Opa At Your Service

Questions and Answers

Action against misconduct of employee

Question: In view of the misconduct of an employee what is the appropriate action that the management can take. Is it “suspension” or “interdiction”.

What is the difference between “suspension” and “interdiction” and at what stage could they be applied.

An early response will be appreciated through your valuable “Question and Answer” Column in the Daily News.

P. Ratnayake - Malabe

Answer: It depends on what you mean by misconduct. A case of robbery, miaspporpriation of funds, assaulting another employee or a higher officer, such offences are considered serious misconduct. There can also be insubordination which could be minor or major.

You can take approporate action according to the seriousness of the misconduct, even termination. It is better if a procedure could be followed such as the establishing the offence or misconduct, issuing a show cause letter and even an inquiry if necessary. Suspension is of immediate effect until the facts of the case can be established.

Interdiction is after the facts have been established, would usually follow after suspension. During interdiction an inquiry is held and will be followed by punishment or termination.

In our opinion suspension will be of a shorter duration and implemented immediately than interdiction which is usually after fact finding or establishing misconduct.

Damaged Folio of birth certificate

I was born in 1941. I applied for a certified copy of my Birth Certificate and forwarded it to the Additional District-Registrar Uduvil Division, Jaffna District-where I was born.

I got a reply in print from (Registration B No. 38) where it was stated that the respective folios of my both certificates has been damaged and in the cages below it was also noted that a fresh birth certificate could be constructed and to contact the nearest-Additional District Registrar.

As I am living in Colombo, I made an application in the necessary form to the Assistant Registrar General Central Record Room in Maligawatte Colombo 10. Along with it, I annexed the form (Registration B 38) sent to me by the Additional District Registrar, Uduvil retaining a Photostat copy with me, and also a copy (Photostat copy) of my birth certificate enabling them to construct a birth certificate certified by the authorities concerned. I forwarded the forms under registered cover no. 7989 dated 23/09/09 of APO Kotahena so far I didn’t get any reply. Please direct me.

A.A. Sri Mahathevan, Colombo 13

Answer: Our understanding of constructing a new folio for the registration of birth requires the original birth certificate and cannot be done with a copy. This reconstruction is handled by the Registrar General’s Department at Battaramulla. Also reconstruction of folio requires Court approval.

Although the record of birth is not available now at your place of birth, have you checked whether the record is available in the Central Record Room at Maligawatte, Colombo 10. We suggest that you call over at the Central Record Room at Maligawatte, Colombo 10 and meet the Assistant Registrar General Mr Alexander Fernando. Suggest you call him on Tel. No.2329773 before you call over as he may be out of office on certain days. He will be able to help you or advise you.

Entitlement to EPF and Gratuity

I am a retired pension teacher who served in the Government service from 1965 to 1990 in which year I resigned.

I joined a private college in 1999 and left in 2008, after having served for about 10 years. I was not given an appointment letter. My initial salary was Rs. 5,000 and the last month’s salary was Rs. 10,000.

I wrote letters to the relevant authorities and appeals. I was placed in EPF from 2003 calculated only six years, but omitting other three years. I have still not got my Provident Fund which is a legitimate right. I worked for more than five years and with more than 15 employees in the College. Whether the part-time contract basis service is valid or permitted to claim for provident funds. Please enlighten me in this issue and grant me a solution to this problem.

H.D.J. Anthony - Kelaniya

Answer: The fact that you are retired from Government service and that you are drawing a pension does not affect your right to EPF and gratuity. According to what you have stated after your retirement in 1990, you have been employed in a private college from 1999 to 2008 with uninterrupted service of 10 years. Whether it was on part-time or contract basis is immaterial since you have been paid a monthly salary of Rs. 5,000 per month at the beginning and Rs. 10,000 per month at the end.

You are entitled to EPF and ETF for your entire service of 10 years. You have also stated that there are more than 15 employees in this College. Therefore, you are also entitled to the gratuity payment of half month’s salary for every year of service. This should be based on your salary at the end of your service. We suggest that you take up this matter with the Labour Department office in the area of this College without any further delay.

