~~Questions and Answers~~

Rectification of a Deed of Gift

Question: I have gifted a block of land to two minors with life interest on a Deed of Gift. Can I remove a conditional clause contained therein in the said Deed and a fresh clause imposed instead, through a Deed of Rectification.

-Arthur V. Dias - Talangama, Battaramulla

Answer: Yes, rectification of the Gift Deed is possible through a Deed of Rectification. However it depends on the clause specially since you are referring to a conditional clause. Some changes which may effect the beneficiaries can only be done through Courts as such changes are considered to have a major impact on the Gift Deed. We suggest that you discuss with your lawyer with specific reference to the conditional clause you wish to change.

W&OP Fund

Question: I am unmarried, I was 55 years on 06.11.2007. Therefore, please be kind enough to let me know whether I have any benefits on the above.

- Abdulla Ziard-Nawalapitiya

Answer: Since you are unmarried you can claim a refund of your contribution from the W&OP Fund. This can be done only at or after your retirement. If you have retired at the age of 55 you can apply now for the refund, if not you have to wait until you retire. You will however be entitled to you pension as well.

Payment of Gratuity

Question: I wish to place the following facts for your kind consideration and advice. I have been in employment in a private sector establishment for a period of 10 years. Initially, I was paid a monthly salary of Rs. 12,500, with annual increments of salary. It was decided sometime back that all increments of salary will be by way of allowances. The management periodically granted me increments of salary and after a period of 10 years my monthly salary is Rs. 50,367 and the a amount of Rs. 24,000 was fixed for the purpose of calculating monthly EPF and ETF contributions. This was she practice followed. there was no firm structure of the salary or a scale of salary applicable.

After serving for a period of 10 years now I wish to retire from service owing to ill health. Based on these facts I would like to know what my Gratuity payment entitlement will be at retirement. Also, please let me know whether the employer could either reduce or increase the payment of Gratuity. I shall appreciate it if you could kindly consider these facts and advise me on this matter. Your co-operation in this regard will be greatly appreciated.

- RMF, Kottawa

Answer: We presume that the Organisation you work for has a minimum of 15 employees as this is a requirement for your being entitled to the payment of gratuity. Although EPF and ETF contributions have been based on the basic salary, i.e, excluding cost of living, etc., the gratuity payment should be on the consolidated salary including cost of living allowance, special living allowance or any other similar allowances. Only an allowance of a reimbursable nature such as travelling are not included for gratuity.

The Cost of Living of a month by month varying nature although not included for EPF and ETF, if it is of a fixed nature, may have to be included for EPF and ETF as well. In your case all increments of salary have been treated as allowances, still these allowances have to be included for the calculation of your gratuity.

Your employer should not reduce the payment of your gratuity as it is your legal entitlement. However, your employer could increase your gratuity. In our opinion you should get for 10 years (10 x half month salary, i.e., half of Rs. 50,362) Rs. 251,835. You should consult the Labour Department for a proper interpretation. They may even consider the inclusion of the allowances for EPF and ETF calculation.

Waiting for response from Public Trustee

Question: With the consent of my two brothers I wrote to the Public Trustee regarding a Trust. The “Ernest Hamilton Trust” to which our late mother was named as beneficiary. Even though the relevant documents were sent on three occasions twice by Registered post and once by Fax, there has been no response what so ever from this Gentlemen to this day.

Since there has been no response to my query to this day, it has created doubts in my mind whether the Public Trustee is an appointee for the benefit of the General public or otherwise. A few years back, with the collapse of the Pramuka Bank there appeared many articles in the Daily News with regard to the mismanagement of Funds by the Public Trustee holding Office at that time. (funds belong to the General public deposited in Pramuka Bank instead of a State Bank).

I enclose herewith copies of the relevant documents for your kind perusal soliciting your advice in this matter.

Thanking you very much, I look forward to an early response.

- Rolston Maloney, Tangalle

Answer: Sorry for the delay in attending to your matter due to a long queue. We did contact the Public trustee Department and we must state that the Public Trustee as well as the Deputy were very cordial and helpful. You have apparently met them and they were very responsive. They have agreed to look in to the balance funds to be distributed and we are confident that they will do justice in due course. Their only problem is replying every letter which will obviously consume a greater part of their working time. We agree that you too cannot be coming to their office all the way from Tangalle. We suggest you follow up your matter by telephoning the Deputy Public trustee on Tel. 2582328.

Spot fines and collection of driving licence

Question: It would be much appreciated if you will please find me the answers or solutions from the DIG, Motor Traffic or the Commissioner of Motor Traffic for the worst dilemma we all motorists encounter when we are to pay a fine and collect our Driving licence from the Police Station.

I with much frustration wish to relate the torture which I had to encounter when I was charged on the Gampola - Kandy highway while driving my car. A three wheeler was plying at a very low speed (probably 10-20 Kmh). Presuming that it was going to halt, I had overtaken on a Single Line knowing that the Traffic Police was just a few yards away. My justification to the Police Officer as to why I had overtaken was out of favour and instead I was charged.

