control by an employer is a decisive factor for determination of relationship of employer and employee. The Honourable Uttarakhand High Court has ruled that while recovering EPF arrears at first instance the attached assets be sold. The Honourable Bombay High Court has pronounced that principal employer is liable to pay compensation to employees of contractor. The Honourable Punjab and Haryana High Court has pronounced that the onus of proof shifts upon employer when workman pleads unemployment and a plea, when not taken before labour court, can’t be taken in the High Court.

In news to note, building workers are entitled to provident fund, EPFO to launch online transfer for PF trusts, Employees Provident Fund Organization (EPFO) has issued a circular for the process of receipt of challans acknowledgements. An EPF Appellate Tribunal will function in South India from Bengaluru and EPFO may allow multiple bankers to handle PF deposits.

We hope you find the contents of this newsletter relevant and useful. We welcome your suggestions and inputs for enriching the content of this newsletter. Please write to contactadp@adp.com

Hello Readers,

Compliance Calendar for Dec 2014 02

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News to note

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Important Judgments

Mere submission of for leave does not mean that it is sanctioned

04Representation by a lawyer in domestic enquiry is not permissible

Supervision and control by an employer is a decisive factor for Determination of relationship of employer and employee.

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While recovering EPF arrears at firstinstance the attached assets be sold

Principal employer is liableyo pay compensation to employeesof contractor

Building workers entitled to provident fund

EPFO to Launch Online Transferfor PF Trusts

The Apprenticeship (SecondAmendment) Rules, 2014

05Onus of proof shifts upon employerwhen workman pleads unemployment and a plea, When not taken beforeLabour Court, Can’t be taken inthe High Court

Employees Provident Fund Organization(SPFO), Receipt of ChallansAcknowledgements

EPF Appellate Tribunal in South

EPFO May Allow Multiple BankersHandle PF Deposits

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Compliance Calendar for the month of Dec 2014

10 Dec 14th

15th Dec 14

20th Dec 14

21st Dec 14

Andhra Pradesh & Madhya Pradesh

Gujarat

By Challan

By Challan

By Challan

By Challan

Karnataka

West Bengal

State wise regulations

Gujarat PT regulations

30th Dec 14

20th Dec 14 Kerala By Challan

Labour Welfare Fund Remittances

15th Dec 14 Remittance of Contribution EPF & MP Act 1952 By Challan

15th Dec 14International worker with wages and Nationality EPF & MP Act 1952 Statement in IW 1

21st Dec 14Remittance of Contribution(Main code and Sub Codes) ESIC Act 1948 By Challan

ESI Central

Due Date Activity Due Under Mode

Professional Tax Status Remittances

PF Central

By Challan

West BengalPT regulations

Maharashtra, Assam & Orissa State wise regulations

20th Dec 14 Karnataka PT regulations Karnataka Online

State Labour Welfare Fund Kerala

Karnataka PT regulations

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Compliance Calendar for the month of Dec 2014

Due Date Activity Due Under Mode

31 st Dec 14 Return by Principal Employer By Form XXVCLRA, 1970

CLRA Central

15 th Dec 14 Strength & Occupation Return By FormER-1 & ER-2

Employment Exchange (Compulsory Notification of Vacancies) Act, 1959

31st Dec 14During themonth

Annual Return Medical Examination,Pressure Vessel examination,Safety Committee Meeting &Canteen Committee Meeting

By Form 22

Factories Act, 1948 Central

Factories Act

31st Dec 14 Return By form K

Maternity Benefit Act, 1948

31st Dec 14 Return By form III

Minimum Wages Act, 1948

31st Dec 14 ReturnBy From IV,VI & VII

Payment of Wages Act, 1936

31st Dec 14 Return By From 2 &Copy of Form 1

Tamil Nadu Indl Est (Conferment of permanent Status) Act, 1981

31st Dec 14 Particulars of contribution By Form A

Tamil Nadu Labour Welfare Fund Act, 1972

31st Dec 14 Return By Form 2

Payment of Subsistance Allowance Act

In a case of Bir Singh Vs Delhi Transpost Corporation, the honourable Delhi High Court through honourable justices Mr.Sursh Kait pronounced that

Mere submission of an application for leave is not sanction of leave as held by the Supreme Court in the case of DTC V.Sardar Singh, AIR 2004 SC 4161

When the leave was sanctioned though without pay, there was no justification to remove the workman from service

Since past service record was neither supplied to the workman nor produced before the Tribunal, reinstatement of the workman with 50% back-wages is justified

Merely because in the record of service, the absence is recorded as leave without pay, it does not prevent DTC from establishing that, the absence amounts to a misconduct since as per provisions in the standing orders of the DTC the absence for 10 days or more without leave renders the employee liable to be treated as an absconder resulting in termination of his service

