Hello saji
your above clarification removed the confusion and we both are on the same page. Thanks for clarifying and thanks to Ankita for her effort to clear the confusion.
B.Saikumar
HR & labour law advisor
From India, Mumbai
1899your above clarification removed the confusion and we both are on the same page. Thanks for clarifying and thanks to Ankita for her effort to clear the confusion.
B.Saikumar
HR & labour law advisor
From India, Mumbai
Dear Saikumar
I have gone through this thread with interest; and as in the past; I appreciate your interpretation.
However, I find your interpretation a bit narrow; and it appears as if the employer can wash his hands off, once an employee ceases to be on roll.
Allow me to elaborate. I have got certain questions, not necessarily specific to the posted query.
1. If the employee-employer relationship gets severed; does it mean the employer can deny any due payment for which the employee is eligible ??
For example;
If performance rewards for a particular month are calculated and given along with salary in the next month - say on 5th of next month. ; then if some employee separates on, say 30th/31st of that month (last working day of the month) and some separate on 2nd, 3rd and 4th of the next month.
Now, can all these employees (or ex-employees) can be denied that payment on the plea that since it will come in the 5th of the next month; and since they are no longer employees; they can not be paid that amount. AS IT IS MEANT ONLY FOR EMPLOYEES ??
My second question is -
Is it not true that there is a concept of ARREAR payments of salaries; and in some good companies including PSU's, employees have been paid arrears even 5-6 years after their separation ??
Q 3. - If an employee has earned any leave; then why can not salary be paid to him in lieu of leave so earned ??
Any answers on these ??
I think this is what happens when we don't consider that monthly rate of salary is one that is "spread-over" the month; and start thinking in terms of "weekly wages" and "concept of sandwich leave" which is prevalent in the US and West.
Trust me, an HR who is well versed with the Indian HR system and that prevalent in PSUs or big private sector companies; will hardly take a second to come out of the dilemma posed in this particular thread.
Warm regards.
From India, Delhi
I have gone through this thread with interest; and as in the past; I appreciate your interpretation.
However, I find your interpretation a bit narrow; and it appears as if the employer can wash his hands off, once an employee ceases to be on roll.
Allow me to elaborate. I have got certain questions, not necessarily specific to the posted query.
1. If the employee-employer relationship gets severed; does it mean the employer can deny any due payment for which the employee is eligible ??
For example;
If performance rewards for a particular month are calculated and given along with salary in the next month - say on 5th of next month. ; then if some employee separates on, say 30th/31st of that month (last working day of the month) and some separate on 2nd, 3rd and 4th of the next month.
Now, can all these employees (or ex-employees) can be denied that payment on the plea that since it will come in the 5th of the next month; and since they are no longer employees; they can not be paid that amount. AS IT IS MEANT ONLY FOR EMPLOYEES ??
My second question is -
Is it not true that there is a concept of ARREAR payments of salaries; and in some good companies including PSU's, employees have been paid arrears even 5-6 years after their separation ??
Q 3. - If an employee has earned any leave; then why can not salary be paid to him in lieu of leave so earned ??
Any answers on these ??
I think this is what happens when we don't consider that monthly rate of salary is one that is "spread-over" the month; and start thinking in terms of "weekly wages" and "concept of sandwich leave" which is prevalent in the US and West.
Trust me, an HR who is well versed with the Indian HR system and that prevalent in PSUs or big private sector companies; will hardly take a second to come out of the dilemma posed in this particular thread.
Warm regards.
From India, Delhi
Dear Rajkumar
It appears Iam misunderstood.If one closely goes through my interpretation, it does no where deny any right to an ex-employee to claim any benefit that would have accrued to him during the existence of employee-employer relationship or during his tenure as an employee..An ex-employee is very well entitled to claim all those rights and benefits that would have accrued to him during his employment even after he left the employment.What I said is that an ex-employee cannot claim any right or benefit that accrues to a serving employee but not those who left employment.
