Introduction

International Volunteer Day - December 5

"Best way to find yourself is to loose yourself in the service of others" - Mahatma Gandhi

In 1985, the United Nations by Resolution 40/212 designated December 5 of every year as the International Volunteer Day (IVD). Throughout history voluntarism had been the defining force behind most of the remarkable human achievements specially in the field of religion and art. Greatest movements of temperance, self reliance and humanitarian service were pioneered and led by volunteers. Voluntarism is also considered the utmost exercise of democracy as only voters in democracy once in five or six years but when you volunteer, you vote, every day in the service of the community or in which you render service.

Voluntarism has been defined by many of the great thinkers in human history. Winston Churchill famously stated that "you make a living by what you get; you make a life from what you give" Another thinker poignantly called 'Voluntarism' as "love in motion". The technical definition of voluntarism, which includes all the nuances, reads "Voluntarism is the willingness of people to work on behalf of others without being motivated by financial or material gain". The United Nations which is the leading organization that promotes global voluntarism through UN volunteer program described "Voluntarism" as a fundamental source of community strength resilience, solidarity and social connection - UN Secretary General, Ban Ki-Moon.

In Sri Lanka from ancient times, voluntarism has been a strong pillar of her cultural growth. An agricultural society with its unique irrigation system was sustained by the volunteers mutually helping and maintaining the numerous irrigation works. The Buddhist and later Hindu edifices which adorns every part of the island were the efforts of volunteer devotees.

Internationally in addition to UN Volunteer programmes, the International Red Cross Movement and the global Volunteer Service Overseas (VSO) and World Scout Movement which embraces students in all parts of the globe should be mentioned.

S.S. Wijeratne

Legal Empowerment Volunteers

The Legal Aid Commission would be launching a legal empowerment volunteer programme in Sri Lanka with the participation of UNV VSO and VOICE next week to provide opportunity for University Undergraduates and Law College interns to work in seven selected Legal Aid Centres in Anuradhapura, Batticaloa, Ratnapura, Balapitiya, Chilaw, Kandy and Colombo.

These volunteers would render assistance in legal empowerment of children, persons with disabilities, women, elders and other marginalized groups.

The Legal Aid Commission with its international volunteer partners appeal to the public to dedicate December 5 the International Volunteer Day to volunteer to combat poverty, hunger disease, illiteracy environmental degradation and discrimination against women".

Questions and Answers

Payment of Gratuity and basis of computation

Question: I am a resident of Jaela and was working in a reputed Company where there are over 150 employees. According to my letter of appointment I am entitled to work until I reach 60 years. I reached 60 years about six months ago after putting in 30 years of service. After my retirement I have withdrawn my private provident fund and the Employees' Trust Fund. I have been writing to my Employer for my gratuity. However, the Company has not responded to any of my letters. In the circumstances, please let me know whether -

(a) I am entitled to my gratuity

(b) If so, what is the basis of computation

(c) Since my employer is not responding to any of my letters what are the steps that I should take to claim my gratuity.

J.Candappa Kotahena

Answer: (a) Since you have worked for over five completed years, you are entitled for your gratuity in terms of the Payment of Gratuity Act No.12 of 1983. In terms of the said Act the Employer should pay your gratuity within 30 days from the date of termination.

(b) Gratuity is computed on the last salary drawn by the employee.

1/2 months salary into the number of years of service put in by the employee.

(c) If the employer is not responding to you, you should lodge a complaint with the Commissioner of Labour against your Employer. The Commissioner of Labour will thereafter after inquiry direct the Employer to deposit the amount due to you with him so that you could withdraw the same. If the Employer fails to comply with the directions of the Commissioner of Labour, the Commissioner of Labour will institute legal proceedings against the Employer in the Magistrate's Court to recover the amount due as gratuity.

Sri Lankan Citizenship

Question: My son and daughter-in-law are both Sri Lankans living in France on work permit. Now they have a baby of a few months. Can they obtain citizenship for the child and what is the procedure? Your answer would be greatly appreciated.

J.Soysa Kawdnana

Answer: Since the child was born in a foreign country, he/she is not entitled to Sri Lankan Citizenship. If the child needs Sri Lankan Citizenship, you have to apply for a Citizenship Certificate through the Department of Immigration and Emigration, Citizenship Unit in Sri Lanka. In this connection you have to inform the Sri Lankan Embassy in France that you are a Sri Lankan and your child was born in France. Then they will issue you with a Citizenship Certificate. The following documents will be required to obtain Sri Lankan Citizenship Certificate:-

(a) Birth Certificate issued by the Sri Lankan Embassy/Consular in France.

