Saturday, 10 June 2017

Update your FCRA Bank Details



The Ministry of Home Affairs (MHA) after publishing (on 12th May 2017) a list of 18,523 NGOs whose annual returns are allegedly not on the FCRA department’s records, has now published (on 7th June 2017) names of 2,025 NGOs who the department feels need to ‎update their FCRA Bank details. 



Click here to view MHA’s aforesaid circular:

The names of the 2,025 NGOs have been listed alphabetically and the list can be viewed at:

MHA has given these NGOs 15 days’s time to update the details. Details regarding FCRA Designated and FCRA Utilization accounts should be filled up online through Form FC6.‎

Even if your NGO is not listed among these unfortunate 2,025, it would be good to check online if your FCRA Bank details on MHA’s online portal are accurate. One way to do this is by going to https://fcraonline.nic.in and clicking on the tab “Intimation – Annual Returns (FC 4)” and after entering your user id, password and Access Code verify if details regarding your FCRA Designated and FCRA Utilization accounts are accurate and if not go to Form FC6 and update the Account Number, Bank Name, Branch Name & Address and the IFSC code of your Bank. In case your NGO has FCRA Utilization Accounts, this is the time to update that information too.

We also take this opportunity to remind those among the 18,523 NGOs listed by MHA to upload their missing FCRA returns (for FY 2010-11 to FY 2014-15) online before 14thJune 2017.

Hurry! Barely a few days remain!!

Monday, 5 June 2017

Niti Aayog & NGO-DARPAN - Do NGOs need to Register?

Niti Aayog & NGO-DARPAN - 
This article is in response to a number of queries that we have recently received from within the voluntary sector regarding Niti Aayog and whether it is mandatory for charitable organisations / NGOs to register themselves on the NGO-Darpan platform.

What is Niti Aayog?
Niti Aayog came into existence on 1st January 2015 when the Government of India under the leadership of Prime Minister Mr. Narendra Modi abolished the 65 years old Planning Commission. It is “The National Institution for Transforming India”, a premier policy ‘Think Tank’ of the Government of India, providing both directional and policy inputs. At the core of NITI Aayog’s creation are two hubs – ‘Team India Hub’ and the ‘Knowledge and Innovation Hub’. The Team India Hub leads the engagement of states with the Central government, while the Knowledge and Innovation Hub builds NITI’s think-tank capabilities.
 
What is NGO-DARPAN?
NGO-Darpan (NGO Mirror) is a platform that provides space for interface between Voluntary Organisations / NGOs and key Government Ministries / Departments / Government Bodies. It is a free facility offered by NITI Aayog in association with National Informatics Centre to bring about greater partnership between government & voluntary sector and foster better transparency, efficiency and accountability.
This portal enables VOs / NGOs to enroll centrally and thus facilitates creation of a repository of information about VOs / NGOs, Sector / State wise. The Portal facilitates VOs / NGOs to obtain a system generated Unique ID, as and when signed.

The Unique ID is mandatory for NGOs wanting to apply for grants under various schemes of Ministries/Departments/Governments Bodies.
As of the moment 28,845 NGOs enrolled on this portal.

Is it Mandatory to Register on NGO-Darpan?
In a recent hearing, the Supreme Court of India had asked the Central Government to explore the possibility of a new law to regulate fund utilization by NGOs who receive government grants. However, instead, the government has framed guidelines requiring NGOs and other voluntary organisations to register with Niti Aayog in order to receive funding under various government schemes and thus, Niti Aayog is now appointed as the nodal agency for the purpose of registration and accreditation of NGOs/voluntary organisations seeking funds from the government.

NGO-Darpan platform is an upgraded version of a similar initiative started by the former Planning Commission in 2006. However, back then, registering on the Planning Commission’s platform was not mandatory, whereas now registering on NGO-Darpan has been made mandatory for NGOs aspiring to secure funding support under various Government Schemes.

NGO-Darpan requires several disclosures including the Aadhaar number and PAN of chief executives of NGOs.

Conclusion: Every NGO need not register on NGO-Darpan. However, registering on NGO-Darpan has been made mandatory for NGOs aspiring to secure funding support under various Government Schemes.

Thursday, 1 June 2017

Right to Information - CIC orders details of welfare schemes to be placed on website

In an effort to bring about transparency and accountability in the implementation of State Government Schemes, Maharashtra’s Chief Information Commissioner (CIC) Ratnakar Gaikwad has directed all public authorities in the State to upload “complete information” about all welfare schemes being implemented by various departments on their respective websites before April 30, 2017. 
 
We are not sure if this has been implemented by all departments of the Government and former CIC and leading Right to Information (RTI) activist Shailesh Gandhi who had originally filed the complaint has in an email to CAP, requested “all NGOs to check specific departments and see if the order has been implemented”. Gandhi has added, “We have a great order from a responsive commission and we must now ensure and enforce its implementation.”