Income Tax on interest income

I am a senior citizen drawing a pension. My other source of income is from Interest in Fixed Deposits in State Banks. In the Withholding Tax declaration forms sent out by the Banks it is stated earning of interest up to Rs. 200,000 is free from Income Tax.

As a Senior citizen I am entitled to a Tax free allowance of Rs. 500,000.

After deducting Rs. 200,000 from my interest earnings am I still entitled for Tax Free allowance of Rs. 500,000.

N.A.G. Dharmasena - Dehiwela

Answer: Your pension is not taxable. Usually interest income from any Bank or Financial Institution up to Rs. 300,000 is exempted from withhold tax (WHT) Senior citizens are allowed a further Rs. 200,000/- of interest income as exempted from withholding tax provided this Rs. 200,000/- interest income is from deposits in a State Bank, State Bank meaning NSB, People’s Bank, Bank of Ceylon, State Mortgage and Investment Bank, Housing Development Finance Corporation Bank, SME Bank Regional Development Bank and Lanka Puthra Development Bank. Thus the total tax free interest income for you is Rs. 50,000/- as a citizen who has invested in a State Bank. If your total interest income exceeds Rs. 500,000/- p.a. you will be charged 2.5 percent as WHT up to an interest income of Rs. 1 million per annum. If interest income is more than Rs. 1 million you will be charged 10 percent as WHT.

Functions of a Justice of Peace

Please let us know the function/ obligations expected of a JP in his daily routine of work to the society, other than certifying affidavits, copies of documents, certifying passport application etc. Is a JP scheduled as a “Peace Officer”.

Lekamwasam - Ambalangoda

Answer: We made inquiries from the Ministry of Justice and Law Reforms and were unable to get a clarification as to whether a JP is scheduled as a “Peace Officer” apparently not as per the person we contacted. When we contacted a JP he says that JPs are Peace Officers but not sure whether they are scheduled as such.

As regards the obligations and functions, there is a booklet available with the Ministry. If you write to them directly they will send you a copy, we cannot publish the entire contents, of this booklet.

You should write to the Secretary, Ministry of Justice and Law Reforms P.O. Box 555, Superior Courts Complex, Colombo 12.

Prescriptive title to house

My house and premises were verbally gifted to my grandfather by a British land lord, as a gratuity for over (80) eighty years ago. After my grandfather’s death, a new (Sri Lanka) land lord filed a civil (Ejectment) case in the District Court, against my parents in 1966.

After the trial in the DC, the judgement was granted in favour of us to live in the house, and it was further stated that our parents (defendants) had acquired the prescriptive title to this land in 1970. Now, another person is claiming to be an owner of my Lawful land and house.

However, my family members and I are continuously residing in this land (house) since birth and we have undisturbed and uninterrupted possession during such period for ten years, or more than th

at in the same land (house).

1. Can I claim Prescriptive Title and how can I apply for the certificate of ownership of land?

Please enlighten this matter through the “Daily News-OPA at Your Service” at your earliest.

S. Loganathan, Wattegama

Answer: You must consult a lawyer for proper advice and the preparation of Legal documents. However, we can provide you with some relevant information. Yes, you can claim prescriptive rights to this house as you not only claim to have occupied for more than 10 years, you also happen to be the third generation occupying this house. More than prescriptive right you have a stronger case as the legal heir of your parents who have been granted prescriptive rights in 1970 by the District Courts. The only lapse we observe is that your parents should have prepared a title deed and passed the ownership under heirship. However, you can now get a lawyer to prepare a deed of declaration and register it at the Land Registry. As per the information provided by you, this person has no legal right to claim your house and land.

Remuneration of office employees

Please be kind enough to let me know whether there is a minimum wage for

1. Office Employees working in shops and Non Governmental Organizations?

2. Are such employees entitled to EPF benefits on their overtime income?

Many employees have told me that they earn only a pittance.

V. Manikkawasagan - Wattala

Answer: As far as we are aware, there is no minimum wage stipulated for office employees working in shops or non-Governmental Organizations. Such employees are covered by the Shops and Office Employees Act but no minimum wage has been stipulated by the Labour Department. However and any Budgetary Relief Allowances such as Rs. 1,000 per month under Act No. 36 of 2005 to all employees drawing below Rs. 20,000 has to be paid to such employees in the private sector.

