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Labour & Employment

Will the ombudsman concept by the SEBI adversely affect the entities?

By Labour & Employment No Comments

One of the most perplexing issues that SEBI faces is investor complaints. Verifying facts, solving legal issues, and finally reaching a conclusion may be extremely costly for SEBI if the conventional method is followed.

In terms of recognizing the virtue of time, the delay might be far worse. Sebi has also been criticized for effectively performing the function of a postman by just delivering the complaint to the Company without taking any further action. Of course, there are certain criticisms that are baseless. There may be several complaints filed against the company in which SEBI has no part.

Nonetheless, the current circumstances necessitated a new strategy, and Sebi has advised a whole new strategy in the form of the proposed “Ombudsman Regulations.” The notion of an ombudsman is not a novel one; it already exists in the banking industry. Based on all of the recommendations, SEBI suggested this regulation apply to the operation of the capital market sector. It is, in essence, and even legally, a time-limited arbitration procedure. Many of the procedures, which are usually time-consuming, are and have been eliminated entirely. There will be just one and the last level of appeal, and it will be addressed to SEBI. No legal representation is permitted, and the major importance of this issue is emphasized, with severe consequences.

Given the core of the Act, the Ombudsman does not require any fancy credentials, and anybody with specific knowledge and competence in subjects such as “legal, finance, economics,” and so on would be considered competent for the post. Apart from the usual disqualifications, one that bears special mention is that he should not have served as a full-time director of an intermediary or a publicly listed company. Surprisingly, his job is entirely at the discretion of the SEBI, and he may be dismissed and dismissed with just a day’s notice.

The proposed regulation included benefits as well as drawbacks for investors, some of which are outlined below. A residuary category of complaints includes any complaint made against an intermediary or a publicly listed firm. As a consequence of this chance, anybody with a compelling claim against a publicly listed company, whether an investor or not, or an intermediary, can apply to the Ombudsman for assistance. Of course, no arbitrary limits should be placed, since this may lead to the rejection of real concerns for technical reasons. However, such wide breadth may not be required, resulting in some of the unusual and trivial complaints being brought and addressed before the Ombudsman.

However, when looking at the other half of the page, the broad definition supplied offers some advantages. Certain technological roadblocks are also removed by not requiring the complainant to be an investor (or even qualified in any other way). Additionally, avoiding the development of particular categories aids in preventing some attempts by corporations to dodge certain regulations. Such as the complaints by claiming that they do not fit into any of the categories.

Therefore, the “Securities and Exchange Board of India (Sebi)” has now dropped its plan and scrapped the proposal to create an ombudsman to handle the investor complaints more quickly and feasibly. According to the regulator, the present mechanism for stock exchanges handling investor complaints looks to be pretty solid and to be operational and functioning efficiently. Investors are increasingly taking their complaints about all publicly listed businesses to specialized stock exchanges, which are also regarded as first-line regulators. After that, the bourses are allowed to take up the cases with the concerning corporations. Sebi is only notified of the complaints that have not been efficiently handled.

In the most perfect system, every stock market participant would have its own ombudsman.”

Thus, the decision to reject the idea was taken in the best interests of the whole investment community. Since SEBI was also having problems finding a qualified candidate for the position of the ombudsman. However, the idea was met with opposition from the start, and hence SEBI decided to withdraw it.

Impact of the judgment on land acquisition proceedings in India

By Labour & Employment, Media Coverage No Comments

It is widely perceived that the Indian state holds the right of “eminent domain,” which refers to the sovereign’s capacity to acquire private immovable property for public use, provided that the nature of the public purpose can be established beyond a reasonable doubt, and that the owner of such property receives fair and equitable compensation. The most essential component of land acquisition jurisprudence in India is the payment of fair compensation to the landowners in exchange for the state’s expropriation of their land for public use.

In its March 6, 2020, verdict in the Indore Development Authority v Manoharlal & Ors., a five-judge constitution bench of the Apex Court decided that land acquisition proceedings would not expire if the state has unconditionally provided appropriate compensation. The bench also clarified that if a person was offered compensation but refused to accept it, he cannot claim lapse of acquisition due to non-performance of payment or non-deposit of compensation. Furthermore, once the state makes an award and publishes a memorandum, the landowner loses title to the property, and Section 24(2) of the new land acquisition legislation prohibits landowners from reopening settled cases, reviving time-barred claims, or challenging the legitimacy of ended processes.

The Court stated – “Overruling all precedents and resolving the ambiguity relating to the interpretation of Section 24(2) of the New LA Act, the bench held that the word ‘or’ used in Section 24(2), should be read as ‘nor’ or as ‘and’. Since Section 24(2) prescribes two negative conditions, even if one condition is satisfied, there is no lapse of acquisition proceedings. Therefore, only if both the conditions mentioned under Section 24(2) have not been fulfilled before the New LA Act came into force, would the land acquisition proceedings lapse. The bench observed that the alternative interpretation would place an undue burden on the state in land acquisition proceedings.”