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MERE SUBMISSION OF FOR LEAVE DOES NOT MEAN THAT IT IS SANCTIONED

In an extraordinary case of Regional P.F. Commissioner Vs. Siel food and fertilizer industries, the honourable Delhi High Court through honourable justice Mr.V.Kameswar Rao pronounced that

The delinquent employee has no legal right to engage a legal practitioner in the domestic enquiry

The delinquent employee can engage a legal practitioner for defending his cause if there is no bar put up by Service Rules or Standing Orders with the permission of the disciplinary authority/enquiry officer

When domestic enquiry is to solve any complicated question of law, the engagement of a legal practitioner by the delinquent employee is

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REPRESENTATION BY A LAWYER IN DOMESTIC ENQUIRY IS NOT PERMISSIBLE

In a case of M/s Rattan Brothers vs. Appellate authority and others, the honourable Punjab & Haryana High Court through the verdict by the honourable Justice Mr.G.S. Sandhawalia pronounced that

The prima facie test to determine whether there was relationship of employer-employee is the existence of right in the master to supervise and control the work done by the servant not only in the matter of directing what work the employee is to do but also the manner in which he had to do the work

Once the employer has admitted that there was interse relationship since long with an exception that the employee was not their regular employee, it was for the employer to produce the record maintained by them to prove their case

If an employer does not produce the relevant records including attendance /wages register, cash book, ledger, voucher etc. to prove that the employee was not their regular employee, adverse inference to be drawn against the employer is justified

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SUPERVISION AND CONTROL BY AN EMPLOYER IS A DECISIVE FACTOR FORDETERMINATION OF RELATIONSHIP OF EMPLOYER AND EMPLOYEE.

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PRINCIPAL EMPLOYER IS LIABLE TO PAY COMPENSATIONTO EMPLOYEES OF CONTRACTORIn a case of Rauf vs. Manager, Midas care pharmaceuticals Pvt ltd, the honourable Bombay High Court through the verdict by honourable Justices Mr.M.T. Joshl pronounced that

The principal employer is liable to pay compensation under the employees’ compensation act, 1923 to

the employee of contractor who receives injuries of permanent nature, while working in the premises of

the principal employer, irrespectively of wilful disregard of safety devices, provided to him

If the principal employer admits in his defence the employment of the injured through contractor for

carrying out work at the premises of the principal employer, there is no need to prove employer-

employee relationship by the injured in between the principal employer and the injured

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In a case of Jugal Koshore Jhunjhunwala vs. Assistant provident fund commissioner and other,

the honourable Uttarakhand High Court through the verdict by honourable Justices Mr.Alok

Singh.J pronounced that

For recovery of EPF dues, the EPF authority, in view of provisions of sections 8B and 11 of the

employees’ provident funds and miscellaneous provisions act, 1952, first of all, shall take steps to

recover the same by sale of assets of the establishment and would not recover the same from the

employer/Director

The balance amount, if any, after effecting recovery from the sale of assets of the establishment the

EPF authority can recover the same against the employer of the establishment

Without exhausting remedy of attachment and sale of assets of the establishment, no proceedings can

be initiated against the employer under the employees’ provident funds and miscellaneous provisions

act, 1952 by the EPF authority

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WHILE RECOVERING EPF ARREARS AT FIRST INSTANCETHE ATTACHED ASSETS BE SOLD

ONUS OF PROOF SHIFTS UPON EMPLOYER WHEN WORKMAN PLEADSUNEMPLOYMENT AND A PLEA, WHEN NOT TAKEN BEFORE LABOUR COURT,CAN’T BE TAKEN IN THE HIGH COURT

In a case of District Red Cross society, Ambala city vs. Presiding officer, labour court, Ambala and Anr, the honourable Punjab & Haryana High Court through the verdict by ikts bench comprising honourable Mr. Satish Kumar Mittal and Mr. Arun Palli pronounced that

Termination of service of a workman, who has worked for more than 240 days without making compliance

of section 25F of the industrial disputes act, 1947, is illegal attracting reinstatement with back-wages

A plea of fact not taken before the industrial tribunal/labour court, cannot be taken before the court or the

appellate court

Onus to prove gainful employment of the workman, after his termination till the continuation of litigation, is

upon the management when initially the workman has pleased to be unemployed despites his best efforts

Employers should be considerate and problems of handicapped persons be attended with utmost human touch

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BUILDING WORKERS ENTITLED TO PROVIDENT FUND

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The Delhi High Court has dismissed the writ petition

of the builders association seeking to restrain the

central government from enforcing the provident fund

act on casual construction workers. They also wanted

the court to prevent the authorities from levying

payment for site worker engaged by sub-contractors

of the member of the association, consisting of top

builders in the country

The high court allowed the authorities to initiate steps

against the builders under the provisions of the law. It

was alleged by the builders that Rs.26000 crore is

lying with the fund authorities without being

distributed and the system was not working

The High Court said that was not good reason not to

contribute to the fund. It also asked the authorities to

devise a scheme to ensure workers get their dues

EPFO TO LAUNCH ONLINE TRANSFER FOR PF TRUSTS¡The employees provident fund organization was to launch an online facility in October, 2014 for

transfer of PF accounts for the organized sector workers covered under private PF Trusts, which

manage their employees’ retirement fund themselves, the labour minister official said.

