Labour Law & Hr Consultant
Executive Human Resource At Emcure Pharmaceuticals
Manager- Human Resources
Management Coach I Hr Strategist I Career
Assistant Manager Hr-ir & Legal
General Manager - Hr
Raj Kumar Hansdah
Shrm, Od, Hrd, Pms
K C S Kutty
H.r Manager At Vasai.
As per Sec 53 of workmen's compensation act 1923............
"An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act."
As he was already covered under group insurance and you have already got the insurance amount paid,you are not responsible now to compensate his family from employer's pocket.
8th July 2013 From India, Delhi
What you have quoted is misleading. It might lead to a wrongful action which might be taken by the concerned member.
Workmen's Compensation Act 1923 has now been renamed as Employees'Compensation Act. There is no section 53 in it, as quoted by you.
Prima facie, a reading of what you have quoted in itself implies that it is not about Workmen's compensation Act.
Kindly ascertain from your notes/references, whether you are talking about the Employees Compensation Act or Employees State Insurance Act 1948 ??
Can an employee getting a salary of Rs. 80,000 be covered under the ESI Act ???
8th July 2013 From India, Delhi
8th July 2013 From India, Thiruvananthapuram
I would like to draw your attention to my reply to discussion no.418525 regarding whether a software engineer is an employee under the Employees Compensation Act,1923. You have just mentioned that the deceased was a top executive - if he was predominantly discharging administrative functions, he was not an employee.
8th July 2013 From India, Salem
Thank you for your input. But pls gave me clarity on the following points also
- He was our Group Head for Marketing - Whether he comes under the employee compensation act as an employee?
- From our company side we had given the group insurance amount to his family so do we have the obligation to pay a compensation to his family other than that amount because his wife approached our company for compensation.
- He worked with us for more than 5 yrs & he was died during an assignment at abroad during a robbery attempt.
8th July 2013 From India, Bangalore
The intentions of your company does not seem to be bonafide.
Why only a part payment was released ??
Knowing fully well the hardship the family must be undergoing after the on-duty death of its earning member !!!
And now the company is trying to avoid payment of any compensation for death during the course of employment !!!
Why is the need of a succession certificate here ?? What about the Nominations as given by the deceased employee ??
Why was this simple routine procedure referred to the Company lawyers (unless the company wants to shy away from its responsibility and dues) ??
This was a regular HR action. What happens if the Company lawyer gives the opinion that unless there is a decree by court, no payment needs to be done ??
Would you wait till the aggrieved part files a court case and then wins the case after some years ??
(Meanwhile the ex-employee's family suffers) !!!
It is impossible to bring back a dead employee to life; but the least an employer can do is pay all the dues of the dead employee gracefully to his dependents.
Its a very deplorable for a company to withhold final payments even in case of death on duty.
9th July 2013 From India, Delhi
I fully agree with Rajkumar Hansdah. Can anybody bring back the dead person alive? Ask if this case happened to you or any other top people who now playing the tactics to add further hardship to the diseased's family by delaying / denying the due benefits (as you mentioned a part payment is released).
This unfortunate executive died in the course of employment.
Why succession certificate is needed? Is there any third person came forward to claim as his family? Or had he not mentioned in his PF / Gratuity form any nominee?
Please note, HR though considered as a support function, is also function as brand manager of organisation. If you treat your employees well, they well spread good image of your company. That in turn is a branding process of your organisation without any advt expenses.
You think in future if you want to send any other employee abroad with any assignment, would he / she go knowing that one of their colleague's family is suffering now due to company's lethargic approach? What image your employees will be carrying out due to this? Would they refer any of their friends / family members to your company for employment? Do you think the current employees would like to stay back in your company happily due to these types unhealthy attitudes? would you as an individual, like to continue (from your heart) knowing this incidence?
Your employees are not machines to throw away.
Prompt your management to think with human heart and request to release at lease whatever is due as per eligibility, if situations are not complex. And any further contribution from management side to his family will always be a good Samaritan act.
Please remember - all Acts, Rules, Laws, etc. are drafted to ensure minimum benefits to the sufferers, if you offer above this bar, no law will punish you, but always be remembered by all.
9th July 2013 From India, Pune
First of all the asking succession certificate from the dependent is nothing but time consuming . it is not easy to get succession certificate in a day or two , it will take at least six months to one year. and under the circumstances the wrong message is going to the existing executives or Managers or Staff members.
About compensation under work man compensation , Management could have pro active to give the benefit to the Manager who died while on duty .
Secondly , recently my company has taken work man compensation policy from one of the government insurance company. under this policy all employees including Managers are covered . the benefit will be given only in case of died or injured while on duty . Now here the question of Manager and employee does not arise.
Thirdly law is silent . if law is saying that he was not employee being a senior executive , then law dose not clear that he was the owner of the company.
Kindly speak to your management and sort it out amicably . because this is the specimen situation where every body is looking at management steps .
9th July 2013 From India, Thana
The most important question we need to ask ourselves is that if the laws are made to assist us or defend ourselves? We cannot become heartless under the pretext what a law says. We also cannot relax by paying the minuscule amount of the group insurance.
We are the face of the employee as well as an employer to each other. By delaying the procedure coz of documentation will send a very negative vibe to the existing staff. You mentioned that the executive died in an robbery attempt on an official tour. Also he is a part of the company for last five years. It's a pity that we let our staff's family suffer when a stability of 5 yrs for a marketing professional is not seen in today's competitive market.
I would as an HR recommend few options to the management:
# Offer employment to the spouse if the deceased executive was the sole earning member of the family.
# Offer atleast the basic salary as monthly compensation to the family till his age of retirement
And do let us know about your management's decision. I am sure all of us are awaiting a win win solution.
