Dignity for senior citizens

A few days ago Dr. Lester James Peries, the Grand Doyen of the Sinhala cinema celebrated his 90th birthday. He was felicitated by the Head of Sate, President Mahinda Rajapaksa and a multitude of cinema lovers in the country.

A few weeks ago on January 11 another distinguished son of Sri Lanka, Dr. P.R. Antonis celebrated his 98th birthday. There are many other distinguished Sri Lankans who have become the symbols of longevity living well into the new senior elders' age of 80 years.

The Legal Aid Page which during the past few years promoted the cause of elders in Sri Lanka wish longer, healthy and active life for senior elders of our country. The Elders Act No. 9 of 2000 adopted without political division and certified into law on May 4, 2000 defines an elder as a person who has passed the age of 60. Some other countries have adopted 65 years as the elders' threshold year. Demographers project the Sri Lankan elderly cohort nearing 2.3 million and is expected to increase in the coming years influencing the socio-political dynamics of the country.

Eventhough, still not appropriately placed in the political agenda, nearly 20 percent of the voting population are elders in Sri Lanka and will influence the outcome of future elections. Elder friendly political issues are bound to influence the political scene very soon. 'Elder' is a generic word used to describe the senior cohort in a society. Demographers now categorize elders in two divisions, Elders and Senior Elders. The age line identified for this division is 80 years. The young elders are considered to be less dependent and continue to participate in the development paradigm.

The senior elders are considered to be comparatively more dependent on elderly care and should benefit from the social justice programs in any civilized country. A universal pension scheme is one such program.

According to a World Bank report titled "Addressing the needs of the aging population" traditional family care of elders still support over 75 percent of all elders in Sri Lanka but is strained due to lack of income support, social dislocation and the disintegration of family unit.

The National Council of Elders, the key policy making body on elders will celebrate the ninth anniversary of the Elders Act on May 4 by hosting a full day seminar focusing attention on Elders or the over 80 segment of our elders.

This would be in addition to the celebrations of International Day for Older Persons on October 1. As remarked by one Gerontologist, Elders should not be the ashes of society but should be the glue that binds the generation. Many Elders are expected to participate in the seminar. - S.S. Wijeratne

Questions and Answers

Closure of company

Question: I have been a Director of a company which had to be closed down sometime back due to continued losses.

On an application made to the Department of Labour by the company or termination of employment of workers, the Department after due inquiries ordered that compensation be paid to workers and stipulated a date for closure.

In the meantime the Directors of the defunct company sold their shares to another party who has agreed to re-open the factory and provide employment to all who were there before closure and continue the business. A. MOU was drawn.

My question is whether the former Directors are still liable to pay compensation in view of the position that there has been no termination of employment because the present Directors have agreed to employ the workers and the company continues as a going concern.

On what basis are wages to be computed in respect of the interim period during which the factory was kept closed?

S. Pathirana,

Battaramulla

Answer: According to your question, the Company had made an application to the Commissioner of Labour for the termination of employment of all employees. An inquiry has been held by the Commissioner. After hearing evidence the Commissioner has granted permission to terminate the services of the employees and awarded compensation. Under normal circumstances when computing compensation, the Commissioner takes into consideration the period where wages were not paid and also gratuity is computed separately.

Your question is not clear. In order to advise you in the matter, please send us a copy of your application to the Commissioner General of Labour and the order made in that connection.

Registration of a mark

Question: I want to find out whether I could use a mark without registering the same. Also please let me know as to why you should register a mark. Your kind reply is solicited.

M. Thushara

Kotikawatta

Answer: A registered mark is a mark registered under the law and with National Intellectual Property Office. You can use a mark even without registration. Unregistered marks can be protected under the unfair competition law or common law action for passing off.

It is highly advisable that you register your mark. The registration of the mark gives its owner exclusive right to use it, assign it and license it.

You can enforce these rights easily and effectively through court-civil or criminal or both. You can easily retrain others from using your mark or a mark deceptively resembling your mark. You are even entitled to claim damages.

The IP Office will examine your application as to the formal requirements. If formal requirements are fulfilled and the international type search report is available the patent will be granted.

The invention will be published before grant if an international type search report is not available. The details of the NIPO Office is given below:

National Intellectual Property Office of Sri Lanka. 3rd Floor, "Samagam Medura"400, D. R. Wijewardene MawathaColombo 10. Tel: +94 (011)2689368 Fax: +94 (011) 2689367 Email - [email protected] Web-www.nipo.gov.lk

Re: Gratuity payment

Question: I have been employed in a Mercantile Company for the last six years. I have obtained a loan from the Company to be settled in monthly installments.

Please let me know in case I resign from the Company, can the Company deduct the said loan from the gratuity payable to me. Your kind reply wold be greatly appreciated.

M. Haroon

Mattakkuliya

Answer: The Employer is entitled to make deductions from the gratuity payable under the Gratuity Act 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.