For example, in the case of Prashottambhai Keshavbhai Goyani's case, 2013 LLR 954(Guj.HC), certain employees of a bank on their retirement got paid gratuity computed at acertain rate stipulated under the Gratuity Scheme, prevailing at the time of their retirement..After their retirement, the bank entered into settlement on gratuity enhancing the rate at which gratuity is to be computed in respect of the serving employees. The retired employees claimed the difference in gratuity contending that they would be entitled to gartuity at the enhanced rate wunder the settlement. The HIgh Court however turned down their claim holding that the revised benfit of gratuity under the settlement is applicable only to serving employees but not to retired employees.
In the instant case, the weekly off is admissible only to an "employee" either under relevant statutes or under Standing orders/servcie rules, thereby mandating that a person to be entitled to the benefit of a weekly off,shall remain an employee on the date of the weekly off.This is a technical interpretation in tune with principles of administration and law.
In nutshell, an ex-employee does not loose any right to any benefit that would have accrued to him during his employment but not benfits that accrue to only serving employees after he left employment.In the instant acse the other employees who contnued in employment after he left employment, would very well enjoy the weekly off.
Of course, Iam not against any employer granting the benfit of weekly off as a good will gesture.
Hope this makes myself understood on the issue.
B.Saikumar
From India, Mumbai
It appears Iam misunderstood.If one closely goes through my interpretation, it does no where deny any right to an ex-employee to claim any benefit that would have accrued to him during the existence of employee-employer relationship or during his tenure as an employee..An ex-employee is very well entitled to claim all those rights and benefits that would have accrued to him during his employment even after he left the employment.What I said is that an ex-employee cannot claim any right or benefit that accrues to a serving employee but not those who left employment.
For example, in the case of Prashottambhai Keshavbhai Goyani's case, 2013 LLR 954(Guj.HC), certain employees of a bank on their retirement got paid gratuity computed at acertain rate stipulated under the Gratuity Scheme, prevailing at the time of their retirement..After their retirement, the bank entered into settlement on gratuity enhancing the rate at which gratuity is to be computed in respect of the serving employees. The retired employees claimed the difference in gratuity contending that they would be entitled to gartuity at the enhanced rate wunder the settlement. The HIgh Court however turned down their claim holding that the revised benfit of gratuity under the settlement is applicable only to serving employees but not to retired employees.
In the instant case, the weekly off is admissible only to an "employee" either under relevant statutes or under Standing orders/servcie rules, thereby mandating that a person to be entitled to the benefit of a weekly off,shall remain an employee on the date of the weekly off.This is a technical interpretation in tune with principles of administration and law.
In nutshell, an ex-employee does not loose any right to any benefit that would have accrued to him during his employment but not benfits that accrue to only serving employees after he left employment.In the instant acse the other employees who contnued in employment after he left employment, would very well enjoy the weekly off.
Of course, Iam not against any employer granting the benfit of weekly off as a good will gesture.
Hope this makes myself understood on the issue.
B.Saikumar
From India, Mumbai
Dear Saikumar
Thanks for this response - it is thoroughly informative and useful.
You are correct to say, with reference to your earlier comments; that you were mis-understood.
The questions I put forward in my post, was to arouse an spirit of enquiry and not to contradict your conclusion (which is absolutely correct).
I have appreciated and agreed with your conclusion in the earlier posts.
However, I was not convinced with the logic that were put earlier - that an ex-employee is not eligible/entitled for benefits accrued while he worked.
In fact, my way of looking at the problem was entirely different !!
A situation has been posed. then it has been un-necessarily complicated by putting forward theories of weekly-offs and entitlement etc.
Why should the matter be looked at all in the light of the Concept of Weekly Wages or weekly entitlement ??
By throwing in these irrelevant variables; the issue gets un-necessarily complicated and the mind gets clouded.
In my opinion, instead of getting into these newly- "imported" concept; if we go by the traditional aspect of salary administration and system; there is absolutely no dispute or complication.
According to the established practices of Personnel Administration (HRM) in India; if a person separates on 18th, he will get his salary upto the 18th; if he separates on 19th, then he will get his salary upto 19th; if it is on 20th, he will get salary upto the 20th... and so on and so forth.