Gaikwad, who invoked powers vested with him under section 19 (8) (a) of RTI Act to issue a directive to the Maharashtra government, stated in his order: “Section 4 (1) (b) of Right to Information Act, 2005 is the heart and soul of the RTI Act, which makes it mandatory to all public authorities to disclose information about 17 aspects of public authorities which, inter alia, covers schemes implemented by public authorities, and list of beneficiaries to be displayed on the websites of respective public authority”.

To ensure compliance with this order, Gaikwad has also provided a detailed format in which information should be made public on the websites by every government department. Details to be included are: name of the scheme, its salient features, especially budget provisions, number of beneficiaries likely to be covered, eligibility criteria, format of application for the scheme, date of receipt of application, date of approval, and date of rejection with brief reasons for rejection. 
 
Public welfare schemes otherwise largely remain a secret and there have been alleged cases of large-scale irregularities and financial misappropriation. Besides, there are many welfare schemes of various government and municipal bodies but, often, intended beneficiaries are not aware of these schemes, their eligibility criteria or how to avail of them. The whole exercise of floating schemes is futile if beneficiaries are unaware about the same or have to run from pillar to post to get updates from officials in the concerned departments.
It is thanks to former Central Information Commissioner and leading Right to Information (RTI) activist Shailesh Gandhi that people will now have access to this vital information, at the click of the mouse. 

Stay connect to this blog to receive news & views from the social sector.  

Monday, 29 May 2017

“NGO Not an Industry, states court, dismissing case”

This has reference to a Report in the Mumbai Mirror of Sunday, 28th May 2017 captioned: “NGO Not an Industry, states court, dismissing case”



  
The report states: “Seven years after an NGO employee approached the Labour Court alleging unfair labour practices in the organisation, which is run by an ex-MLA, the court has dismissed the complaint saying that salaried NGO workers cannot approach Labour Courts.”

In our view, this matter has been examined over three decades ago by the Supreme Court in the landmark case “Bangalore Water Supply and Sewerage Board v. R. Rajappa” and whether a charitable institution is an industry or not is now a settled case law! The recent verdict can easily be challenged at a higher court of law.

What is Industry?
Section 2(j) of the Industrial Disputes Act, 1947 defines ‘Industry’ as “any business, trade, undertaking, manufacture, or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen”.
The first principle we need to understand is, industry exists only when there is relationship between employers and employees.
The Supreme Court had held: “Any activity will be industry if it fulfills the ‘triple test’, as under:
  1. Systematic and organized activity;
  2. With the cooperation between Employers and employees;
  3. For the production and distribution of good and services whether or not capital has been invested for this activity.”
The Supreme Court was clear in the understanding that it is immaterial whether or not there is profit motive or whether or not there is capital. If the organization is a trade or business it does not cease to be one because of philanthropy overriding or overshadowing the triple test and such organizations therefore cannot be exempted from the scope of definition of industry.
There is also the “Dominant nature” test. Where there are complex activities, the test would be predominant nature of services and integrated nature of departments.

The exceptions to industry are:
  • Casual activities (because they are not systematic);
  • Small clubs, cooperatives, research labs, gurukuls which have an essentially volunteer or non-employee character;
  • Single door lawyer taking help from clerk (because there is no organized labour);
  • Charitable activities carried on through volunteers e.g. free legal or medical service;
  • Sovereign functions, i.e., maintenance of law and order, legislative functions and judicial function.
Charitable Institutions
Charitable institutions fall under three categories:
  1. Those that generate profit (or surplus income), but the profits or surplus income is used only for charitable purposes;
  2. Those that make no profit or surplus income, but, hire the service of employees as in any other business, but the goods/ services which are the output, are made available at a low/subsidized or no cost to the indigent poor; and
  3. Those that are driven by mission to serve humanity and fulfilled by men and women who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction.
The first two categories are industries, but not the third, on the assumption that they all involve co-operation between employers and employees.

What is an Undertaking?
Ultimately, it is the character of the activity in question which attracts the provisions of Sec. 2 (j). Who conducts the activity (a business or a charitable institution) and whether it is conducted for profit or not, does not make any material difference. An activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an ‘undertaking’.

Activities that have no commercial implications, such as hospitals with philanthropic motives would be covered by the expression ‘undertaking’. The mere fact that Government or a charitable trust runs such activity is immaterial.

In Management of Safdarjung Hospital v. Kuldip Singh, it was held that a place of treatment of patients run as a department of the government was not an industry because it was a part of the functions of the government. Charitable hospitals run by Government or even private associations cannot be included in the definition of industry because they have not embarked upon economic activities analogous to trade or business. If hospitals, nursing home or a dispensary is run as a business in a commercial way, there may be elements of industry.