(b) Applicant's Birth Certificate (mother/father)

(c) Marriage Certificate of parents.

(d) Parents' passports at the time of birth of the child.

(e) Declaration of the Applicant stating that he/she has no Citizenship of any other country except Sri Lanka.

(f) Charges payable. If the Citizenship certificate is applied within one year from the date of birth of the child, the fee payable is Rs. 1,000. For delay of every one year Rs. 500. Citizenship Certificate could be applied only up to the age of 21 years of the child.

We would therefore advice you to apply for your child's citizenship within one year from the date of birth of your child.

Percentage of surcharge on EPF

Question: I am aware that if the Employer defaults in the payment of gratuity to an employee for over one year, the Employer will have to pay the employee in addition to the gratuity a surcharge of a certain percentage. I am not sure whether it is 30% or 50% of the gratuity payable.

Please let me know the correct percentage and whether the same principle applies in the case of Employees' Provident Fund?

P.Goonetilleke Piliyandala

Answer: In the case of default in the payment of gratuity to an employee for over one year, the employer will have to pay the employee in addition to the gratuity a surcharge of 50% and not 30%.

In the case of EPF, if the Employer fails to contribute towards the EPF exceeding one year, the employer will be directed to pay 50% as surcharge. Unlike in the case of gratuity, the employee will not entitle to the full surcharge of 50%. The employee will be entitled to a percentage of the surcharge determined by the Monetary Board of the Central Bank.

Entitlement of gratuity

Question: I want to know whether - permanent, temporary, casual, contract, on assignment, on piece rate entitles to gratuity within the meaning of 'workman' as defined under Section 5.(1) of the Payment of Gratuity Act No.12 of 1983.

Your early reply would be solicited.

P.Pathirana Thalawathugoda

Answer: Any employee who has worked for a period of five completed years without any interruption in service is entitled to claim gratuity under the Payment of Gratuity Act No.12 of 1983. It could be permanent, casual, or on contract. As long as he works continuously worked without a break and completes five years will qualify for gratuity.

If the gratuity is not paid within 30 days from the date he ceases to be an employee, the Employer will be called upon to deposit with the Commissioner of Labour the amount due as gratuity along with the surcharge as provided in the Act.

Labour matter

Question: I worked at an Urban Council and I was suspended without any reason for almost 11 years. Thereafter I made several appeals and in 2005 I was again reinstated. I was paid half wages from 2001 to 2005. Now the administration has taken a decision to reduce the half wages paid from my salary. Your advice in this matter would be greatly appreciated.

G.Livera Katubedda

Answer: You have not mentioned on what grounds the Council has decided to deduct the half wages paid from your salary. However you can file a writ application in the Court of Appeal against that order.

Samaka Diriya pension scheme

Question: Kindly let me know as to how we could register for the Samaka Diriya Pension Scheme for persons with disabilities.

J.Peiris Mattakkuliya

Answer: You have to write a letter to the Director, Sri Lanka Social Security Board, LHP Building, 1st Floor, Nawala Road, Nugegoda attaching thereto a photocopy of the Birth Certificate/Identity Card of the disabled child.

For any further assistance you can visit the Legal Aid Commission, Disabled Unit at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

Can outstanding loan about be deducted from gratuity payment?

Question: I am employed in a private Company and have completed 10 years of service. I have obtained a personal loan from the Company. In case I resign from my employment, can my outstanding loan amount be deducted from my gratuity payment?

Your kind advice would be greatly appreciated.

M.Wanniaratchchi Kotte

Answer: Under the Payment of Gratuity Act, the Employer is entitled to make deductions from the gratuity payable in the following circumstances:-

(a) the termination of services for reasons of fraud, misappropriation of the employer's funds.

(b) the termination of services for willful damage to the property of the employer.

(c) the termination of services for causing the loss of goods, articles or property of the employer.

The forfeiture can be made only to the extent of the damage or loss caused. Loans and advances cannot be deducted from gratuity payments. A Labour Tribunal can review the amount deducted from gratuity payments.

Different types of EPF forms

Question: When we approach the EPF Department to apply for our EPF benefits, we are requested to complete various forms - e.g. Form A,B,C,D,E,F,G,H,I,J,K,L,M,N,O,P & Q. As such I would like to know the various types of EPF Forms issued by the Department and for what purpose these forms can be used?

I also take this opportunity to thank the Legal Aid Commission for the valuable service rendered to the public through this Legal Aid Page.