This has been going on faultlessly for decades in Indian industries. You can verify from any veteran HR professional !!!
This is exactly what you also concluded. A person separating on 19th will get salary upto 19th of the month.
(any reward, award or incentive or other payables can be given later on as arrears.)
So, in fact, if you see, we both are saying the same thing. !!!
While you are looking at it from the legal angle; I am looking at it from the angle of well-established system and procedure of salary administration.
Why un-necessarily introduce the concept of days of week or weekly wages or whether to include or exclude the weekly off. This kind of system has come after the intoduction of 5-days week, concept of saandwich leave which stipulates that if a person is on leave on saturday or monday then he loses the salary of 3 days which includes sunday; etc. etc.
The tried, tested and established system says - The DATE of separation (and not the DAY of the week of separation( is important.
Thus there is no ambiguity here.
If a person is separating on 19th; he will get salary upto 19th; (he can not get the salary for 20th;) irrespective of whether 19th is a Monday or Saturday.
Hope the above help in simplifying the issue.
Warm regards.
From India, Delhi
Thanks for this response - it is thoroughly informative and useful.
You are correct to say, with reference to your earlier comments; that you were mis-understood.
The questions I put forward in my post, was to arouse an spirit of enquiry and not to contradict your conclusion (which is absolutely correct).
I have appreciated and agreed with your conclusion in the earlier posts.
However, I was not convinced with the logic that were put earlier - that an ex-employee is not eligible/entitled for benefits accrued while he worked.
In fact, my way of looking at the problem was entirely different !!
A situation has been posed. then it has been un-necessarily complicated by putting forward theories of weekly-offs and entitlement etc.
Why should the matter be looked at all in the light of the Concept of Weekly Wages or weekly entitlement ??
By throwing in these irrelevant variables; the issue gets un-necessarily complicated and the mind gets clouded.
In my opinion, instead of getting into these newly- "imported" concept; if we go by the traditional aspect of salary administration and system; there is absolutely no dispute or complication.
According to the established practices of Personnel Administration (HRM) in India; if a person separates on 18th, he will get his salary upto the 18th; if he separates on 19th, then he will get his salary upto 19th; if it is on 20th, he will get salary upto the 20th... and so on and so forth.
This has been going on faultlessly for decades in Indian industries. You can verify from any veteran HR professional !!!
This is exactly what you also concluded. A person separating on 19th will get salary upto 19th of the month.
(any reward, award or incentive or other payables can be given later on as arrears.)
So, in fact, if you see, we both are saying the same thing. !!!
While you are looking at it from the legal angle; I am looking at it from the angle of well-established system and procedure of salary administration.
Why un-necessarily introduce the concept of days of week or weekly wages or whether to include or exclude the weekly off. This kind of system has come after the intoduction of 5-days week, concept of saandwich leave which stipulates that if a person is on leave on saturday or monday then he loses the salary of 3 days which includes sunday; etc. etc.
The tried, tested and established system says - The DATE of separation (and not the DAY of the week of separation( is important.
Thus there is no ambiguity here.
If a person is separating on 19th; he will get salary upto 19th; (he can not get the salary for 20th;) irrespective of whether 19th is a Monday or Saturday.
Hope the above help in simplifying the issue.
Warm regards.
From India, Delhi
Dear Rajkumar
I agree with you. One should confine oneself to basics in administration to avoid complicating a subject. The basics in the instant case is an employee gets salary till he works in the establsihment.Even the law takes into consideration these established principles,customs and usages to interpret a situation,creating a dilemma in such a way as to ensure justice and fairness on an even keel to the parties concerned in such situation.Nevertheless a query like this generates a discussion to clear confusions in the minds of junior HRs or freshers who do not have proper understanding of these concepts.Thanks for your discussion provoking some thoughts on the issue.