Only employment covered by the Wages Board such as garment industries etc. have a minimum wage.

Overtime need not be included in arriving at the EPF contribution.

Minimum number of employees for gratuity liability

Question: I am an HR officer in a private company in Negombo. For my information, I wish to know, for the purpose of gratuity whether minimum number of employees in a working place should be 15 during the month of termination / resignation / retirement of service or during the year of service.

Please inform this is your ‘Question and Answer’ column in the Daily News.

Vincent Perera, Negombo

Answer: Yes there has to be a minimum of 15 employees for legal requirement of the payment of gratuity. However, many organizations voluntarily pay gratuity for those employees who have served them for five years or more even if there are a couple of employees. From the point of view of your question, if there were 15 employees in the previous year there is the liability of gratuity. Even if there are less than 15 employees and if the employees have served about 10 years they can be entitled to retirement compensation. You may contact the Labour Department for further information.

Withholding Tax on consultancy service

Question: I refer to the above matter appeared in the Daily News of October 22, 2009 and wish to confirm the following:

1. When a person or body makes total payment of Rupees one million or more per year to all who render, services are described as specific persons. They have to register for Withholding Tax deduction.

2. When a person/consultant renders service to specific person on a fee of Rs. 50,000 or more per month or Rs. 500,000 per year, 5 percent tax has to be deducted and remitted to the Department of Inland Revenue. (It is 10 percent in respect of rent payment).

3. If the Consultant is also a Director of that establishment (non-executive Director) 10 percent deduction is necessary.

In the above case Rs. 5,100 per month has been remitted to the Department of Inland Revenue as 5 percent deduction and therefore the monthly income is Rs. 102,000 (Rs. 1,224,000 per annum). Therefore 5 percent deduction is correct. If he is also a non-executive Director it should be 10 percent deduction.

In all cases, tax credit would be available in respect of tax remittance against the total tax liability of the said person. However in the case of non-executive director no refund is available even if it exceeds the total liability.

In this case assuming he has no other taxable income, total tax payable in respect of his assessable income of Rs. 1,224,000 is Rs. 78,600. Therefore the excess tax deducted of Rs. 43,800 is non refundable. If he is not a none-executive director he has to pay Rs. 17,400 to the Department of Inland Revenue in addition the withholding tax of Rs. 61,200.

S. R. Balachandran, Wellawatte.

Answer: We thank Mr. Balachandran BSc, FCA, FCMA, Council Member of the National Chamber of Commerce Sri Lanka for regularly reading our page and providing us with expert, detailed advise on tax matters. In the question referred to, we have mistakenly assumed the consultancy income of the private consultant to be Rs. 5,100 per month, where as rightly pointed out by Mr. Balachandran the monthly withholding tax deduction is Rs. 5,100 per month. Thus the explanation provided by Mr. Balachandran is more appropriate. This will be useful explanation to all Consultants.

Non-receipt of Teachers’ Training College Certificate

Question: Thank you very much for your valuable service rendered through the OPA column in the CDN.

I am a teacher of English serving at Government schools from 1988. I underwent the two year residential teacher training at the English Teachers’ Training College, Peradeniya in 1992 and 1993. Eventually, I sat for the final examination held in September, 1993 and got through the same. I am one of the 225 candidates who sat for the said examination. Of them, only 48 candidates have received their certificates of the teacher training from the Department of Examination. But the rest have not received their certificates so far. Almost 16 years have passed since the said examination was held but still we are Trained Teachers without the original Certificate of Teacher Training issued by the Department of Examinations.

Therefore, please be kind enough to look into this matter and help us to get our Teacher Training Certificates from the Department of Examinations at once.

I. Atham Lebbe, Kattandkudi

Answer: We contacted the Department concerned and we were made to understand that you have to make an application on the prescribed application form and thereafter you will be issued with the relevant certificate.

First you should send a written request for an application form and we suggest you also send a self addressed stamped envelope. You must write to the Certificate branch, Department of Examinations, Pelawatta, Battaramulla. If necessary you may contact the Deputy Commissioner - Certificates A. S. Mohamed. Tel. No. 2784323.