Gist of gazette notification enhancing EPF wage ceiling

                        Gist of gazette notification enhancing EPF wage ceiling

Labour & Employment Ministry vide notification dated 19th & 22nd august 2014 made certain important changes in the EPS scheme. The notifications are effective from 1st September 2014.

EPF SCHEME, 1952

1. Wage limit enhanced to Rs. 15,000 from Rs. 6500.

EPS, 1995

2. Minimum pension fixed to Rs. 1000 pm

3. Maximum pensionable salary will be Rs. 15,000 pm.

4. Pensionable salary shall be calculated on the basis of average monthly pay drawn during the contributory period of service in the span of 60 months instead of 12 months. 12 months has been replaced in the scheme mutatis mutandis.

5. Wherever employer and employee have opted to contribute on salary exceeding Rs. 6500 pm, such employer and employees will have to exercise a fresh option to contribute on salary exceeding Rs. 15000 pm. Fresh options is to be exercised with in six month.

6. In case the fresh option is not exercised, it shall be deemed that the employee has not opted in allowing contribution over wage ceiling and the contributions to employees’ Pension fund made above the wage ceiling in respect of member shall be diverted to the provident fund account of the member.

7. Where the employer and employee has opted to contribute over Rs. 15000, the government share of contribution @ 1.16% on the salary exceeding Rs. 15000 pm will be deducted from employees contribution.

8. Provision for contribution on higher salary is withdrawn i.e. above Rs. 15000. Hence no new option can be allowed to any new employee becoming member on or after 1st September, 2014 for deduction towards pension fund on wage exceeding Rs. 15000.

9. EPS will henceforth apply only to EPF members whose pay at time of becoming member is not more than Rs. 15000. The entire contribution of employer and employee shall remain in PF account and no diversion to EPS shall be made for all new PF members having salary more than 15,000 at the time of joining.

EDLI Scheme, 1976

10. The benefit under the scheme shall be further increased by 20 percent in addition to the benefit admissible under sub-paragraph (1), (2) or (3) of paragraph 22.

My Farewell at IMCL

I worked with Indusind Media and Communications Limited, a Hinduja group company (IMCL) for 2 years and 5 months. I relieved by the company at the closing of 11th March. My farewell speach is produced below:

Respected Banodhia saab, Sandeepji, Gupta jee, Saxena ji, Pramendraji and all colleagues,

When farewell time comes, only then one understands how attached one is with his organisation, but this a way, sooner or later every one has to come at this point. Today it's my turn.

Taking opportunity of this occassion, I would like to thank every one in whose asociation I came and picked the fragrance of one's specific personality. My memory goes back to my joining date when Anil sir was here, fortunately today also I met with him, who is school in himself. I am also a student of that school. today he is not with us in this organisation but I want to thank him.

Banodhia saab, an eminent personality, I feel like minnows to say anything about him. I am not even see his giant stature with my miniature view. I have always got shadow of his humble personality. He remained as best guide for me. Whenever I approached him, I received a wonderful response. I request him to be my polestar for direction and guidance for ever. I don't know how much time he can spare for me in future.

Sandeep jee, without whose support even it was not possible for me to work here. We worked in very close association, off course guidance of Mr. AM and Mr. Ahuja was there but without sandeep jee's support I couldn't ahve done the things I did. I don't know how many of the you are aware that He is an expert of Corporate law. I always picked knowledge stone from his knowledge park. I am very thankful to him.

I can not forget the support of finance department i received. Although legal and finance has very specific, hate and love,relationship, I never took panga from finance, factually no one can take such panga. We worked together very smoothly.
Recently new management has come, off course Gupta ji and Taneja saab are here as part of new management, i didn't get much opportunity to work with them. I wish them all the best. I would like to borrow the words of Kaifi Aazmi who is a better wordsmith:
बदल जाये अगर माली चमन होता नहीं खाली, बहारें फिर भी आती हैं, बहारें फिर भी आएँगी.
I wish them all the best again.

Last but not the least I want to add that, I am thankful to Bhawana ji and Anjali madam, whose continuous support I received in all my performance.