B.Saikumar
From India, Mumbai
I agree with you. One should confine oneself to basics in administration to avoid complicating a subject. The basics in the instant case is an employee gets salary till he works in the establsihment.Even the law takes into consideration these established principles,customs and usages to interpret a situation,creating a dilemma in such a way as to ensure justice and fairness on an even keel to the parties concerned in such situation.Nevertheless a query like this generates a discussion to clear confusions in the minds of junior HRs or freshers who do not have proper understanding of these concepts.Thanks for your discussion provoking some thoughts on the issue.
B.Saikumar
From India, Mumbai
The discussion indeed brought a lot of light on what to do when there are dues / arrers in payment to be done to employee by just a small period.
For the concern that Raj sir shared, would also like to share an experience.
I was interning with a firm (I am unsure if I am allowed to name the company) and we had a function to celebrate the long service of employees wherein we were to reward and recognise all the employees who served a minimum of 5 years with us. This function takes place only once in three years or so. So all those employees who had left in the past 3 years (after the last function) but had completed their long term service and had not been recognised last event were called, though they were currently not on company's roll and working elsewhere.
I was so touched with this gesture of the company.
My HR (who also was my project guide) said, it is very necessary to motivate people and we can't do everything to keep them motivated. But if our small gestures and act can help them to be motivated in their life (wherever they are) they'd bless us which counts a lot.
Raj sir, your question reminded me of this incident of my life and I found myself lucky to have witnessed it...
From India, Mumbai
For the concern that Raj sir shared, would also like to share an experience.
I was interning with a firm (I am unsure if I am allowed to name the company) and we had a function to celebrate the long service of employees wherein we were to reward and recognise all the employees who served a minimum of 5 years with us. This function takes place only once in three years or so. So all those employees who had left in the past 3 years (after the last function) but had completed their long term service and had not been recognised last event were called, though they were currently not on company's roll and working elsewhere.
I was so touched with this gesture of the company.
My HR (who also was my project guide) said, it is very necessary to motivate people and we can't do everything to keep them motivated. But if our small gestures and act can help them to be motivated in their life (wherever they are) they'd bless us which counts a lot.
Raj sir, your question reminded me of this incident of my life and I found myself lucky to have witnessed it...
From India, Mumbai
Ankita
There is a saying that "out of sight -out of mind". It arose out of the general human tendency, more so in work life, to forget employees who left the servcie despite their contributions to the organisation. At a time where even serving employees are not properly recognised or treated, it is really a magnanimous gersture on the part of the organisation which you referred, to remeber all those employees who left in the past three years and facilitate them.It is a commendable way of repaying the arrears of respect and affction which the organisation believes it owes to it's ex-employees.Here only the employer-employee realtionship is svered but the human to human relationship contnues.
Thanks for sharing your experience.
B.Saikumar
HR & Labour Law advisor
From India, Mumbai
There is a saying that "out of sight -out of mind". It arose out of the general human tendency, more so in work life, to forget employees who left the servcie despite their contributions to the organisation. At a time where even serving employees are not properly recognised or treated, it is really a magnanimous gersture on the part of the organisation which you referred, to remeber all those employees who left in the past three years and facilitate them.It is a commendable way of repaying the arrears of respect and affction which the organisation believes it owes to it's ex-employees.Here only the employer-employee realtionship is svered but the human to human relationship contnues.
Thanks for sharing your experience.
B.Saikumar
HR & Labour Law advisor
From India, Mumbai
Dear B.Saikumar,
I have carefully read your posts and I am particularly referring to the yesterday's post mentioning the case of Prashottambhai Keshavbhai Goyani's case, 2013 LLR 954(Guj.HC), Frankly this case has no relevance and application to the question in hand.
1. In Goyani's case, the past employees had claimed certain benefits such as enhanced gratuity. The question in this case was whether the enhancement so agreed is prospective in nature or has a retrospective application. The benefits were prospective in nature and as such, the claim of past employees was rejected. It was not rejected because they were past employees. In short, had the agreement made in retrospective effect, these past employees would have become entitled to the benefits. The enlarged definition of employee under Payment of Gratuity Act now covers "Teacher" and due to its retrospective effect, past teachers can claim the gratuity. So it is not that past employees cannot claim any benefit. .
