NOTIFICATIONS BY CENTRAL GOVERNMENT
Employees’ Provident Fund Organisation (“EPFO“) issued FAQs on higher pension
Recently, the EPFO, Ministry of Labour and Employment released the Frequently Asked Question’s (“FAQs”) on higher pension under the Employees’ Pension Scheme, 1995. The FAQs provided clarifications on the following aspects: (a) documentary evidence submitted as proof of joint option; (b) applicable formula for member pension calculation and (c) pensionable salary. The FAQs on Joint Option under para 11(3) and/or para 11(4) of the Employees’ Pension Scheme (EPS) 1995 has been issued in accordance with Hon’ble Supreme Court Judgment dated November 4, 2022 in SLP (C) Nos. 8658-8559 of 2019 which provides the option to certain employees to exercise the joint option with the employer to contribute the monthly EPS on the higher basic wage instead of the wage ceiling from the date prior to September 01, 2014, directing employees start contributing to the PF on a higher basic wage which was more than ceiling prescribed under the EPF Scheme 1952.
EPFO issued last opportunity to apply for a higher pension
On June 26, 2023, the Employees’ Provident Fund Organisation (“EPFO“) extended the last date of filing applications for validation/joint options for a higher pension till July 11, 2023, from June 26, 2023. The last opportunity of 15 (fifteen) days is being given to remove any difficulty faced by the eligible pensioners/employees. However, an eligible pensioner/employee, who on account of any issue in the updation of KYC faces difficulty in submitting an online application, may immediately lodge a grievance on EPFiGMS for resolution by selecting the grievance category of ‘higher pensionary benefits on higher wages’. This will ensure a proper record of such a grievance for further action.
Additionally, considering the representation of employers and employers’ associations requesting to extend the time period for uploading wage details of applicant pensioners/employees, the EPFO granted 3 (three) additional months to employers for submitting wage details, etc. online by September 30, 2023.
This is the second extension of deadline for applying for a higher pension. Earlier, it was extended from May 3, 2023, to June 26, 2023. Online facility has been made available by EPFO for submitting Applications for Validation of Options/Joint Options for pension on higher wages. The facility is for eligible pensioners/members in compliance with the Hon’ble Supreme Court judgment dated November 04, 2022.
ESIC mandated seeding of Aadhar number for availing pension benefits
On June 27, 2023, the Employees’ State Insurance Corporation (“ESIC“) directed all the pensioners to seed and authenticate the Aadhar in ESIC staff/pensioner module available on www.esic.gov.in, latest by June 30, 2023. A Pensioner can seed the Aadhar number by himself/herself by using android mobile phone/laptop/desktop PC by visiting ESIC website. Further details are available on the following link:
https://esic.gov.in/attachments/circularfile/32df58f6736328268183c22bf00c8b2e.pdf
Plantation workers to undergo Aadhaar authentication to avail benefits of pension, life assurance and linked deposit insurance under the Plantation Worker Scheme
On June 26, 2023, the Ministry of Labour and Employment (“MoLE“), in pursuance of Section 7 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (“Aadhaar Act“), notified that tea plantation workers eligible for receiving the benefits under the Central Sector Scheme of Family Pension cum Life Assurance Scheme and Deposit Linked Insurance Scheme (“Plantation Worker Scheme“) will now be required to furnish proof of possession of the Aadhaar number or undergo Aadhaar authentication. Any individual desirous of availing the benefits under the Plantation Worker Scheme who does not possess an Aadhaar number or has not yet enrolled for Aadhaar, is required to make an application for Aadhaar enrolment before registering for the Plantation Worker Scheme, provided that he/she is entitled to obtain Aadhaar as per Section 3 of the Aadhaar Act, and such individual has to visit any Aadhaar enrolment centre (list available at the Unique Identification Authority of India (UIDAI) website www.uidai.gov.in) to get enrolled for Aadhaar. Till the time Aadhaar is not assigned to the individual, benefits under the Plantation Worker Scheme is to be given to such individual, subject to the production of the following documents: (i) Bank or Post office Passbook with photo; or (ii) Permanent Account Number (PAN) Card; or (iii) Passport; or (iv) Ration Card; or (v) Voter Identity Card; or (vi) MGNREGA Card; or (vii) Kishan Photo Passbook; or (viii) Driving License issued by the Licensing Authority under the Motor Vehicles Act, 1988; or (ix) Certificate of Identity having photo of such person issued by a Gazetted Officer or a Tehsildar on an official letter head; or (x) any other document as specified by the MoLE.
