Labour Law & Hr Consultant
Harsh Kumar Mehta
Consultant In Labour Laws/hr
Asso.prof.(commerce & Management) Pg
Consultant In Legal Matters
Manager - Accounts
9th June 2015 From India, New Delhi
Since the affected person happened to be a salaried doctor in the said private psychiatry hospital, it is quite natural for the doubts to arise whether he could avail of the remedial measures, if any available under the Labour Laws for the alleged problems created by the management after accepting his resignation and whether he is eligible for any terminal benefits on account of his resignation as well.
(1) In the first place the said hospital is an establishment under the Kerala Shops and Commercial Establishments Act,1960 if it is situated in any place mentioned in Section 1(4) of the said Act. If so, the doctor is just a person employed therein to mainly render professional service of treatment of patients and as such he is an employee as per Sec.2(6) of the Act.Since this is a case of resignation, he is eligible only for cash benefit of the unavailed portion of Annual Leave with Wages at his credit.
(2) Therefore, irrespective of the fact whether your friend was employed there just as a Junior Doctor or as a Senior Medical Officer charged with certain professional/ supervisory/ administrative responsibilities, he is certainly eligible for and entitled to gratuity under the Payment of Gratuity Act,1972 on his termination of employment which happens to be that of resignation univocally accepted by the management. It is better that he engages the services of an Advocate well-versed in labour matters for completing the preliminary legal formalities like issuance of notice for gratuity, preparation of claim etc., and appearing on his behalf before the Controlling Authority under the P.G Act,1972.
(3). The cash part of monthly payment by the management seems to be a mutually agreed arrangement to evade the provisions of Income Tax Act applicable to both. Though the Pyment of Wages Act,1936 is applicable to the establishment, I presume that the individual's salary might be more than the maximum wages prescribed under the said Act for application purpose. That's why the management intelligently adopts the tactics of treating the payment as cash advance and recover the same to deter the individual from staking claim for his gratuity.No prudent employer will grant monthly cash advances to his employee continuously for a period of 13 years without recovering the earlier advance. Hence it partakes the nature of a Civil dispute and advise your friend to resist it accordingly.
9th June 2015 From India, Salem
Thank you very much for the opinions and suggestions. I conveyed all the messages to him and suggested to consult a good lawyer to tackle the issue.
Is there any time limit to give reply against the legal notice served on him by their lawyer. Can he go to the consumer court to sort out the issue.
10th June 2015 From India, Kozhikode
Sirs, Thank you very much for the suggestions and opinions.
10th June 2015 From India, Kozhikode
2. As suggested by seniors and experts earlier in this topic, I think, your friend may engage a good lawyer, get the reply of the legal notice so received prepared and send to the ex-employer alongwith copy of the same to their advocate, if any, from whom, the notice has been received.
10th June 2015 From India, Noida
He would be giving the reply in a day or day after discussing with the advocate. I am sure all the above valuable suggestions and opinions would help them to sort out the case.
Thanks a lot.
11th June 2015 From India, Kozhikode
1. what type of documents the Dr. signed when he received monthly cash payments, was it a cash Vr., whether any word saying the nature of payment as "Advance" mentioned in these Vrs.?
2. What are the terms & conditions of his apptt., whether there was any mention about these cash "advances" ?
3. Was he covered under the EPF act and any contribution was collected from his salary ? If so what happened to this Final settlement from EPF ?
4. No doubt, he is entitled to benefits legally available for which he should immediately file his applications in the prescribed forms under acknowledgement. If he is not getting the ackmt. he should send them under Regd.Post Ack.Due.
5. You can act as per the advice of your Advocate. If possible you should try to get a Caveat from the appropriate court. And/or file a suit for appropriate directions after due notice to the hospital. May be you should move the matter thru' your Professional Body like state Medical Council as well for their interference to strengthen your case.
12th June 2015 From India, Bangalore
The case is some what complicated. He has mentioned that
1. Out of total salary, major part went to his bank account and rest was given on signing a blank voucher.
2. While joining the hospital there was no formal medical set up what so ever.So that time no appointment order or other terms and conditions were talked about or followed. Initially total salary was given by hand as cash for the past few years major part went to bank. In the income tax return only amount send to the bank was mentioned.
3. no EPF was deducted.
Any way all the above suggestions and opinions would help him and his advocate to sort out the issue.
Thanks a lot.
16th June 2015 From India, Kozhikode
16th June 2015 From India, New Delhi