Maternity leave up to 180 days cannot be claimed by every woman employee: HC

High Court of J&K and Ladakh has held that maternity leave up to 180 days cannot be claimed by every woman employee.

Deciding a petition filed by a lady doctor working in SKIMS Soura here, a bench of Justice Muhammad Akram Chowdhary pointed out that the employer has to keep in mind the nature of duties of such employees as well. The doctor had challenged an order of the tertiary care hospital authority by virtue of which she was granted 45 days maternity leave from December 11 last year to January 24, 2022. In her plea, the medico had sought the court intervention for grant of her maternity leave up to 180 days instead of 45 days.

The petitioner contended that she was entitled to the maternity leave as a ìmatter of rightî and was seeking direction in keeping with the SRO-353 dated 6 October 2015.

Labour code may cap allowances at 75% of wages in first year, 50% over next three years.

The government is mulling a high limit on allowances at 75-80% of the wages of an employee in the first year of the roll-out of the labour code on wages. This could gradually be brought down to 50% over three years, as specified in the code, people familiar with the deliberations told ET.

The other major change under consideration is restoration of the threshold on the number of employees in an organisation to 100 from the proposed 300 under the industrial relations code for seeking the government’s permission before retrenchment or closing down operations.

The industry has resisted a cap on allowances at 50% of wages, reasoning it would raise their employee costs.

Under the code, wages include all remuneration by way of salaries, allowances or otherwise and include basic pay, dearness allowance and retaining allowance, if any, but exclude allowances such as house rent allowance and overtime allowance.

The code provides that if all these allowances not included in wages together exceed one-half or the per cent so notified, the excess amount shall be deemed as remuneration and added to wages under this clause.

Such an increase in wages would require higher payment to provident fund by both employer and employees and also raise gratuity payments. This would reduce take-home pay for workers, though they would gain a higher contribution to retirement savings.

“The government is discussing changes that can be made to the code in view of the concerns expressed,” an official privy to the deliberations said on condition of anonymity.

The Code on Wages was passed by Parliament in 2019 while the Industrial Relations Code was approved in September 2020.

Though the rules governing the four codes passed by Parliament were ready by March 2021, they have not yet been implemented because of stiff resistance from employers and employees on certain issues.

The industry fears the proposed changes in the code, at a time when the economy is still recovering from the impact of the pandemic, would put unnecessary pressure and increase their employee cost.

“This has prompted the Centre to relook at the necessary changes that can be made to ensure minimum additional liability on employers, especially now when the pandemic has hit the businesses hard,” said another person aware of the deliberations.

The Industrial Relations Code had raised the threshold for requirement under a standing order, which are rules of conduct for workmen employed in industrial establishments, to more than 300 workers from the earlier 100 workers.

This would have given more businesses freedom to manage their workforce without requiring government permission.

Experts said tweaking some of the provisions might help the government win over the employers and trade unions’ confidence, thus enabling faster implementation of the codes which are critical to the ease of doing business.

“Phased introduction of capping allowances at 50% will help the government buy-in employers’ consent for more important minimum wage provisions to kick in,” said labour expert KR Shyam Sundar.

“Further, redefining the threshold from 300 to 100 will have limited implications for flexibility for employers but will largely appease the trade unions,” Sundar said, adding it will enable the government to roll out all the codes faster

Haryana State Employment of Local Candidates Act, 2020

The Writ Petitions challenging the constitutionality of the Haryana State Employment of Local Candidates Act, 2020 was heard by the Punjab and Haryana High Court today. After hearing Adv. Mr. Tushar Mehta, Solicitor General of India on behalf of the State of Haryana, the High Court admitted the Writ Petition and granted a stay on the operation of the Act.

This Act is regarding compulsory recruitment of the locals in the State of Haryana upto the salary of Rs. 30,000/- pm.

Daughters to inherit father’s property in the absence of a Will, rules SC

Daughters are entitled to inherit father’s self-acquired property, the Supreme Court ruled recently. The Court said that the daughters of a Hindu male who dies without a will or intestate will inherit the property of the father. In such cases, the daughters will be given priority over other family members like sons and daughters of the father’s siblings.

The court said, “If a property of a male Hindu dying intestate (without a will) is a self-acquired property or obtained in the partition of a coparcenary or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals (such as sons/daughters of brothers of deceased father).”