Public nuisance

Question: I am a resident of Ratmalana and have been living there for the past 30 years.

There is a factory close to our premises and the fumes that emanate from the factory are causing serious problems to the people residing in the area.

Besides breathing difficulties we are having difficulty in cleaning our houses as furniture, fittings, etc get covered by layers of dust.

Can we resort to any legal action? Please help.

G. Fernando

Ratmalana

Answer: Under Section 98 of the Criminal Procedure Code, a Magistrate can make orders to prevent/stop any public nuisance caused by any person.

The Magistrate also can issue an injunction if immediate measures need to be taken to prevent injury to the public.

Therefore, It is advisable to file public nuisance action in the Magistrate's Court praying for an injunction.

Duplication of deeds

Question: Please let me know how to apply for search of duplicates of deeds. Your reply is appreciated.

Chamari

Nugegoda

Answer: You have to go the relevant Land Registry and get the application form (Application for search of duplicates of deeds). The following details have to be filled in.

(a) Name of attesting Notary:

(b) District or Station where he practised at the time:

(c) No. and Nature of Deed:

(d) Date or probable period:

(e) Name of Grantor:

(f) Name of Grantee:

Particulars of property:- State here name, boundaries, extent and situation, specifying the Village (or town, street and ward), or other Division and District.

(Whether the applicant is the owner of the property affected or whether search is made in connection with a case in which event the number of the case should be quoted. If the applicant acts as agent a letter of authority from the principal should be annexed).

The scale of fees is as follows:

For search of duplicates of a single Notary or other attesting Officer: Period not exceeding 12 months Rs. 5, each additional 12 months or part thereof Rs. 2.

Change of parents name in Birth Certificate

Question: I am married and have no children. My cousin's daughter has been living with us from the age of 11 and is 19 years now. We changed her surname to our surname in her Birth Certificate but not the parents name.

Please let me know whether we could change the parents name in her Birth Certificate.

A. Perera

Colombo 3

Answer: You can change the name in your Birth Certificate at any time but you cannot change the parent's name in his/her Birth Certificate. According to your question, we can see that you are adopting your cousin's daughter (not legally).

If you are interested to change the parents name in her Birth Certificate, you have to first file an adoption case.

Thereafter, you can insert your name as parents in her Birth Certificate.

Prevention of Domestic Violence Act

Question: Under the Prevention of Domestic Violence Act can a person be punished for printing or publishing any matter which may disclose the identity of an applicant/respondent. Your kind reply will be greatly appreciated.

M. Priyantha

Moratuwa

Answer: Under the Prevention of Domestic Violence Act No. 34 of 2005, any person who prints or publishes -

(a) the name or any matter which may make known the identity of an applicant or a respondent in an application under the Prevention of Domestic Violence Act; or

(b) any matter other than a judgment of the Supreme Court or Court of Appeal, in relation to any proceeding under this Act, in any Court shall be punished with imprisonment of either description for term which may extend to two years or to a fine or to both such imprisonment and fine.

Liability of offences under Companies Act No. 7 of 2007

Question: Please let me know what are the malpractices before winding up and Liability of Offences under the Companies Act No. 07 of 2007.

P. Ashan

Kaduwela

Answer: Under the Companies Act No. 07 of 2007 - Section 374. (1) states that:

"When a company is wound up, a person who is a past or present officer of the company is deemed to have committed an offence if, within the two years preceding the commencement of the winding up, he has-

(a) concealed any part of the company's property to the value of ten thousand rupees or more or concealed any debt due to or from the company;

(b) fraudulently removed any part of the company's property to the value of ten thousand rupees or more;

(c) concealed, destroyed, mutilated or falsified any book or document affecting or relating to the company's property or affairs;

(d) made any false entry in any book or document affecting or relating to the company's property or affairs;

(e) fraudulently parted with, altered or made any omission in any document affecting or relating to the company's property or affairs; fraud &c. in anticipation of winding up.

(f) pawned, pledged or disposed of any property of the company which has been obtained on credit and has not been paid for, unless the pawning, pledging or disposal was in the ordinary course of the company's business;

(g) made or caused to be made any gift or transfer of or charge on, or has caused or connived at the levying of any execution against the company's property, with the intent of defrauding the company's creditors; or

(h) concealed or removed any part of the company's property since or within two months before the date of any unsatisfied judgement or order for the payment of money obtained against the company, with the intent of defrauding the company's creditors.

(2) It is a defence -

(a) for a person charged under paragraph (a) or (f) of subsection (1), to prove that he had no intent to defraud;

(b) for a person charged under paragraph (c) or (d) of subsection (1), to prove that he had no intent to conceal the state of affairs of the company or to defeat the law.

(3) A person who commits an offence under subsection - shall be liable on conviction to a fine not exceeding one million rupees or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.

E-payment

Question: What is the legal position relating to payment in E transactions.