Thanks to IMCL, Thanks to all. I have to start new journey ahead, your good wishes are solicited.

COMPETITION ACT, 2002: BRIEF REVIEW

COMPETITION ACT , 2002



OBJECTIVE



Competition Act, 2002 is passed keeping in view of the economic development of the country with following objective:

(1) To prevent practices having adverse effect on competition,

(2) To promote and sustain competition in markets,

(3) To protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets,



GUIDING PRINCIPLES



The Competition Commission of India is being guided by the following principles in its approach to its work:



1. To be in sync with markets; have good understanding of market forces.

2. To minimize cost of compliance by enterprises, and cost of enforcement by Commission.

3. To maintain confidentiality of business information; to maintain transparency in Commission's own operations.

4. To be a professional body, equipped with requisite skills.

5. To maintain a consultative approach.



FUNCTIONS



1. CCI shall prohibit anti-competitive agreements and abuse of dominance, and regulate combinations (merger or amalgamation or acquisition) through a process of enquiry.



2. It shall give opinion on competition issues on a reference received from an authority established under any law (statutory authority)/Central Government.



3. CCI is also mandated to undertake competition advocacy, create public awareness and impart training on competition issues.



ENFORCEMENT

The enforcement provisions in the Competition Act relate to prohibition of anti-competitive agreements and abuse of dominant position, and also prevention of anti-competitive combinations.

Section (3): Anti competitive agreements

Section (4) Abuse of dominant power

Section (5): Combination

Section (6): Regulation of combinations

Section (3): Anti competitive agreements

Agreements which cause or are likely to cause appreciable adverse effect on competition in markets in India are anti-competitive and are void. While some anti-competitive agreements are presumed to cause appreciable adverse effect on competition, others are to be proved so by rule of reason.

Section (4) Abuse of dominant power

The provisions relating to abuse of dominant position require determination of dominance in the relevant market. The relevant market consists of the relevant product market and the relevant geographic market. The factors for determination of the relevant market as well as dominance are provided in the Act itself. Once dominance has been established, the conduct of an enterprise, which falls within any one of the five abuses, is prohibited.

Sections (5 & 6 ): Combination & Regulation of combinations

Combination includes merger, amalgamation and acquisition above the thresholds stated in the Act in terms of assets or turnover. Regulation of combinations is usually done ex ante, although the Commission has the power to investigate a combination even after it has taken effect. Combinations which cause or are likely to cause appreciable adverse effect on competition have to be prevented. The provisions relating to regulation of combinations are given in sections 5 and 6 of the Act.

NOTIFICATIONS



Though the act was passed in India in 2003, it could not be enforced. Competition Act is being notified in phases. The commission came into being on 28 February 2009 with appointment of the Chairman and Members of the Competition Commission of India vide notification dated 27-march-2009. Vide Notification dated 28th August 2009, Monopolies and Restrictive Trade Practices Act, 1969 (“the MRTP Act”) stands repealed and is replaced by the Competition Act, 2002, with effect from September 1, 2009. Anti competitive agreements (section 3) and Abuse of dominant power (Section 4) has already came into force on 20-5-09 vide notification dated 15-5-09. However Regulations with respect to combinations are still awaited to be notified.



REPEAL OF MRTP ACT, 1969



1. GOI vide Notification dated 28th August 2009, repealed the Monopolies and Restrictive Trade Practices Act, 1969 and the MRTP Act is replaced by the Competition Act, 2002, with effect from September 1, 2009. However as per amendment act, 2007 MRTP was to act as per provisions of repealed act. For 2 years from effective date of repeal with the condition that it will not hear any new case. On 14-October 2009 The President of India promulgated the competition (Amendment) Ordinance, 2009 and enforced the same with immediate effect. With this amendment MRTP Commission became defunct.