S.Pinto Angulana

Answer: Thank you very much for your kind comments. We also appreciate your keenness to find out the different types of EPF Forms issued by the EPF Department before hand. It is always advisable to get to know the various types of EPF Forms issued by the EPF Department so that when applying for EPF benefits, you will exactly know which Form has to be used. The following are the types of EPF Forms issued by the EPF Department:-

Form A - Employer's Record Card

Form B - Certificate of Membership

Form C - Employer's EPF Registration Form

Form D - Employer's record regarding employees

Form E - Notice to be given by the employee that he is leaving employment

Form F - Notice to be given by the Employer that the employee has ceased to be in employment.

Form G - Form to be filled by the employee that he wishes to transfer his old account to the new account.

Form H - Nomination Form

Form I - Revocation of Nomination

Form J - Nomination Form

Form K - EPF benefit payable form

Form L - Claim Form for benefits under Section 26 of the Act by a nominee, heir, administrator/executor.

Form M - Medical Certificate

Form N - Statement of contributions transferred from any provident fund or contributory pension scheme to the employees provident fund.

Form O - Request Form for higher contribution rate to the EPF.

Form P - Notice under Section 38

Form Q - Application Form for refund of contributions made to the fund in error.

Is pedigree necessary when obtaining Bank loans

Question: Very recently I purchased a block of land from Kottawa. I now hope to construct a house of my own in the said land. Since I do not have sufficient funds in hand, I intend to obtain a housing loan from a bank. One of my friends who is working in a bank told me that the bank will want to look at the pedigree of the land which I have purchased. As I have no idea of what a pedigree is, I would be thankful to you, if you could kindly explain this to me.

S.Cynthia Panadura.

Answer: A Pedigree is a claim in which the relevant details of an abstract of title are summarised. As in an abstract of title the titles of a property from the 1st owner to the present owner has to be stated in the pedigree, along with details as, the names of the transferor or transferee, nature and the number of the deed, date of attestation and the name of the Notary.

Banks and other financial institutions require a title report along with a pedigree in granting a loan on a property as it helps to find out the history of the property without much confusion. A pedigree helps to examine a title of any particular property.

If the property is gained by intestate succession, the portion of property gained by inheritance differs according to the law the deceased was governed. Namely, Roman Dutch Law, Kandyan Law, Thesavalamai Law or Muslim Law.

If the deceased was governed by common law the manner the property is divided could be simply stated as follows:-

If the deceased was married 1/2 of the property would be granted to the spouse and the other 1/2 to be equally divided among his children. If they haven't any children 1/2 to the spouse and the other 1/2 to parents of the deceased in equal shares.

If the parents are not alive equal shares to the deceased's brothers and sisters. If only one parent is living 1/2 of 1/2 would be granted to the living parent and other 1/2 of 1/2 would be granted to brothers and sisters of the deceased equally.

If the deceased is a divorcee 1/2 goes to the children if children are alive and balance goes to the parents equally or if one parent is alive 1/2 of 1/2 goes to the living parent and balance goes to the brothers and sisters equally.

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Protection Order under Prevention of Domestic Violence Act.

Question: As per the Domestic Violence Act, court has power to issue interim order or protection order to the Respondent. I wish to know the prohibitions that contain in the above mentioned orders?

Your reply is kindly solicited.

K.Rodrigo Borella.

Answer: Under the Domestic Violence Act, the prohibitions are -

(a) entering a residence or any specified part thereof, shared by the aggrieved person and the respondent.

(b) entering the aggrieved person's -

(i) residence;

(ii) place of employment;

(iii) school;

(c)entering any shelter in which the aggrieved person may be temporarily accommodated.

(d) preventing the aggrieved person who ordinarily lives or has lived in a shared residence from entering or remaining in the shared residence or a specified part of the shared residence;

(e) occupying the shared residence;

(f) having contact with any child of the aggrieved person or having contact with such child other than on the satisfaction of such conditions as it may consider appropriate, where the court is satisfied that it is in the best interest of such child;

(g) preventing the aggrieved person from using or having access to shared resources;

(h) contacting or attempting to establish contact with the aggrieved person in any manner whatsoever;

(i) committing acts of violence against any other person whether it be a relative, friend, social worker or medical officer, who may be assisting the aggrieved person;

(j) following the aggrieved person around as to cause a nuisance;

(k) engaging in such other contact as in the opinion of the court will be detrimental to the safety, health or well being of the aggrieved person or other person who may require protection from the respondent as the court may specify in the Protection Order;

(l) selling, transferring, alienating or encumbering the matrimonial home so as to place the aggrieved person in a destitute position.