8 Rights for Private Employees by the Indian Labour Laws

According to the recent supreme court judgment in 377 of Indian Penal Code 1860, LGBTQ ( lesbian, gay, bisexual and transgender queer) shall not be shown discrimination or derogate them in any manner.

Employment Agreement

These days the norm is to enter into an employment agreement which details out the terms of employment like, compensation, place of work, designation, work hours, etc. The rights and obligations of both the employer and employee are listed out clearly like non-disclosure of confidential information and trade secrets, timely payment, provident fund etc. In case of a dispute, the agreement also contains a mechanism for effective dispute resolution.

I remember when a client came to me with his first employment agreement after 30 years of service! He wanted me to have a look and tell him whether or not to agree to those terms. In a cursory glance, it was evident how one-sided the whole agreement was. From retrospective deductions and penalties to an ineffective dispute resolution mechanism, it was dreadful! The owner had made appointed himself as the binding authority in case of a dispute. After my advice, the client went and renegotiated and got his old terms of service renewed. But the point remains that without a written employment agreement in place, the employee does not have much protections afforded to him in case of a dispute.

Maternity Benefit

The Maternity Benefit Act, 1961, provides for prenatal and postnatal benefits for a female employee in an establishment. Post-2016 amendments, the duration of paid leave for a pregnant female employee has been increased to 26 weeks, including eight weeks of postnatal paid leaves.

In case of a complicated pregnancy, delivery, premature birth, medical termination, female employees are entitled to one month paid leave. In case of tubectomy procedure, only two weeks of additional paid leave is provided for.

Pregnant female employees cannot be discharged or dismissed on account of such absence. Such employees are not to be employed by the employer within six weeks of delivery or miscarriage. If dismissed, they can still claim maternity benefits.

In India, men do not get any paid paternity leave. The Central Government provides for child care leave and paid paternal leave. But in case of private sector, it is a discretionary right of the employer.

Contractual Employees also entitled to Maternity Benefits, Kerala High Court

Read judgment below

The Kerala High Court recently reiterated that women-employees are entitled to maternity leave, regardless of whether their employment is contractual or otherwise.

Allowing a petition filed by 35-year old Rasitha, who was denied maternity leave by the Calicut University on the ground that the terms of her contract did not envision the grant of such leave, Justice A Muhamed Mustaq held,

“The maternity benefit is not merely a statutory benefit or a benefit flowing out of an agreement. This court consistently held that it is attached with the dignity of a woman…. In Rakhi’s case (supra) it was held that a woman employee cannot be denied maternity benefits merely because her status is a contractual employee. Therefore, the University is bound to grant such benefits notwithstanding anything contained in the agreement of contract.”

Rasitha had been working as an employee at the Calicut University for a decade on a contract basis. In August 2017, her contract was renewed for another year.

While this was the case, the University denied her maternity leave, citing that since no such benefit was contemplated in her contract, at best she could only claim 15 days of casual leave and abstention from duty on account of medical conditions of maternity.

On the other hand, Justice Mustaq pointed out that there are several cases that have established that a woman cannot be compelled to choose between motherhood and employment. In particular, reference was made to the cases of Mini v Life Insurance Corporation of India and Rakhi PV and Others v State of Kerala & Another.

Notably, in Rakhi PV’s case, the Court had specifically held that contractual employees cannot be denied maternity leave merely because of their contractual status.

“In Rakhi’s case (supra) this Court has specifically referred to the claim of maternity leave due to women employees who are working under contract and this court held that such women cannot be denied the maternity benefits. It is submitted in the Bar that the judgment in Rakhi’s case (supra) was affirmed by the Division Bench as well.“

In view of these observations, the Court allowed Rasitha’s plea and directed the Calicut University to pay maternity benefits due to the Rasitha, as applicable in the case of other employees of the University, within two months.

Uttarakhand HC Strikes Down Rule Denying Maternity Leave For Third Child As Unconstitutional

Writ Petition No. 1778 of 2015 (S/S)

Smt. Urmla Masih Vs State of Uttarakhand & another

Read judgement below

The Uttarakhand High Court on Monday struck down as unconstitutional a State rule denying maternity leave to female government employees for their third child. The order was issued by Justice Rajiv Sharma on a petition filed by one Ms. Urmla Masih, challenging the second proviso to Fundamental Rule 153 of the Financial Hand Book of the U.P. Fundamental Rules, as adopted by the State of Uttarakhand. The proviso disentitled from maternity leave female government employees who have two or more living children.

Ms. Masih had applied for maternity leave for almost five months in 2015, but had been denied the same on the ground that maternity leaves can only be granted for the first two children and not for the third child.

Allowing the petition, the Court opined that the proviso runs contrary to Section 27 of the Maternity Benefit Act, 1961, which gives primacy to the Act when it comes to laws and agreements inconsistent with its provisions. It further ruled that the proviso goes against the letter and spirit of Article 42 of the Constitution of India, which stipulates that the State shall make provision for securing just and humane conditions of work and for maternity relief.