TRANSFER OF CASES FROM MRTP



The following transitional provisions would apply as provided in Section 66 of the Competition Act, 2002:-

1. Transfer of pending cases

a) Monopolistic or restrictive trade practice cases: All pending cases pertaining to monopolistic or restrictive trade practices, including cases having an element of unfair trade practice, shall stand transferred to the Competition Appellate Tribunal, which shall adjudicate such cases in accordance with the provisions of the repealed MRTP Act.

b) Unfair trade practice cases: All pending cases relating solely to unfair tradepractices shall stand transferred to the National Commission as constituted under the Consumer Protection Act, 1986, which may in turn transfer such cases to a StateCommission constituted under the said Act under circumstances it deems appropriate. These cases will be dealt with by them in accordance with the provisions of the Consumer Protection Act.

c) Cases relating to giving false or misleading facts disparaging the goods, services or trade of another person under the MRTP Act: All such pending cases shall be transferred to the Competition Appellate Tribunal which will be dealt in accordance with the provisions of repealed MRTP Act.

2. Investigations/proceedings undertaken by the Director General under the MRTP Act

a) Monopolistic/ restrictive trade practices will be transferred to the Competition Commission of India (CCI), who may conduct such investigations/ proceedings in any manner it deems appropriate.

b) Unfair trade practices will be transferred to the National Commission under the Consumer Protection) Act 1986.

c) Cases giving false or misleading facts disparaging the goods, services or trade of another person will be transferred to the CCI.



REMEDIES IN COMPETITION ACT.



Section 27 of the Act provides various remedies for restoring competition and penalizing the offenders in case of contravention of this law. They are –

- passing ‘cease and desist order’

- providing agreements having appreciable adverse effect on competition to be void

- imposing penalty upto 10% of the turnover or 3 times of cartelised profit, whichever is higher

- awarding compensation or damages as per Section 34

- directing modifications to agreements

- in case of combinations, they can be approved with or without modification or even be refused approval

- in case of dominant enterprise, order can recommend division as provided in Section 28 of the Act



AMENDING ACT & ORDINANCE:



2. The competition(Amendment) Act , 2007
3. The Competition(Amendment) Ordinance, 2009





References:

www.cci.gov.in

http://shubhamconsultants.blogspot.com

Posted on lawyersclubindia.com on 5-Feb-10

TDSAT: A JURISDICTION PROSPECTIVE

TDSAT: A JURISDICTION PROSPECTIVE



Until 1997 there was no specific system developed for the telecom disputes in India. Telecom disputes were subject to the same legal system as of any other disputes. However due to increasing teledensity and entrance of private players in telecom field in post 1994 periods, need of separate regulatory body arised. In 1997, a separate regulatory body "Telecom Regulatory Authority of India (TRAI)" was constituted through an Act of Parliament - "Telecommunication Regulatory Authority of India Act 1997". Apart from regulating licenses issued by the central government, TRAI was also vested with certain judicial authority to adjudicate and settle disputes. In 2000, the "Telecom Regulatory Authority of India Act, 1997" was amended by the "Telecom Regulatory Authority of India (Amendment) Act, 2000" wherein the adjudicator role of the TRAI was separated and assigned to separate body "Telecom Disputes Settlement and Appellate Tribunal (TDSAT)".



To understand the jurisdiction of telecom disputes we must understand the following questions:



Q: What is the Jurisdiction of TDSAT?



Section 14 of TRAI Act as amended in 2000 deals with jurisdiction clause of TDSAT and reads as follows:

Establishment of Appellate Tribunal - The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to –

(a) adjudicate any dispute –

(i) between a licensor and a licensee;

(ii) between two or more service providers;

(iii) between a service provider and a group of consumers;

(Proviso will be discussed later)



(b) hear and dispose of appeal against any direction, decision or order of the Authority under this Act.



Important definitions:



Licencee: “Licensee” means any person licensed under subsection (1) of section 4 of Indian Telegraph Act,1885 (13 of 1885) for providing specified public telecommunication services. [Section 2 (1)( e)]



Licensor: “Licensor” means the Central government or the telegraph authority who grants a licence under section 4 of the Indian telegraph act, 1885 (13 of 1885)[ Section 2 (1) (ea)]



Service provider: “Service provider” means the government as a service provider and includes a licensee.[ Section 2 (1) (j)]



This is pertinent to mention here that Indian telegraph act, 1885 and Indian Wireless Telegraphy Act, and 1933 are still two important pieces of legislation in telecom laws.