Asha Colombo

Answer: Normally a payer(Computer Operator) has to give credit card details or bank details by prior arrangements entered in to with Bank. Once the payer enters these details the transactions will be completed. Under normal circumstances however, countries in the european Union , Australia and the United States 'e ' services have been given to the satisfaction of the consumers.

In the European Union E transactions are governed by E Commerce directory, where within a specified time period consumers are entitled to return the goods or to complain on services to the seller and claim the money paid to the Bank.

In Australia E-commerce guidance may give protection to consumers and it is the duty of the seller to provide all details about goods or services offered to the consumers.

If the consumer is satisfied he has to agree unconditionally and inform to the seller before the payment - e.g. shrink-wrap conditions.

If you are familiar to online business you should read the condition before you enter purchasing goods. You have to read the terms and conditions and required to click "I accept" button.

The sellers presume that you have understood properly the terms and conditions or other statements relating to the quality of goods and services offered. Currently Sri Lanka does not have a Data Protection Act or e-commerce guidance relating to online purchasing. Therefore consumers have to take precautions prior to entering in to transactions. At the moment there is an element of risk in 'e ' transaction.

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Wages Board

Question: I am very much interested to know the law in general with regard to the Wages Board. Your kind reply would be greatly appreciated.

S. Piyasena

Wattala

Answer: The law in general with regard to Wages Boards:

01. When a Wages Board for reasons not specified fails to meet and decide the Commissioner of Labour has the power to determine a general minimum time rate.

02. For a worker employed on piece rate, the Wages Board has not decided the rate of wages. In such a situation he has to be paid not less than the general minimum time rate.

03. A worker performing two or more classes of work shall be paid in respect of the time spent in each class of work, wages not less than the minimum rate in force in respect of the class.

04. A worker waiting for work at employer's premises shall be deemed to have been employed. The exceptions to this rule are -

(a) A worker residing in the premises of the employer shall not be employed during the time he was in the premises by reason of the fact that he is no resident.

(b) A worker present in a room during normal meals time in a room or place in which no work is done, shall be deemed to be present for a purpose un-connected with his work.

05. Work done under an arrangement made by way of trade is covered under this Ordinance.

06. The Commissioner of Labour or any officer authorized in writing by the Commissioner of Labour has the power to authorize the payment of wage less than the minimum rate in respect of a non-able bodied worker.

07. The employer in any trade for which a Wages Board has been established shall with the written permission of the Commissioner of Labour employ a worker in that trade as an apprentice or learner.

The Commissioner of Labour may withdraw the permission granted to the employer if he does not fulfill such conditions determined by the Board.

An employer shall not receive any premium directly or indirectly from an apprentice or on his behalf.

This shall not apply to any payment made not later than four weeks after the commencement of employment in pursuance of any writing entered into at or about the time of commencement of employment.

08. An employer of workers in any trade shall grant to such workers a holiday on every Full Moon Poya Day.

If the weekly holiday fails on a Full Moon Poya Day, no additional weekly holiday shall be granted.

09. A worker can be employed on a Full Moon Poya Day for the normal period of employment subject to payment of 1 1/2 times the normal daily rate of wages.

10. The Wages paid shall, on request made by a worker or Trade Union to which he belongs, be furnished by the employer.

11. In case of default of payment of wages the Commissioner of Labour may issue a certificate containing particulars of the amounts due to the Magistrate having jurisdiction of the place of residence of the defaulting employer.

12. The correctness of the statement in the certificate shall not be called in question or examined by the Court and it shall be sufficient evidence that the amount has been duly calculated.

13. The court shall impose a fine specified in law in respect of first offence, second offence and subsequent offences. Recovery of the sum ordered may be done as a fine.

14. Surcharge payable on any sum shall be calculated as follows:

(a) Arrears for a period exceeding a month but not exceeding three months 20%.

(b) Exceeding three months but not exceeding six months 30%.

(c) Exceeding six months but not exceeding twelve months 40%.

(d) Exceeding twelve months 50%.

15. Section 60 specifies that no prosecution for any offence under this Ordinance shall be instituted in any Court except -

(a) with the written sanction of the Commissioner of Labour.

(b) Within six years of the commission of the offence.

16. Where employment of any worker, learner or apprentice employed in any trade for which a Wages Board has been established is terminated, his employer shall issue him a certificate of service.

17. Every decision made by a Wages Board shall be signed and dated by the Chairman and transmitted to the Minister through the Commissioner of Labour and the Minister may refer it back to a Wages Board for re-consideration and the Wages Board shall after reconsideration return the decision to the Minister.

Any decision which is approved by the Minister shall come into force on the date on which the notification of such approval is published in the gazette in one Sinhala, one Tamil and one English newspaper.

(The answer to the question was extracted from the article written by V. Vimalarajah, AAL Retd. President Labour Tribunal in the Bar Association Law Journal Vol. XIV Part I).