2. Under the above backdrop, how the question whether a Sunday is to be considered or not for calculating salary is connected to "past employee issue" ? Since, off-days are considered for payment and when one works for 6 days in a week, obviously Sunday of that week is payable. His service stands terminated on Saturday does not deprive him of salary of adjoining Sunday.
This was just to clarify the position and nothing to lessen you.
With regards,
Adv. K. H. Kulkarni
From India, Kolhapur
I have carefully read your posts and I am particularly referring to the yesterday's post mentioning the case of Prashottambhai Keshavbhai Goyani's case, 2013 LLR 954(Guj.HC), Frankly this case has no relevance and application to the question in hand.
1. In Goyani's case, the past employees had claimed certain benefits such as enhanced gratuity. The question in this case was whether the enhancement so agreed is prospective in nature or has a retrospective application. The benefits were prospective in nature and as such, the claim of past employees was rejected. It was not rejected because they were past employees. In short, had the agreement made in retrospective effect, these past employees would have become entitled to the benefits. The enlarged definition of employee under Payment of Gratuity Act now covers "Teacher" and due to its retrospective effect, past teachers can claim the gratuity. So it is not that past employees cannot claim any benefit. .
2. Under the above backdrop, how the question whether a Sunday is to be considered or not for calculating salary is connected to "past employee issue" ? Since, off-days are considered for payment and when one works for 6 days in a week, obviously Sunday of that week is payable. His service stands terminated on Saturday does not deprive him of salary of adjoining Sunday.
This was just to clarify the position and nothing to lessen you.
With regards,
Adv. K. H. Kulkarni
From India, Kolhapur
Dear Kishore kulkarni
Thanks for your response. It is nice that you have brought up the issue of relevance of Goyani’s case. At the outset, I would like to clarify that I did not say anywhere in my post that the enhanced gratuity was denied to the ex-employees because they were past employees. What I said was that the claim of the retired employees in Goyani’s case was held inadmissible to them because the same was applicable to the serving employees but not to retired employees. There is subtle difference between the two statements.
Secondly, I cited the case of Goyani more in the context of the examples quoted and queries raised by the learned member Mr.Rajkumar Hansdah in his post than in the context of ‘weekly off’ to be admissible to an ex-employee. In my reply to Mr. Rajkumar Hansadah in the context of his post, I said that an ex-employee cannot be deprived of his right to a benefit in every case and explaining the circumstances under which an ex-employee is entitled to claim a benefit even after he leaves employment, I said that an ex-employee can claim a benefit, if it accrued to him during his employment. It is in this context, I cited Goyani’s acse.
Now limiting myself to the issue of relevance of Goyani’s acse, I take the help of your own observation on the issue in your reply post to substantiate it’s relevance. You have stated that had the settlement been retrospective in it’s application, the retired employees too would have got the benefit of the enhanced gratuity. Now I would say that had the settlement been retrospective in it’s application, the benefit of enhanced gratuity would have been deemed to have accrued to the retired employees during their employment and they would have been entitled to the enhanced gratuity even after their retirement. This is precisely what I said in my reply to Mr. Rajkumar Hansdah and that’s how the Goyani’s case is relevant. . In other words what Goyani’s case coveys is that any benefit that accrues after an employee leaves the service and is applicable only to serving employees cannot be claimed by an ex-employee.
So far as the admissibility of ‘weekly off ‘ to an ex-employee is concerned, my line of interpretation is on a different footing which I made abundantly clear in my posts. Even at the risk of repetition, I would like to say once again that the concept of ‘weekly off’ shall not be understood solely from the context of entitlement of an employee to wages on that day but from the rationale and spirit underlying such concept. The concept of ‘weekly off’ is primarily meant to enable an employee a day’s rest after six days of hectic work but without depriving him of wages for the said day which is only secondary so that he turns up for work for the next six days thoroughly rejuvenated. Therefore the concept implies that a person shall enjoy rest and remain in employment to work further.