Hon’ble TDSAT has discussed meaning of “Any” in section 14 (a) of TRAI Act in Hathway Media Vision Private Limited v. M/s. Spider Cables (Petition No. 99(C) of 2005) and observed that: “In the TRAI Act the word ‘any’ in Section 14 has been used in a wider sense extending from one to all and ipso facto must include each and every dispute relating to telecommunication services between service providers. Of course “any” in the context of this Act cannot be given absurd meaning and one may have to limit its sweep in a given case.”



Hon’ble Supreme court of India in Union of India v. Tata Teleservices (Maharashtra) Limited (2007) 7 SCC 517 observed that The conspectus of the provisions of the Act clearly indicates that disputes between the licensee or licensor, between two or more service providers which takes in the Government and includes a licensee and between a service provider and a group of consumers are within the purview of the TDSAT. A plain reading of the relevant provisions of the Act in the light of the preamble to the Act and the Objects and Reasons for enacting the Act, indicates that disputes between the concerned parties, which would involve significant technical aspects, are to be determined by a specialized tribunal constituted for that purpose. There is also an ouster of jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter which the TDSAT is empowered by or under the Act to determine. The civil court also has no jurisdiction to grant an injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act.



In the same case Hon’ble court has further extended the the jurisdiction by stating that “It will be appropriate to understand the scope of Section 14(a)(i) of the Act and for that matter Section 14(a)(ii) of the Act also, as including those to whom licenses were intended to be issued and as taking in also disputes that commence on the tender or offer of a person being accepted. In other words, a dispute commencing with the acceptance of a tender leading to the possible issue of a licence and disputes arising out of the grant of licence even after the period has expired would all come within the purview of Section 14(a) of the Act. To put it differently, Section 14 takes within its sweep disputes following the issue of a Letter of Intent pre grant of actual licence as also disputes arising out of a licence granted between a quondam licensee and the licensor”.

Conclusively we can say that any dispute between two or more service providers are with in the exclusive jurisdiction of TDSAT. The word “Any” is to be construed in wider sense however it can not have an absurd meaning.



Q: Whether broadcasting and cable services are included in telecommunications services and comes within purview of TDSAT Jurisdiction?



Section 2(1)(k) of TRAI, Act 1997 specifically mentions that telecom service shall not include broadcasting services. However the proviso states that Central Government may notify other service to be telecommunication service including broadcasting service. In the similar language as proviso reads Section 11(1) (d) which deals with functions of TRAI authorizes Central Government to entrust other functions to TRAI. Department of Telecommunications vide Notification no. 39 [S.O. No. 44(E) and 45(E)] dated 9-1-2004 included the broadcasting and cable services in telecommunication services. Central Government under proviso of section 2(1) (k) and section 11(1) (d) made the regulation “The Telecommunication (Broadcasting and Cable Services) interconnection regulations, 2004 which includes broadcasting and cable services within the definition of Telecommunication services.



Thus now it is settled law that Broadcasting and cable services are covered within the meaning of telecommunication services and disputes thereof are subject matter of the TDSAT jurisdiction.



Q: Which department of government of India is authorized to issue license within section 4 of The Indian Telegraph Act, 1885?



The President of India under clause 3 of article 77 of Constitution made “Government of India (Allocation of Business) Rules 1961” to allocate the business of the Government of India. In the point no. 7 of the First schedule to the above said rules department of telecommunication is allocated to Ministry of Communications and Information technology and following subjects are distributed to DoT in point no. 10 of the second schedule to the above said rules:

Administration of laws with respect to any of the matters specified in this list, namely:-

(a) The Indian Telegraph Act, 1885 (13 of 1885);

(b) The Indian Wireless Telegraphy Act, 1933 (17 of 1933); and

(c) The Telecom Regulatory Authority of India Act, 1997 (24 of 1997).



Thus DoT under Ministry of Communications and Information technology is the body authorized to issue licence under section 4 of The Indian Telegraph Act, 1885.



Q: Is there any telecom disputes which are outside the purviews of TDSAT?