Furthermore, Justice Sharma relied on the judgment in the case of Ruksana v. State of Haryana & others, wherein Punjab and Haryana High Court had struck down a similar Punjab Civil Services rule, which denied the benefit of maternity leave on the birth of a third child.

The petition was therefore allowed, with Justice Sharma ruling, “Thus, this Court is also of the considered view that second proviso of Fundamental Rule 153 is not in conformity with Section 27 of the Maternity Benefit Act, 1961 and is also against the spirit of Article 42 of the Constitution of India.

Accordingly, the writ petition is allowed. The proviso Second of the Fundamental Rule 153 of the U.P. Fundamental Rules, as adopted by the State of Uttarakhand is declared ultra vires and unconstitutional and the same is struck down.”

Provident Fund

Employee Provident Fund Organisation (EPFO) is the national organisation which manages this retirement benefits scheme for all salaried employees. Any organisation with more than 20 employees is legally required to register with EPFO.

Any employee can opt out of the scheme provided they do it at the beginning of their career. The amount cannot be withdrawn at will. The rules limit the withdrawal amount and term of years in service. Once registered, both employer and employee have to contribute 12 % of the basic salary to the fund. If the employer does not pay his share or deduct the entire 12 % from the employee’s salary, he can be taken to PF Appellate Tribunal for redressal.

The amount can be withdrawn subject to a waiting period of maximum two months for emergent needs and necessary expenses. The rules specify limits of withdrawal and the necessary years of service for each purpose. An employee can withdraw a maximum of 3 times, and if withdrawn before five years the amount becomes taxable. A list of withdrawal rules of EPF .

EPF withdrawal: How to withdraw 75% money from PF account? Check step-by-step guide

EPF withdrawal: The Employees’ Provident Fund Organisation (EPFO) announced that its members can now withdraw 75 per cent of their funds after one month of unemployment and maintain their PF account with the body. The retirement fund body also gave an option to its members to withdraw the remaining 25 per cent of their fund after two months of unemployment.

Labour Minister Santosh Kumar Gangwar, who is also the Chairman of EPFO’s Central Board of Trustees decided to amend the scheme to allow members to take advance from their account on one month of unemployment. They can withdraw 75 per cent of the funds as advance from their account after one month of unemployment and keep the account with the EPFO.

The minister was of the view that this new provision would give an option to the members to keep their account with the EPFO, which they can use after regaining employment again.

What is the process to withdraw 75% money from account?

Step 1- Sign in to the UAN Member Portal with your UAN and Password.

Step 2- From the top menu bar, click on the ‘Online Services’ tab and select ‘Claim (Form-31, 19 & 10C)’ from the drop-down menu.

Step 3- The next page will show Member Details, KYC Details and Service Details. Click the ‘Proceed for Online Claim’ button.

Step 4- You will be redirected to the Claims Section. You will find more details such as PAN, Mobile Number, UAN, etc. Choose the type of claim- withdraw PF only or withdraw pension only.

Step 5- Fill out the claim form carefully. Once completed, an OTP will be sent to your registered mobile number which, when entered in the form, will initiate the withdrawal claim. When the claim form is successfully submitted, an SMS notification will be sent to your registered mobile number. Once the claim is processed, the amount will be transferred into your bank account.

At the time of filing an online withdrawal claim, you will find two options-

– Only PF Withdrawal- Form 19

– Only Pension Withdrawal- Form 10C

Composite Claim Form:

When applying for the withdrawal offline, you are required to fill out the Composite Claim Form which serves the purpose of three forms- Form 19 (For Final PF Settlement), Form 10C (For Pension Withdrawal) and Form 31 (For Part Withdrawal of PF amount).

Gratuity

The Payment of Gratuity Act, 1972 provides a statutory right to an employee in service for more than five years to gratuity. Gratuity is paid as 15 days of salary for every year of service of an employee done in that organization. It is one of the retirement benefits given to the employee. It is a lump sum payment made in a gesture of gratitude towards the employee for their service. The amount of gratuity increases with increment and number of years of service.

Gratuity payment = Last month salary X 15 (days) X Number of years of service

26 (working days)

• • Monthly salary= last month drawn salary by the employee.

  • 26 = total number of working days in a month.

  • 15 = number of days in half of the month.

[Sec 4(3)] The maximum amount of gratuity payable to an employee should not exceed Rs.3,50,000/- rupees.

(According to the latest 2010 amendment the maximum gratuity payable amount was increased to

Rs. 10,00,000/-)

According to the (THE PAYMENT OF GRATUITY (AMENDMENT) ACT, 2018) The maximum amount of gratuity payable to an employee should not exceed Rs. 20,00,000/- rupees.

However, the employee if dismissed for proven lawless or disorderly conduct, forfeits this right upon dismissal.

Gratuity Payable On Resignation of employee After 5 Years Of Continuous Service: Supreme Court of India

Read judgment below

The Court was considering an appeal filed by Rajasthan State Road Transport Corporation Ltd. against the High court judgment which had allowed the writ petition filed by the wife of a deceased employee claiming the retiral benefits.