If, for example, an employee expires on Saturday due to natural causes after reaching home from his work place, then whether the diseased employee would be granted a ‘weekly off’ or whether his legal heirs would be granted ‘weekly off’ on Sunday. However assuming in Goyani’s case that the benefit of enhanced gratuity was made applicable with retrospective effect and one of the retired employees expired , his legal heirs would have been entitled to claim the benefit.
The precise point I would like to make is that one cannot use the same yardstick and logic to judge every case and each case has it’s own logic and rationale which needs to be applied in that case.
Hope I have made myself understood
B.Saikumar
HR & Labour Law advisor
From India, Mumbai
Thanks for your response. It is nice that you have brought up the issue of relevance of Goyani’s case. At the outset, I would like to clarify that I did not say anywhere in my post that the enhanced gratuity was denied to the ex-employees because they were past employees. What I said was that the claim of the retired employees in Goyani’s case was held inadmissible to them because the same was applicable to the serving employees but not to retired employees. There is subtle difference between the two statements.
Secondly, I cited the case of Goyani more in the context of the examples quoted and queries raised by the learned member Mr.Rajkumar Hansdah in his post than in the context of ‘weekly off’ to be admissible to an ex-employee. In my reply to Mr. Rajkumar Hansadah in the context of his post, I said that an ex-employee cannot be deprived of his right to a benefit in every case and explaining the circumstances under which an ex-employee is entitled to claim a benefit even after he leaves employment, I said that an ex-employee can claim a benefit, if it accrued to him during his employment. It is in this context, I cited Goyani’s acse.
Now limiting myself to the issue of relevance of Goyani’s acse, I take the help of your own observation on the issue in your reply post to substantiate it’s relevance. You have stated that had the settlement been retrospective in it’s application, the retired employees too would have got the benefit of the enhanced gratuity. Now I would say that had the settlement been retrospective in it’s application, the benefit of enhanced gratuity would have been deemed to have accrued to the retired employees during their employment and they would have been entitled to the enhanced gratuity even after their retirement. This is precisely what I said in my reply to Mr. Rajkumar Hansdah and that’s how the Goyani’s case is relevant. . In other words what Goyani’s case coveys is that any benefit that accrues after an employee leaves the service and is applicable only to serving employees cannot be claimed by an ex-employee.
So far as the admissibility of ‘weekly off ‘ to an ex-employee is concerned, my line of interpretation is on a different footing which I made abundantly clear in my posts. Even at the risk of repetition, I would like to say once again that the concept of ‘weekly off’ shall not be understood solely from the context of entitlement of an employee to wages on that day but from the rationale and spirit underlying such concept. The concept of ‘weekly off’ is primarily meant to enable an employee a day’s rest after six days of hectic work but without depriving him of wages for the said day which is only secondary so that he turns up for work for the next six days thoroughly rejuvenated. Therefore the concept implies that a person shall enjoy rest and remain in employment to work further.
If, for example, an employee expires on Saturday due to natural causes after reaching home from his work place, then whether the diseased employee would be granted a ‘weekly off’ or whether his legal heirs would be granted ‘weekly off’ on Sunday. However assuming in Goyani’s case that the benefit of enhanced gratuity was made applicable with retrospective effect and one of the retired employees expired , his legal heirs would have been entitled to claim the benefit.
The precise point I would like to make is that one cannot use the same yardstick and logic to judge every case and each case has it’s own logic and rationale which needs to be applied in that case.
Hope I have made myself understood
B.Saikumar
HR & Labour Law advisor
From India, Mumbai
Dear Shri. B. Saikumar,
Thank you for the elaborate reply and for your perception of the case. The entire discussion was really enjoyable. One can just see how many finer points and angles an issue can have. I will be always glad to receive your comments and analysis for the benefit of all of us.
With Warm Regards,
Adv. K. H. Kulkarni
From India, Kolhapur
Thank you for the elaborate reply and for your perception of the case. The entire discussion was really enjoyable. One can just see how many finer points and angles an issue can have. I will be always glad to receive your comments and analysis for the benefit of all of us.
With Warm Regards,
Adv. K. H. Kulkarni
From India, Kolhapur
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SALARY SHEET CALCULATION.xls
Salary calculation.doc