NOTIFICATIONS STATE SPECIFIC
BIHAR
ESIC extended its medical benefits in all the areas of Arwal, Jamui, Kaimur, Khagaria, Kishanganj, Madhepura, Madhubani, Nawada, Purnia, Sheikhpura and West Champaran
On June 22, 2023, the ESIC, with effect from June 1, 2023, extended medical benefits laid down under Regulation 95-A of the ESI Regulations and the Employees’ State Insurance (Medical Benefit) Rules, 1958, to the families of insured persons in all the areas of Arwal, Jamui, Kaimur, Khagaria, Kishanganj, Madhepura, Madhubani, Nawada, Purnia, Sheikhpura and West Champaranin districts in the state of Bihar.
HARYANA
Payment of contribution to the fund established under the Haryana LWF Act
On June 26, 2023, the Government of Haryana directed the employer and employee to comply with the Section 9A of the Punjab Labour Welfare Fund Act, 1965 (as applicable in the state of Haryana) [“Haryana LWF Act“], which requires the employees to contribute to the labour welfare fund every month an amount equal to 0.2% (point two percent) of his salary or wages or remuneration subject to a limit of INR 31/- (Indian Rupees Thirty One) and each employer in respect to each such employee to contribute to the labour welfare fund every month, twice the amount contributed by such employee. The said rate of contribution has been effective from January 1, 2023 and will be indexed annually to the consumer price index beginning from first of January each year.
PUNJAB
Shops and establishments are allowed to remain open on all days of the year
On June 2, 2023, the Government of Punjab exempted all shops and establishments from Section 9 (opening and closing hours) and Section 10(1) [weekly close day] of the Punjab Shops and Commercial Establishments Act, 1958, allowing them to keep open all 365 (three hundred sixty-five) days of the year for a further period of 1 (one) year, i.e., up to May 31, 2023, unless it is revoked, subject to the following conditions: (a) 1 (one) weekly holiday to employees; (b) 1 (one) hour interval of rest; (c) health, safety and welfare facilities to women employees engaged in night shift; (d) working hours of 9 (nine) hours a day and 48 (forty eight) hours a week and spread over 11 (eleven) hours in a day and (e) allowing employee festivals and national holidays.
MAHARASHTRA
Amendment under the Maharashtra Shops Rules
On June 27, 2023, the Government of Maharashtra amended Rule 16 of the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018 (“Maharashtra Shops Rules“) by introducing the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) (Amendment) Rules, 2023. Presently under Rule 16 of the Maharashtra Shops Rules, it is mandatory for the employer to publish notice of shift schedule on the website and at a conspicuous place of the establishment, however, subsequent to the amendment, employer shall have the option either to publish the said notice on the website or at a conspicuous place of the establishment.
MIZORAM
Minimum Wages Mizoram
On June 16, 2023, the Government of Mizoram revised the minimum rates of wages of employees engaged in scheduled employment, which shall be effective from April 1, 2023, in the entire state of Mizoram.
TAMIL NADU
Amendment under the TN Factories Rules
On June 28, 2023, the Government of Tamil Nadu amended the Tamil Nadu Factories Rules, 1950 (“TN Factories Rules“). The amendment omitted Rule 47 of the TN Factories Rules, which requires the occupier of a factory to whitewash or colourwash walls, ceilings and partitions of every latrine and urinal.
