Umakanthan53
Labour Law & Hr Consultant
Harsh Kumar Mehta
Consultant In Labour Laws/hr
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Asso.prof.(commerce & Management) Pg
Sushilkluthra@gmail.com
Consultant In Legal Matters
Menonopp
Manager - Accounts

Thread Started by #menonopp

One of my friend is a doctor and was working with a Psychiatric hospital governed by private people for the past 13 years as a full time doctor in Kerala. He was getting the remuneration partly through bank and partly in cash. He has decided to quit and resigned from the job. They accepted the resignation and given nothing for the last 13 years service and withhold the last month salary. His remuneration was paying as salary and income tax deducted as per law and not as a professional fee.

Now the hospital has cheated him and asked the doctor to pay back the amount he was getting every month in cash and treated as advance in their books. Also they have claimed an outstanding amount of a patient from the name doctor and sent a legal notice to him.

Please advise if he has any chances to get the gratuity for the last 13 years, earned leave salary, bonus etc and how to counter the legal notice they served on the doctor.

Sirs, I request the team members help to to get the genuine compensation to him. All we know the mod us of ope-randy of the most of the private organizations who makes life miserable of their employees once they resigns from the job.

May I know the rules of payment of annual leave, gratuity, bonus etc to a doctor by profession and working as full time employee of the organization.
9th June 2015 From India, Kozhikode
File a civil suit for declaration that Doctor Saheb was employee of the Hospital and mandatory injunction to get relieving letter and seek prayer for interim mandatory injunction. Also seek recovery of dues other than statutory dues which you can seek from statutory authorities without payment of court fees. Send a legal notice that criminal prosecution will be initiated against the employer for cheating and forgery of records to cause wrongful loss to Doctor saheb.
Thanks
Sushil
9th June 2015 From India, New Delhi
Dear Menon,

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
Dear Sirs,
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
Sir, Hospital management is harassing the employee who worked sincerely for them for last 13 years and it happens in the family run businesses. They are getting the firm registered under trust act and charging highly the patients who comes for treatment. One side they are cheating the government by getting the income tax exemptions as applicable to trust and the other side sucking the blood of the employees.
Sirs, Thank you very much for the suggestions and opinions.
menonopp
10th June 2015 From India, Kozhikode
Sir I have passed the valuable suggestions and opinions to him.
Hope he would be able to tackle the case with a good advocate. Please also suggest whom should he send the reply to the advocate or to the firm.
Thanks a lot.
regards
menonopp
10th June 2015 From India, Kozhikode
1. Sir, in my opinion, your Doctor friend has himself committed mistake by "getting the remuneration partly through bank and partly in cash" as mentioned by you. The employees and officers must be vigilant towards their rights as per various labour laws viz. Payment of Wages Act etc. and accordingly it is required to be probed that the amount so received in cash was actually "wages" and not any type of advance.
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
Sir, I shall convey the message to him. Some body telling that a doctor by profession cannot treat as employee and is not eligible for the benefits entitled to an employee. Could any body clarify the same.
regards,
menonopp
10th June 2015 From India, Kozhikode
Sir I have passed the valuable suggestions and opinions to him.
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.
regards
menonopp
11th June 2015 From India, Kozhikode
No doubt the Dr.friend is a Professional, but doesn't mean he is not an employee of the hospital which is an 'Establishment(shop)' under the Kerala Shops & Commercial Estts.Act.1960. Other labour laws also applicable to the hospital. For clarity, could you check and confirm -
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
Dear Sirs,
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.
menonopp
16th June 2015 From India, Kozhikode
Despite all those shortcomings, he is governed by Shops and Establishment Act and the terms and conditions of an employee stated therein. If he is covered by EPF provisions then despite non deduction or non contribution by employer, he will be entitled to EPF dues and he will also be entitled to gratuity dues.
Thanks
Sushil
16th June 2015 From India, New Delhi
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