The bench responded by saying that under S. 24(2), the phrase “paid” does not include a court-ordered reparation deposit. If a person has been granted compensation under the Old LA Act, he cannot claim that the acquisition has lapsed owing to non-payment or non-deposit of compensation in court under Section 24(2). The bench went on to say that if the state has issued the compensation under the Old LA Act, it has fulfilled its duty to pay. 

Thereby, it was held that S. 24(2) of the New Act does not allow landholders to reopen settled cases, revive time-barred claims, or challenge the legality of concluded proceedings. S. 24(2) applies only to pending proceedings where the award was made at least five years prior to the effective date of the 2013 Act.

Impact of the judgment on land acquisition

The Supreme Court’s ruling is anticipated to pave the way for the prompt settlement of issues arising out of current purchase processes under the Old LA Act. One may fairly anticipate this to open the way for fast physical and associated infrastructure development operations in the post-COVID-19 period, which had previously been blocked or put on hold owing to a variety of litigations concerning outstanding acquisition actions.

More land parcels would be liberated from the clutches of long-standing litigation and given access to the purchasing state or authority for use in significant infrastructure development and construction operations, which would definitely enhance the government’s endeavors to fulfill its goals under the “Housing for All by 2022” program and hasten urban growth.

EMI Moratorium: Analysing borrower’s creditworthiness amidst the pandemic

By Labour & Employment, Others No Comments

Financial institutions are focused on risk now, more than ever before. The virus-induced lockdown has raised “Liquidity” and Non-Performing Assets (“NPA”) issues popularizing these buzzwords in financial circles and beyond. Anticipating a domino effect on loan defaults amongst small to medium-sized businesses, the Finance Ministry in conjoined efforts with Regulators and the Reserve Bank of India (RBI), introduced numerous measures for the maintenance of equilibrium between the market forces of demand and supply during the pandemic.

With the widespread prevalence of the COVID-19 pandemic, they are increasingly recognizing that the rebuilding phase offers a unique opportunity to encourage action on the agenda of survival until the COVID-19 dust settles. The acute phase of COVID-19 has drawn central banks’ attention from a crisis that was earlier restricted to some states and regions, to a global economic crisis riddled with challenges. The nature of the crisis has revealed basic vulnerabilities around the world, most importantly those surrounding individual borrowers.

The Finance Ministry directed Banks to roll out loans resolution framework with the Loan Moratorium period ending on August 31st and the festive season around the corner. In doing that the Supreme Court directed that while Banks are free to restructure loans, they cannot penalize individual borrowers availing moratorium benefit. The apex court held that charging interest on deferred EMI payments under the moratorium scheme during the COVID-19 pandemic would amount to paying interest on interest which is against “the basic canons of finance” and unfair to those who repaid loans as per schedule.

RBI’s move to restructure personal loans accord this benefit to consumer credit, education loans, loans for creation, or housing loans pursuant to a central bank notification. Specifically, the relief may include “rescheduling of payments, conversion of any interest accrued, or to be accrued, into another credit facility, or, granting of a moratorium, based on an assessment of income streams of the borrower, subject to a maximum of two years”; however the exact contours of the resolution plan have not been clearly laid out and remain undecided.

The primary objective of this move at helping borrowers on the pretext of mass unemployment, pay cuts, and lay-offs in light of the world’s strictest lockdown, thereby paralyzing economic activity. So a 2-year moratorium that RBI has now permitted under such restructuring proves to be a blessing in disguise for people experiencing cash crunch during the pandemic.

Clearly, it will boost households facing a cash crunch — especially those who lost their jobs or small businesses who are on the verge of a shutdown. RBI has moved consistently and quickly since the start of the pandemic to calm markets, to provide liquidity, and, now, these steps should go some distance in giving relief to the distressed liquidity-starved household.

However, each household should be wary of using this facility. At the outset, a loan moratorium was aimed at helping those in distress and not meant to be used as an opportunity for the pre-existing defaulters of loan payments. At the other end of the spectrum, the moratorium extension is likely to provide a negative credit outlook for financial intermediaries in the shadow financing industry like Housing Finance Companies and Non-Banking Financial Companies.

Invariably, the deferment of EMIs will have an adverse impact on the cash flows of these financial institutions and test their resilience during depressionary forces emanating from the COVID-19 pandemic. Despite the slew of measures announced by the RBI and government to alleviate liquidity woes of financial institutions, these measures may have less impact in the short to medium term, but the operative word being “defer” of loan installments, and not a complete waiver or discount thereof should be of prime importance in the personal finance industry and be availed only if absolutely required.