Anyway, I had to accept my offence and surrender my Driving Licence (For the first time) and received a Document of proof for the licence received. I was really misguided by the Police officer attached to the Kandy Police that I pay a fine of Rs. 550 at my Post Office with the Document provided, but later it was known that I should first collect the Fine Document from the Police station.

In fact all this hassle could be really avoided saving precious time, expenses etc., of any motorist whoever is involved in Spot Fines violating Driving Rules. I suggest the following on behalf of the thousands involved in driving vehicles in Sri Lanka.

1. Spot Fines is welcome for whatever the charge is based. But an offer or choice to be given to the person concerned to pay the Fine at a Police Station convenient to him or her.

2. As at present, e.g., if a spot fine is imposed on a Motorist at Trincomalee who’s permanent residence is Kandy, he/she has to get back to Trincomalee to pay the fine and get back the driving licence, what a “disgrace”. The time, expenses etc., involved going all the way to the Police Station concerned is agonizing considering the present day Cost of Living.

3. In my case too, my closest Police Station was Gampola (where I live), Peradeniya and then Kandy but instead the Police Officer instructed me to go and pay the fine at the Dawulagala Police and collect my Driving Licence, isn’t is absurd?

- M.A.J. Samath, Gampola

Answer: We discussed this matter with the relevant officers of the Police Department. Spot fines are covered under the Motor Traffic Act. Section 215. Accordingly, the spot fine can be paid only at Post Offices.

Of course Post Offices are closed after working hours and holidays which cause inconvenience to drivers who cause inconvenience to others by not following traffic regulations.

The Police Department acknowledging the inconvenience caused to offending drivers have proposed an amendment to the Parliament enabling spot fines to be paid at Police Stations which will be possible any day and any time.

In your case the policeman would have given you a temporary permit and since the policeman was not carrying with him, the book to issue the paper ‘fine’ in lieu of prosecution, you had to collect it from the Police Station.

Once the fine is paid at any post office you can produce the receipt to the Police Station involved with the spot fine and collect you licence. It is not practiced for each traffic policeman to be carrying with him a book of fine in lieu of prosecution, we understand. The purpose of your having to go to the specific Police Station is because your licence will be available for collection only at that Police Station.

Repatriation of proceeds from sale of property

Question: I have given a land as dowry to my elder daughter at her wedding in 1997 by a Deed of Gift. Soon after the marriage she accompanied her husband to Singapore and acquired permanent residency in that country. In course of time they acquired Singapore citizenship.

Last year they chose to migrate to Australia and are at present permanent residents in Australia. As my daughter is no longer a citizen of Sri Lanka can she dispose of her dowry property here and take the proceeds in foreign currency? Will the exchange control approve the outflow of foreign currency to the tune of US$ 90,000 (approx).

Please oblige me with a proper legal procedure for the transaction.

- R. Canagaratnam, Wattala

Answer: From what we understand, your daughter now being an Australian citizen is required to obtain approval from the Exchange Control Section of the Central Bank of Ceylon, in order to sell the property to another Sri Lankan.

We say another Sri Lankan as any sale to non-citizen will involve a 100% tax for the buyer. She could write to the Exchange Control Department and obtain prior approval for the sale. Having sold the entire proceeds has to be deposited in a block Account as directed by the Exchange Control Department.

Thereafter the Exchange Control Department will grant permission to repatriate a maximum of value equivalent to US$ 150,000. They will make into account any funds already taken out at the time of migration or thereafter in allowing or determining the amount that can be repatriated out of the proceeds of sale. You should contact the Exchange Control Department for an accurate picture as our information is merely a guideline.

Is it an offence not to attend Courts?

Question: A job agent (name of Agency and the owner withheld) has taken Rs. 1 million obtain to employment in Canada. He has failed to fullfill his promises. Then I went to his office but he never came to office. I contacted him by phone and he said that he will send a cheque for Rs. 200,000 for expenses incurred when my son was in Ivory Coast. The cheque was dishourned.

I reported this to the Foreign Employment Bureau. They took my statement and filed a case at the Fort MC. Case No. 87332 was called 3 or 4 times but the job agent never came to Court, An open warrant has been issued. The case has been going on for the last 1 year. As my daughter is disgusted over this case she is asking me not attend Court.

Please let me know whether it is an offence if I fail to attend Court.

- S.G. Wijesuriya - Colombo 6

Answer: Based on a complaint made by you the Foreign Employment Bureau has filed a case. Therefore, it is only the Foreign Employment Bureau who can withdraw the case. Even if you request them to withdraw, they may not as they are duty bound to prosecute errant employment agencies.

It is also your civic responsibility to proceed with this case. You can request the Foreign Employment Bureau to inform you when the trial is fixed and attend Courts for the trial only and until then you may skip attending Courts.

The Courts will now await the return of the warrant before fixing the Trial. If you do not attend Courts on the day of the Trial, warrant can be issued on you as you are a witness to this case.