This verdict sheds light on the Hindu Succession Act (HSA) of 1956. The Hindu Succession Act of 1956 was amended in September 2005 following which women were considered as joint holders or coparceners of property.

As per reports, in this case Marappa Gounder, a Hindu male had self acquired property. He had a daughter Kupayee Ammal. After the death of Kupayee Ammal the property was acquired by five heirs of the younger brother of Marappa Gounder, Ramasamy Gounder. One of the five heirs, Thangammal had filed a suit for partition of the property.

The court said that as per the Hindu Succession Act 1956 Ramasamy Gounder’s daughter, being Class-I heirs of their father, shall also be the heirs and entitled to the share in the suit properties.

It also shed light on the provision of the act where the inherited property of a Hindu female dying intestate or without will goes back to the source.

“If a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband,” the court said.

The SC bench of Justices S Abdul Nazeer and Krishna Murari held that after the father’s death, the property would devolve by inheritance and not by survivorship.

“The main scheme of this Act is to establish complete equality between male and female with regard to property rights and the rights of the female were declared absolute, completely abolishing all notions of a limited estate. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property,” the Court has said as per reports.

Views on budget 2022:

Eventhough budget is not excellent, it is good in long term perspective.It is in fact a booster budget for economical growth.Big focus on infrastructural developement such as roads and railways.

I am sure above focus will definitely creat employment opportunities.

In defence sector the provision is not made only for purchases but around 65% funds are allocated for inhouse and domestic creation of defence equipments. This will also lead to employment growth.

This budget will also increase pvt sector competitiveness in overall terms.

This budget is very unique & different but impactful since over a period if time Govt has come to the conclusion that the budget is not the occasion to make big announcements and propose changes every year.

In my considered opinion, the way budget is discussed in India, it does not happen in other countries during their budget session. There is really no need to make the budget presentation a major event.

Hence even on TV Channels we will observe less discussion on what citizens got and more discussion on what Govt does and how they implement the budget.

Large investment in infrastructure will definitely boost the growth and give momentum to economy in long term.

No doubt this budget did not make any announcement on labour laws reformations and implementation of labour codes but it seems it’s there in their mind.

Let’s wait for few more announcements in coming days.

By Dayanand N. Mangaonkar

Replacing Income Tax with Expenditure Tax is the Blockbuster Reform India Needs…

The shift from the income to expenditure base will not only mitigate harmful effect of a non-comprehensive income tax but will reduce extravagant consumption and promote savings .

Every stimulus package to boost the economy has its own burdening impact on the country’s fiscal position. However, a stimulus through tax reforms will be more helpful in infusing resilience in the economy in a sustainable manner. Finance Minister Nirmala Sitharaman is seeking suggestions from stakeholders in the run-up to finalise the annual budget for 2022-23. It is high time to go for an out-of-the-box initiative on the front of personal income tax. There is an opportunity to provide stimulus through direct tax reform in the form of an expenditure tax, which will be a more rational substitute for the income tax.

If personal income tax is done away with, about 6.32 crore people will have the freedom from the burden of submitting annual Income Tax Returns (ITR). The ITR has a demoralising effect on new entrepreneurs and emerging start-ups to grow as they are not exempted from personal tax compliances. Income tax regulations require people to maintain and submit various records and file returns. The Income Tax Department tirelessly scrutinises millions of returns, which are followed by queries, clarifications, refunds and protracted correspondence.

The litigations, if any, go on for years, taking a toll on both the citizens and the government.

The various organisations complying with TDS will also be free from the burden of collecting, remitting and submitting various returns if personal Income Tax is shelved.

67% of Karnataka-based firms favour phased rollout of Labour Codes:

About 67% of the industry prefers a phased rollout of Labour Codes for better preparation and ease of implementation, according to a survey conducted on over 133 companies in Karnataka, many of which have national operations.

The survey was done by Karnataka Employers’ Association (KEA) and employment law consulting firm BCP Associates.

According to a press release on the survey findings, 67 per cent of the industry prefers a phased rollout of the Codes, rather than all at once, for better preparation and ease of implementation.