Proviso to Section 14(1) (a) expressly bars following disputes from the jurisdiction of TDSAT:

(A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969);

(B) the complaint of an individual consumer maintainable before a Consumer Dispute Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);

(C) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885 (13 of 1885);

Sub-section (1) of section 7B of the Indian Telegraph Act, 1885 reads as follows: Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.



Recently on September 1, 2009 Hon’ble Supreme court of India in General Manager, Telecom v. M. Krishnan & Anr observed that “In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred” Thus Proviso (B) of section 14(1) (a) has become redundant in view of this Judgment.

Posted on Lawyersclubindia.com on 6-Oct-09

Search of happiness-II

How can one attain state of happiness?

Happiness can be attained by training the mind and doing continuous practice for getting the attainment of the happiness. Initially practicing happiness will seem difficult but later on this will become matter of habit. Glimpse of sadness may visit you occasionally but that will subside soon and you will enjoy the eternal happiness that is bliss.

Here it is worth mentioning that , sadness/grief doesn’t devour the happiness in toto and happiness doesn’t substitute the sadness fully. Person feels both simultaneously. Just take an example a student is ill having fever and high body ache and he gets a news that he stood first in examination for he had put his heart and soul few months back. Will he feel happiness? Yes off course, he will. He will feel happiness with in flood of griefs. This is fact that one can feel sadness with in happiness and happiness with in sadness.

The quantity of sorrow and happiness decides actually, which one will be dominant and which one will be recessive. Again this is a subjective term as the act which will make one sad may not act similarly on another person, similarly the act which one will make someone happy may not act similarly on another parson. This depends upon the inner core of person how he perceives towards external stimuli.

Happiness attracts happiness. When you are happy happiness of whole world will come to you. When you are sad, sadness of whole world will visit you. This is why it is said that problem does not come alone (Dukh akale nahin atai). Take a brief example if your mind is calm, content you are happy, then you simply ignore small bad thing occurring to you, this will not raise your blood pressure as it does not make any significant effect upon you. If you are unhappy, you take note of every small negative thing occurring to you which makes you tired, frustrated and finally unhappier.

Hence there is no specific way to attain the happiness or there is no way which goes upto the home of happiness. You can attain happiness without any movement just by training the mind to receive the every thing happening to you happily, being the will of nature. The same thing is quoted in Gita as “Sukhe dukhe same Kritva, Labha alabhau Jaya Ajayau”. One can not treat happiness and sorrow as same until the mind is trained accordingly. Meaning thereby you can not change the events going in whole universe but you can change your self at least this is easier to change your self than changing whole universe. Happiness is scattered every where you have to prepare yourself to pick the Akshay Patra (A pot which always remains full) of happiness.

Search of happiness-I

What is happiness?

Defining "happiness' with in four corners of words is not possible. There are certain characteristics of happiness which may help one to understand the happiness. The meaning of happiness may vary person to person from time to time.

Happiness is a state of mind which may be attained internally but can not be achieved outwardly. Happiness requires no movement, no physical activity but training the mind by continuous practice. Happiness is the food of soul not of the body.

Happiness is not an absolute term it is always comparative. There is nothing in the world by attaining which every person will become happy, There is no place in world, by going where every person will get happiness. A poor boy may become happy by getting a broken toy thrown by rich boy. A person becomes happy by getting a job left by someone else. This shows happiness is neither in toy nor in job but it depends upon Individual’s mental status and physical circumstances. When your one set of desire is full filled you get momentary happiness which subsided by lapse of time. We may say these are glimpse of happiness not happiness in true sense.

Attainment will give you momentary happiness; fulfillment of a set of desire will provide only a glimpse of happiness. There is nothing in this world attaining which nothing lefts to attain. There is no desire, satisfaction of which will not followed by another desire.

We can try to understand this in some other way. There is desire/expectation fulfillment of which gives happiness.

DESIRE……………FULFILLMENT……………………HAPPINESS

When there is desire there is no happiness, when happiness comes after satisfaction of the same, we don’t feel the desire but happiness. Meaning thereby when there is desire, there is no happiness and when there is happiness there is no desire. Therefore Happiness is state of desirelessness. It is a state of contentment. It is a state of peace. It is a state of bliss.

Continued....... in next post