THE APPRENTICESHIP (SECOND AMENDMENT) RULES, 2014¡

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Provided that in the case where the minimum rate of

wages for a trade is not noticed by the state

government of union territory, then maximum of

minimum wages of the scheduled employment

noticed by such state government or union territory

for semi-skilled workers shall be taken into account

for paying the stipend in respect of that trade

Provided further that in the case of trade apprentices

referred to in clause (a) of section 6 of the act, the

period of training already undergone by them in a

school or other institution recognized by the national

council, shall be taken into account for the purpose of

determining the rate of stipend payable

EMPLOYEES PROVIDENT FUND ORGANIZATION (EPFO), ISSUES CIRCULAR FOR THE PROCESS OF RECEIPT OF CHALLANS ACKNOWLEDGMENTS

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With reference to EPFO e-circular NBG/SMEBU-EPFO/ 46-2013-14 dated 25-09-2013 regarding

complaints received by EPFO that SBI branches do not give any acknowledgement of the challans received

at the counters and ask the depositors to drop the cheques in drop box without any receipt.

The compliant was reiterated by the central provident commissioner of EPFO in the meeting held with CGM

(SME) on 30/07/2014 and some cases of such practices at our branches were cited in support of the claim.

In this connection, EPFO advises that the following process laid down for the receipt of EPFO challans should

be followed meticulously.

On acceptance of the deposits by cheques/demand draft the branches are required to affix the date stamp,

on all copies of challans and a paper token issued as receipt of challans & cheques

On realization of the cheques/draft and authorization of entry in EPFO application a number is generated

which should be noted by the branch on the challans

Original of the challans should be retained by the branch and the duplicate/triplicate copies returned to the

depositor

As the challans are valid for a period of 15 days, it is imperative that the challans be verified before receipt

otherwise it may lead to reconciliation issues in case the validity period of the challans expires before the

proceeds of the accompanying instruments are realized

In view of the above, EPFO challans should invariably be receipted and not dropped in drop boxes. Necessary

notice may be displayed at the concerned branches. This instruction may also be displayed in the circle

website for information.

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EPF APPELLATE TRIBUNAL IN SOUTH¡

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The Ministry of Labour and Employment by exercising

its powers under sub section (1) of section 7D of the

Employees' Provident Funds & Misc. Provisions Act,

1952 by its Notification dated 7.11.2014 has constituted

EPF Appellate Tribunal for the States of Karnataka,

Tamil Nadu, Kerala, Andhra Pradesh, Telangana and

Goa and the Union Territories of Andaman and Nicobar

Islands and Puducherry

The EPF Appellate Tribunal in South will operate form

Bengaluru

On and from the date of publication of this notification,

the Presiding Officer of the Employees’ Provident

Funds Appellate Tribunal in Delhi shall transfer the

cases pending before the said Tribunal in respect of

establishments falling within the aforesaid jurisdiction

of the Employees’ Provident Funds Appellate Tribunal,

Bengaluru, to the said Appellate Tribunal at Bengaluru

EPFO MAY ALLOW MULTIPLE BANKERS HANDLE PF DEPOSITS

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Retirement fund body Employees’ Provident Fund Organisation (EPFO) is working on the idea of

having multiple bankers to handle its provident fund returns instead of depending upon its sole

banker State Bank of India (SBI)

The EPFO’s advisory body, the finance audit and investment committee (FAIC) in its meeting

firmed up the view on recommending multiple bankers, a source said. Now, the recommendation

will be put before the perusal and approval of the EPFO’s apex decision making body the Central

Board of Trustees’ (CBT) headed by labour minister, the source said

Once approved by the CBT, an amendment in the Employees’ Provident Fund Scheme 1952 by the

government would be sufficient to make the decision effective. Earlier in August, the EPFO had

provided a facility to firms having accounts in any of the specified 56 banks for making payment of

their PF dues online through its official web portal or through SBI portal

A senior official said that with EPFO switching over to the facility of multiple bankers, it would have

accounts in different banks in the country. The official said that this will help firms to have seamless

credit of money into EPFO’s accounts with any time lag

Besides it would reduce dependence on just one bank. EPFO has a subscriber base of over 50

million and it manages around Rs.6 trillion with annual incremental deposits of over Rs.70,000

crore

In a recent review of the EPFO performance by its central provident fund commissioner Mr. K.K.

Jalan, it was noted that by end of October more than 7.5 million claims were settled in the current

fiscal. Out of these claims, 97.56% were settled within the mandated 30 days and more than 69% of

the clims were settled within 10 days of the receipt

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