A growing number of central banks and banking supervisors are starting to work together to progress a global approach and agenda. In doing so, the central banks need to develop a clear strategy on the way forward. A monetary policy needs to be forward-looking. Given the slowdown in the economy and that the transmission of rate cuts takes time, there is a need for further monetary policy easing. This will also be helpful as uncertainty remains over COVID-19 having a deflationary or inflationary impact on the Indian economy in the medium run.

While the temptation to adopt aggressive measures may be high, crossing the traditional boundaries between fiscal and monetary policies, but are feasible for central banks in advanced economies with high credibility stemming from a long track record of stability-oriented policies. Thus this strong medicine should only be taken with extreme care.

Navigate the sea of job loss with confidence

By Labour & Employment No Comments

Mass layoffs are an impending consequence of this pandemic, which is likely to further rupture our already ailing economy. In response to the global and national economy taking a hit and financial difficulties brought on by the lockdowns necessitated by the need to curb the spread of the pandemic, employers have altered traditional working methods to limit contact between employees. They are embracing remote working methodologies, bonus/salary cuts while mass layoffs have become the order of the day. Even as we are oblivious to the depth of the virus’ impact on the economy, one thing is abundantly clear — the workplace will never be the same again.

With lockdown 2.0 in effect, the cash reserves will further plummet, creating additional strain on employers and will subsequently aggravate the problem of layoffs in a company’s pursuit to save depleting resources from the further drain. This is especially true for organizations that cannot function remotely owing to the nature of their business. In such a scenario, one can only imagine the plight of white-collar workers, the condition of blue-collar employees, contractual laborers, and those belonging to the unorganized sector.

 Anticipating joblessness brought on by the pandemic, the Government on March 20 issued an advisory to all private and public companies, dissuading them from wage deduction and employment termination. It further stated that the salaries of workers shall not be deducted even if they were compelled to stay at home due to the pandemic. On March 29, the Government invoked the Disaster Management Act, 2005, and issued a notification under Section 10(2)(1) to State Governments and Union Territories requiring all industrial and commercial establishments to refrain from wage deduction, retrenchments and to ensure timely payment of wages.

However, mere announcements in the absence of Government Ordinances for payment of wages to employees are not legally binding in nature and lack effectiveness. Like in the case of Maharashtra, the notification is advisory in nature and should not be misconstrued as absolute or legally enforceable, by the employees. The rationale behind the order was to provide some financial respite to employees during a crisis. Unfortunately, State Governments have not issued any legally-binding Ordinances, therefore giving employers the liberty to lay their employees off.

 In the interim, employers should take into account alternatives to outright termination — such as reduced schedules, furloughs, or salary cuts. To further mitigate the stress emanating from job losses, there is severance pay, which serves as a temporary cushion for employees while they look for another job. Severance packages are taxable in the hands of the employee as profit in lieu of salary under Section 17(3) of the Income Tax Act. However, it may be exempt by virtue of Section 10(10C) of the said Act if compensation is received under a Voluntary Retirement Scheme, subject to certain conditions. Unfortunately, there are no special relief packages for employees laid off on the pretext of the pandemic, though partial relief afforded under Section 89 may be claimed if s/he is liable to pay tax in respect of compensation received on termination of employment. So, what should you do if you get laid off by your firm?

Consult your Human Resource department: This could be done even before you receive a letter of termination, just to know about the company’s future plans. If and when you receive a termination letter, you must consult the HR and find out whether it is a temporary or permanent measure.

Get a written acknowledgment: Irrespective of the nature of your notice, it is your duty to secure a written acknowledgment of the same. It is advisable to ask for the reason for such termination in the letter or e-mail itself.

 Consult your lawyer: You may approach your lawyer with the employment contract and letter of termination so that you are apprised of the potential remedies available to you. If in the future, the Government plans to give any relief package or implement a process of re-employing all those laid-off because of the lockdown, all the documentations will come in handy.

 Look for opportunities: In these distressing times, many organizations are resorting to collaborative practices by hiring laid-off employees so that the talent pool is not lost. This is termed as “People + Work Connect”, which is an employer-to-employer partnership. Keep yourself abreast of changes in the economy, specifically industries that directly impact your nature of work.

Know your situation: The best way to start planning for the future is to see your present situation — as is. Make a note of your basic expenses and chalk out a plan to be financially independent in tough times.

 Crashing economies, plummeting sales figures, coupled with the uncertainty of business redemption, are prompting many companies to terminate employment so as to save themselves from running out of business.

People scarred by unemployment are asking themselves, “What now?” Job loss can be a disturbing and difficult time, psychologically and financially, particularly with so many unknowns in our world right now. But professionals terminated by their employers must keep abreast of the key developments introduced by the Government and handle the forthcoming chapter in their career with confidence. The key to navigating the rough waters of COVID-19 is to remember that this is temporary and we are in this together.

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