RELEVANT CASES
DELHI HIGH COURT – Hospitals are not exempted from the applicability of the Bonus Act
In Moolchand Kharaiti Ram Hospital & Ayurvedic Research Institute V Workmen & others (LPA 576/2018), the Delhi High Court, vide its judgement dated May 26, 2023, upheld the order passed by the Industrial Tribunal that hospitals are not exempted from payment of bonus under Section 32(v)(c) of the Payment of Bonus Act, 1965 (“Bonus Act“). Rejecting the contentions of hospital management that surplus income would not change the charitable character of the trust and the dominant purpose of the hospital, the Court observed that if an enterprise is being run on commercial lines involving the generation of profit, then it cannot escape liability under the Bonus Act by contending that it was not established for the purpose of profit. Although the profit generated by the hospital might not be distributed amongst the trustees and might be ploughed back into the corpus of the hospital to better its facilities and augment its quality of services, this would not allow the hospital to be exempt from the applicability of the provisions of the Bonus Act.
GAUHATI HIGH COURT –Burden to prove that the employee is a workman would be upon the employee and not upon the Management
In the Industrial Co-Operative Bank Ltd. And Anr. vs. The State of Assam and Ors. (W.P.(C) No. 1636/2022), the Gauhati High Court vide its judgment dated June 21, 2023, while quashing the order of industrial tribunal, reinstated a delinquent employee appointed as the chief manager (HR and Admin) of the bank. The Court observed that once an objection as to the maintainability of the reference was raised by the bank by taking the plea that the employee was not a workman under Section 2(s) of the Industrial Disputes Act, 1948 (“ID Act“), regardless of whether any written statement is filed on not, it was incumbent upon the industrial tribunal to record a finding on the aspect of the matter based on the materials produced by the employee. The burden to prove that the employee is a workman for the purpose of section 2 (s) of the ID Act would be upon the employee and not upon the management.
BOMBAY HIGH COURT – 50% of part-time employment to be considered for calculating eligibility service period for sanctioning pension
In Smt. Pratibha Prakash Almast vs. the State of Maharashtra (W.P. No. 80/2020), the Bombay High Court, vide its judgement dated June 22, 2023, directed the employer to sanction the pension of an employee who has rendered 16 (sixteen) years’ service as a par-time employee. The Court observed that 50% of the part-time employment rendered by the employee shall have to be considered for the purpose of calculating the qualifying service of 10 (ten) years for sanctioning the pension to the employee.
HIGH COURT OF HIMACHAL PRADESH – Maternity leave is fundamental right enshrined under the Indian Constitution
In State of H.P. & Ors. vs. Sita Devi C.W.P No. 647/2020, the Himachal Pradesh High Court vide its judgment dated June 12, 2023, upheld the order of HP Administrative Tribunal while granting benefit of deemed maternity leave to the daily wages’ employee as per the Maternity Benefit Act, 1961 (“Maternity Act“). The Court observed that the object of maternity leave is to protect the dignity of motherhood by providing full and healthy maintenance to the woman and her child. As maternity leave is intended to achieve the social justice to women, motherhood and childhood, both require special attention. The Court observed that a daily wage woman employee at the time of advance pregnancy could not have been compelled to undertake hard labour, as it would have been detrimental to not only to her health and safety but also to the child’s health, safety and growth. The maternity leave is a fundamental human right of the respondent, which could not have been denied to her. Therefore, the Court held that the action of the employer was violative of Articles 29 and 39D of the Constitution of India.
KERALA HIGH COURT – It is at the discretion of the employer to decide the academic qualification of a candidate for recruitment
In Navaneeth Mohanan K.P. & Ors. v. State of Kerala & Ors. (W.P. (C) No. 16098/2023), the Kerala High Court, vide its judgment dated June 20, 2023, rejected the contentions of employees that the B.Tech degree possessed by them is a higher and superior qualification than PGDCA and hence candidates like the employees who hold B.Tech degree need not separately hold PGDCA for eligibility to get appointment. The Court observed that “whether one qualification is equivalent to another or whether one qualification would subsume another lesser qualification are factors within the realm of academics and in the matter of recruitment to services, it is for the employers to, based on their assessment and requirements, decide such matters“.
