Correction of Date of Birth in Service Book

The general legal principle is that an employer can consider a claim for correction of date of birth of an employee, in his service records, if he prefers an application within a reasonable time from the date of joining into the service. As to what would constitute a reasonable time, various case laws suggest that it is a decision that has to be taken on a case to case basis, taking into account various factors such as the bona fides of the claimant, his/her conduct, whether he/she would have obtained an unintended advantage while securing employment were the corrected date of birth taken as the actual date of birth, whether the employee is estopped from claiming a different date as his date of birth and the prejudice that would be caused to his juniors in service through an acceptance of the claim.

In Kerala Government Service, correction of date of birth is governed by GO (P) No. 45/91/P&ARD dated 30/12/1991. According to the said government order, after 30/12/1991, the correction of date of birth if any needed in the case of a Government employee shall be made within five years of one’s entry into service. In the case of those who have already crossed this limit, one year time from 30/12/1991 is allowed, provided they apply before the two years period preceding retirement, reckoned with reference to the date of birth as recorded in the service book.

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Kerala Maternity Benefit Rules, 1964

A friend of mine asked me to send a copy of Kerala Maternity Benefit Rules, which according to him, is not available anywhere. So I’m uploading a scanned copy here, for everyone.

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Right to Service in Kerala Labour Department – Notification

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Contractual employees are entitled to same leave benefits as Regular Employees

The Delhi High Court in Sonia Gandhi v. Government of NCT of Delhi, held that contract appointed employees working in public sector undertakings are entitled to leave of all kinds at par with regular employees, including maternity and sick leave. In that case, the court was concerned with contractual employees working in various hospitals established by the Government of NCT of Delhi and the Municipal Corporation of Delhi, wherein there was large scale contract appointments. The court also highlighted that good governance would require the Government to ensure regular posts being sanctioned commensurate to the public need as it ill serves the interest of the society if requisite number of public posts are not sanctioned. In that case, the court also sanctioned equal wages at part with regular employees, and directed the government to frame a one-time regularisation scheme, to absorb the large number of contract labour working in government hospitals. 

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Medical professionals are not ‘workmen’

ImageBenefits under the Industrial Disputes Act, 1947 are available only to ‘workmen’. If one is a manager or a professional, he is outside the ambit of the act. In ESI Corporation Medical Officer’s Assoication v. ESI Corporation, the Supreme Court held that a medical professional treating patients and diagonsing diseases cannot be held to be a ‘workmen’ under Section 2(s) of the Industrial Disputes Act. The two judge bench consisting of KSP Radhakrishan and AK Sikri, therein drew a distinction between ‘occupation’ and profession’, and held that an occupation is a principal activity related to job, work or calling that earns regular wages for a person; and a profession on the other hand, requires extensive training, study and mastery of the subject, whether it is teaching students, providing legal advice or treating patients or diagnosing diseases. Hence, the court was of the opinion that professionals are not workman within the meaning of Section 2(s) of the ID Act.

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Prohibition of Night-Shifts for Women in Factories, held unconstitutional

Night shift Woman

The Gujarat High Court in Mahila Utkarsh Trust v. Union of India (SCA 2984/2012 decided on 13.12.2013), discussed the constitutional validity of Section 66(1)(b) of the Factories Act, 1948, which prohibits employment of women in factories between 7pm and 6am. The Court held that the said restriction is ultra vires Articles 14, 15, 16 and 19(1)(g) of the Constitution of India and infringed the fundamental rights of a female citizen. According to the court, instead of prohibiting women’s employment in factories during night sift, the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated. However, the Court held that it will be a condition precedent upon the employer to make adequate measures for the safety and security of the female employees, who work during night hours, including provisions for safe conveyance to and fro from the workplace.

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Gratuity Fund maintained with LIC’s premium linked policy – Employee entitled to receive only the statutory due, and not the due matured under policy.

Group Gratuity Schemes provided by LIC and other Fund Management Institutions are subscribed by many Employers to meet the gratuity obligation towards their employees. An interesting question that arose recently is whether an employee-on-superannuation is entitled to receive the entire amount accumulated under the Policy enrolled by his employer, or is he just entitled to the statutory amount prescribed under the Payment of Gratuity Act.
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The question has multi-dimensional issues since Section 4(5) of the Payment of Gratuity Act enables an employer to provide and its employees to have, benefits better than those provided under the Act. But most Group Gratuity Schemes are entered by the Employer alone with the Insurer, and they are normally not tri-parte agreements including the union/employees. Besides these Schemes are formulated in such a fashion that premium payable by the employer is linked to its statutory obligation. Therefore, even if on papers the matured amount is higher than the statutory due, the insurer need not transfer the excess amount matured to the insured/employer. Similarly, if the employer defaults payment of premiums, the insurer has no obligation to disburse gratuity due to the employees.

Therefore, what concludes from the above discussion is that employees are not party to Group Gratuity Schemes enrolled by Employers. Therefore, as rational consequence, the employees are entitled not entitled to the entire amount matured under policy, but only to what is statutorily due to them.  [See Mathew Korah v. Kaduthuruthy Urban Corporative Bank, 2013(4)KHC 497; Nedupuzha Service Cooperative Bank v. Rugmini, 2011 (2) KHC 880; Retnavalli v. Ambalapadu Service Cooperative Bank, 2005 KHC 988]

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