In Dhanrajgiri Hospital v. Workmen, the main activity of the hospital was imparting of training in nursing and the beds in the hospital were meant for their practical training. It was held not to be an industry, as it was not carrying on any economic activity in the nature of trade or business.

However, in Bangalore Water Supply v A. Rajappa, the Supreme Court overruled Safdarjung Hospital and Dhanrajgiri Hospital cases, and approved the law laid down in Hospital Mazdoor Sabha case. It was held that hospital facilities are surely services and hence industries. The government departments while undertaking welfare activities cannot be said to be engaged in discharging sovereign functions and hence outside the ambit of Sec.2(j) of the Act.
Therefore, a charitable hospital run by a private trust, offering free services and employing a permanent staff is an industry as there is a systematic activity, a cooperation between employer and employees and rendering of services which satisfies human wants and wishes.

Conclusion
Is NGO and Industry or not?
Yes, NGO is an industry if there is a systematic activity, a cooperation between employer and employees and rendering of services which satisfies human wants and wishes. It matters not if the NGO runs solely on grants or donations or whether there is capital, profit or surplus or otherwise. 

for any further queries, write to connect@capindia.in 



Thursday, 25 May 2017

Final Opportunity for NGOs to file FCRA Returns for FY 2010-11 to 2014-15

Upload Missing Returns without penalty or compounding fees

Unnecessary panic and paranoia has once again gripped the voluntary sector in India thanks to the Public Notice dated 12th May 2017 issued by the Ministry of Home Affairs. To read the notice please go to: https://fcraonline.nic.in/home/PDF_Doc/fc_Notice_12052017.pdf

According to the aforesaid Notice, MHA is still processing renewal applications, but, finds that a number of organizations which have applied for renewal of their registration have not uploaded their Annual Returns from FY 2010-11 to FY 2014-15 and thus renewal of registration of such organizations cannot be granted unless the Annual Returns are uploaded by these organizations.



MHA had made filing of online FCRA returns mandatory only from FY 2015-16. For previous financial years MHA was officially accepting hard copies sent by post, but, lacked the wherewithal to feed the data electronically into their own system. For quite some time, MHA used to hire data entry operators to transfer data received in hard copy. However, this process and system was random and often inaccurate.

Several thousand NGOs who have regularly filed annual returns by post (and not online) between FY 2010-11 and FY 2014-15 have not been granted renewal of their registration mainly because in the MHA’s system, the data from hard copy has simply not been transferred electronically to the system.

Therefore, MHA has now published a list of 18,523 NGOs whose annual returns are not on the FCRA department’s records or to put it more accurately, on MHA’s computer system. In a rather smart move, MHA has now asked these 18,523 NGOs to upload their missing returns online within a grace period of one month (i.e. from 15th May 2017 to 14th June 2017). MHA has “generously” added that no compounding fees will be charged during this period for the default in filing the annual returns. In other words, although these NGOs may have filed their returns in hard copy with proof of posting the same, they must now go online and help MHA to update their system and after that their application for renewal will be processed and hopefully granted for a period of five years.

Click on the following link to see the list of 18,523 NGOs:

We also recommend that even NGOs who have already been granted renewal should check this list just in case their returns are missing for any particular year between FY 2010-11 and FY 2014-15.

How to check?


There is no need for you to scan the entire list. MHA has provided a search option. Click Ctrl and F simultaneously on your keyboard and the search box will appear in the right-hand corner. In this box type either your organization’s name or your FCRA registration number and if your organization is unfortunately on this list it will open on that page with your organization’s name highlighted. You may then find that on MHA’s system you have not filed returns for either one or more years out of the five listed financial years between FY 2010-11 to FY 2014-15. Your immediate next step should be to log in to your FCRA account and file the missing returns online in Form FC 4.

Another way to do this is to go to https://fcraonline.nic.in and under FCRA Online Forms column (left hand side) Click the tab “Intimation – Annual Returns (FC 4)”. Next, enter user id, password and Access Code. Scroll down and you will find a table with the five financial Block Year and the status under the head “Process” either as “FCRA Annual returns has been submitted for the block year: 2010-2011” or “click here to filing annual returns for the block year :2010-2011”. Click on the latter and the window for filing the return for the particular year will open in Form FC 4.

The user guide for filing annual return in Form FC 4 can be found at: https://fcraonline.nic.in/home/Documents/Instruction/FC4_returns.pdf


For technical assistance one may write to: support-fcra@gov.in or call 011 23438042.

We, at CAP, would also be pleased to clarify any doubts or concerns that you may have with regard to this issue. Write in to connect@capindia.in