Around 34.9 per cent of companies have been proactive in taking various steps towards implementation of the Codes while 18.6 per cent have not initiated any action thus far. It also found that 83 per cent of the industry clearly understands that the Codes have an all-encompassing implication on the entire employee lifecycle, as opposed to the general perception that the Labour Codes only entail changes to wages.

The four Labour Codes on wages, industrial relations, social security and occupational safety, health & working conditions have already been passed by Parliament.

The union government has firmed up rules under the Codes to enforce them and intends to implement them in one go.

WFH has put working women under ‘triple burden’:

Work from home during the Covid pandemic has its benefits but it has also put working women under a “triple burden”, says President Ram Nath Kovind.

In a letter to young Indians published in the Manorama Yearbook 2022, he says women already have the double burden of paid work and “unpaid work”, that is, domestic responsibilities.

“On top of that, as children attend school from home, their learning has to be supplemented by the parents, and that task usually falls on the mother,” Mr. Kovind writes in the letter, titled “Arise, The Future Beckons”. “The new stress on family time should be welcome for male employees, so that they can share some of the responsibilities of their partners. In any case, studies show that hard work in itself can be even counterproductive and as the number of hours spent on work goes up, productivity comes down in some instances,” he writes.

New startups, IT/ITES companies exempted from Haryana local employment act

Haryana Deputy Chief Minister Dushyant Chautala on Tuesday said that the new startups and new IT/ITES companies will be exempted for two years under the Haryana State Employment of Local Candidates Act, 2020, which mandates 75% job reservation for locals.

Short-term (45 days) work will also be exempted from this Act, the deputy informed while addressing media in Chandigarh.

Dushyant said that in addition to sowing of crops, embroidery, the primary works related to fruits, vegetables, tea leaves, coffee, fish, animals etc. also taken up under the ‘Haryana State Employment of Local Candidates Act are exempted. Exemptions have also been given to domestic servants and those industries for which skilled workers are not available

Few Important Judgments for your reference & perusal;

• Shouting of slogans has to be at a distance of 300 meters from the premises of the Hotel where foreigners visit and stay.
  East India Hotels Ltd. vs. Oberoi Intercontinental Hotel Employees Union (Regd.), 1994 LLR 929 : 1995-I LLJ 1177 (Del. HC)
•  Territorial jurisdiction for raising an industrial dispute will be at the place where termination orders were issued.
  S. Ramesh vs. Tamil Nadu Petro Products Ltd., Manali Express Highway, Manali, Chennai, 2001 LLR 367 (Mad. HC)
•  Assaulting and abusing the Factory Manager, outside the factory premises will amount to misconduct and the dismissal of the workman will be justified.
  Narayanan vs. State of Tamil Nadu (represented by Secretary, dept. of Labour & Employment), Madras, 1999 LLR 382 : 1999-I LLN 693 (Mad. HC)
•  The onus of proof lies on Management to prove abandonment of service by a workman.
  Bhuna Co-operative Sugar Mills Ltd., vs. Mohinder Singh, 2001, LLR 141 (P&H HC)
• Dismissal is not disproportionate when the charge proved in criminal trial is of serious nature i.e. rash and negligent driving.
  Jage Ram vs. DTC, 2013 LLR 478 (Del. HC)

  Transfer when unsustainable, the workman to be reinstated at his original place.
  The Management, Micro Labs Limited vs. Patil Veershetty & Anr. Case No. WMP. No. 3730 OF 2021 IN WP No. 10833 of 2020 dt. 26.10.2021 (Mad. HC)

What is Set-On and Set-Off under Payment of Bonus Act, 1965?

(i) Set-On:
Where in an accounting year, the allocable surplus exceeds the amount of Bonus payable to the employees under the Payment of Bonus Act, the excess amount shall subject to 20% of the total salary or wages of the employees employed during the account year shall be carried forward for being Set-On in the succeeding accounting year and so on to be utilised for the purpose of payment of Bonus.

(ii) Set-Off
Where in an accounting year, there is no allocable surplus or the allocable surplus of that accounting year falls short of the amount payable to the employees under the Payment of Bonus Act and there is no sufficient amount already set-on, then no such amount as is necessary for payment of Bonus under the Payment of Bonus Act shall be carried forward for being set-Off in the succeeding account year.&

If you have any other opinion/views/inputs/advice or any other latest case laws differing the above, please do share it in this Group.