9th July 2013 From India, Mumbai
So often the humane side of the Human Resource professionals takes a backseat in the pursuit of pleasing the management. It is in situations like this that the HR should stand up and play the most humane role.
Anhow already our esteemed members have posted valuable inputs. Please consolidate the suggestions and put it up to your Management team and try your best to steer appropriate action which will benefit the deceased employee family and also leave behind a strong impact on the employees hence increasing their sense of belongingness towards the company.
This is a sensitive issue and hence the pace at which the company handles this matter is very important.
ALL THE BEST !!
9th July 2013 From India, Pune
9th July 2013 From India, Mumbai
under amended employees compensation act all employees are entitled for compensation as if his salary is 8000 pm and you need to deposit the same with concerned workmen compensation authority ie Dy commissioner of labour as it ia an accident while on duty
9th July 2013 From India, Hyderabad
Very well I can understand all of your concern for the deceased and his bereaved family.Material comforts and monetary support apart, the care and affection showered by the bread winner of the family upon his wife and children cannot be substituted at all.How ever, I respectfully refute the views of certain friends about the applicability of the Employees Compensation Act,1923 to the deceased employee in view of the limited sweep of the definition clause read with the exhaustive Schedule II. Right or wrong, unfortunately,any Social Security Labour Legislation is selective in its applicability and minimal in its scales of compensation.So, let legality be out of the current discussion. Earnestly I do hope that Mr.Xavierr can still don the mantle of a real saviour and play an active role in changing the mind-set of the management from strict legal orientation to humane consideration and compensate the bereaved family in the manner befitting his sacrifice as suggested by the members.Such a gesture of magnanimity from the management is part of its corporate social responsibility, I suppose for the employees cannot be isolated from the rest of the society.
9th July 2013 From India, Salem
First of all understand that what is provided by law in this type of cases is the minimum..There is no maximum limit. Maximum is the magnanimity of the management.See what Tatas has done to the victims of 26/11 Bombay attack.
Now about his eligibility under EC Act,you pl read sec 2(dd) and schedule 11 of the EC Act 1923.
Further length of service is immaterial.
For further discussion you can call
9th July 2013 From India, Thiruvananthapuram
he lost his life and this is a bog loss for his family. Why to deny the compensation? There are copmanies who take the life cover for employees (max 3 time of annual CTC). Why not to start good practices? Afterall he must have sweated for your copmany.
10th July 2013 From India, Pune
10th July 2013 From India, Lucknow
My View –
As stated by other members, Employer should take the responsibility at least by ensuring the complete benefits provided to the family members of the deceased employee whether it is a top executive or entry level individual as per the act.
Coming to the employees compensation act, In this case employer is liable to pay the compensation. I have attached the employees Compensation calculator for calculating compensation in case of death, Permanent Total Disablement, Permanent Partial Disablement. I have picked up this from the earlier posting and I believe this would be useful.
Below all should be taken care and need to settle to the family members:
1) As per Employee’s compensation act. I believe
2) Gratuity – Monthly Basic * 15/26 * no. of. Year Services due ( Example: if the person age is 30 and the retirement age is 58 then we should
take 28 years for the calculation)
3) Leave encashment
4) Provident Fund – By working with the department
5) All salary dues etc..
Thanks and Regards
11th July 2013 From India, Hyderabad
Thanks for the note and correcting my response, could you please share the correct calculation which would be helpful.
We have paid to one of our deceased employee as per the calculations provided. The calculation was confirmed by our consultant hence I thought it is the right way of calculating.
Thanks and Regards
11th July 2013 From India, Hyderabad
As per your calculation a person with 30 years of service with 2 more years to retire will get less amount than a person with 5 years service and 30 more years to retire.
Multiplication is to be by the No of years of completed service.Not by the years due for retirement
Eg In the case of a person with salary of Rs 20000/pm and completed service of 30 years the gratuity amount will be
Note that the age of employee has no relevance.But in the case of LIC's group gratuity policy they ,in the case of death cases,gratuity for the remaining service also in addition to the amount payable as per the Act.
12th July 2013 From India, Thiruvananthapuram
I agree with both of your comments.
However, I think their company may be using the formula of - no. of years completed or no. of years of service left; whichever is HIGHER. (In case of death in the course of employment).
In such a case, it would be legal as the employee gets MORE than that stipulated in the POGA 1972; and it should be appreciated if indeed it is the case; as there are very few good companies who give more benefits than the MINIMUM as stipulated in any Act.
12th July 2013 From India, Delhi
I agree with your suggestions. However I have a doubt.
Is there any provision in the Payment of Gratuity Act 1972 to pay Gratuity for the period of service left ?
Regarding better terms of gratuity
Section 4(5) reads as " Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer"
Hence employer can give more gratuity than what is prescribed in the Act.
12th July 2013 From India, Madras
I guess Mr. Xaviers must have either solved his problem or is not interested in the valuable inputs offered by our esteemed colleagues. So you should take a call and declare this topic as closed.
No point in providing input when their is no acknowledgement of the same.
15th July 2013 From India, Mumbai
16th July 2013 From India, Madras
Thank you all for the valuable suggestions & making this topic so vibrant. As you all advised i had a discussion with the mgmt side & they are yet to say their final decision.. I\'m here everyday watching the feedbacks from your side..
16th July 2013 From India, Bangalore
I would like to inform you that please consult with his family member for this matter and ask for any post which is suitable to him or her in your company.this leads work satisfaction among all the staff of your company. we know that the employees are doing their jobs in the company for the shake of family future , but company also should stand for him to protect his family at the time of crises.
Gujarat Apollo Industries Ltd
31st July 2013 From India, Mumbai
I agree with Dhrumin, you should offer a job to his wife so that she can support her kids, any best suited profile for her which would move your company out of all these complications.
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31st July 2013 From India, Delhi