After his application seeking voluntary retirement was not acted upon, the employee had submitted his resignation as he claimed to be under depression and his health condition had further deteriorated. This resignation was accepted. It was after he died, his wife approached the High Court. The High Court directed to treat it as voluntarily retirement and release the retiral benefits to which he was entitled.

Allowing the appeal, the bench observed that pending disciplinary proceedings if an application for voluntary retirement is submitted there would be no absolute right seeking for acceptance since the employer if keen on proceeding with the inquiry would be entitled not to consider the application for voluntary retirement. However, the bench observed:

" As rightly pointed out by the learned counsel for the respondents, Section 4(1)(b) of the Payment of Gratuity Act, 1972 provides that the gratuity shall be payable if the termination of employment is after 5 years of continuous service and such termination would include resignation as well. In that view, if the gratuity amount has not been paid to the respondent's husband, the liability to pay the same would subsist and the respondent No. 1 will be entitled to receive the same in accordance with the provisions of the Act. In that regard it is directed that the appellants shall accordingly calculate the gratuity and pay the same to the respondent No. 1, if already not paid. Such payment shall be made within four weeks from this date"

https://www.livelaw.in/top-stories/gratuity-payable-on-resignation-also-155305

Withholding the payment of gratuity during the pendency of the disciplinary proceedings for ordering the recovery from gratuity.: Supreme Court of India.

Chairman ­cum ­Managing Director, Mahanadi Coalfields Limited Vs Sri Rabindranath Choubey

CIVIL APPEAL NO. 9693 OF 2013

Read Judgement Below

Facts of the case

Respondent was an employee occupying the position as Chief General manager in the appellant coal company. There was very serious allegation of misconduct alleging dishonestly causing coal stock shortages amounting to Rs.31.65 crores and thereby causing substantial loss to the employer. The employee was thereafter suspended from service, pending departmental enquiry against him, attained 60 years of age and got superannuated. later his payment of gratuity was withheld by the employer and the said case came before the Supreme Court of india.

Court held that

Several service benefits would depend upon the outcome of the inquiry, such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scot-free after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6).

"Withholding the gratuity payment during the pendency of the disciplinary proceedings of an employee and it further permits for ordering the recovery from gratuity of the whole to be paid to an employee or recovery of gratuity to the extent of any pecuniary loss caused to the company, if have been guilty of offences/misconduct as mentioned in sub­section (6) of Section 4 of the Payment of Gratuity Act 1972, or to have caused pecuniary loss to the company by misconduct or negligence, during his service".

Y.K. Singla v. Punjab National Bank and others (2006) 8 SCC 514 ,

The position has been reiterated holding that the employee has to make a choice between the two for drawing the benefit of gratuity and the choice has a statutory protection under sub-Section (5) of Section 4 of the Act.

Forfeiture of gratuity is permissible only if the termination of an employee is for any misconduct which constitutes an offence involving moral turpitude, and convicted accordingly by a court : Supreme Court of India

Read Judgment below

CIVIL APPEAL NO. 8251 OF 2018

(Arising out of S.L.P.(Civil) No. 3852/2017)

Facts of the Case

Respondent is a branch manager in the UNION BANK OF INDIA and disciplinary proceedings were initiated against him on the misconduct proved against you amounts to acts involving moral turpitude. the following are the charges:

a) Failure to take all steps to ensure and protect the interest of the Bank.

b) Failure to discharge his duties with utmost devotion, diligence, honesty and integrity.

c) Doing acts unbecoming of an Officer Employee.

On the charges being duly established, the respondent was dismissed from service on 03.06.2004 and his gratuity was forfeited by order dated 20.04.2004 in accordance of the provisions of section 4, subsection 6(b)(ii) of the Gratuity Act, 1972.

The dismissal and forfeiture were the subject matters of challenge before the Court.

Court held that

Though the learned Counsel for the appellant-Bank has contended that the conduct of the respondent-employee, which leads to the framing of charges in the departmental proceedings involves moral turpitude, we are afraid the contention cannot be appreciated. It is not the conduct of a person involving moral turpitude that is required for forfeiture of gratuity but the conduct or the act should constitute an offence involving moral turpitude. To be an offence, the act should be made punishable under law. That is absolutely in the realm of criminal law. It is not for the Bank to decide whether an offence has been committed. It is for the court. Apart from the disciplinary proceedings initiated by the appellant- Bank, the Bank has not set the criminal law in motion either by registering an FIR or by filing a criminal complaint so as to establish that the misconduct leading to dismissal is an offence involving moral turpitude. Under sub-Section (6)(b)(ii) of the Act, forfeiture of gratuity is permissible only if the termination of an employee is for any misconduct which constitutes an offence involving moral turpitude, and convicted accordingly by a court of competent jurisdiction.

In the present case, there is no conviction of the respondent for the misconduct which according to the Bank is an offence involving moral turpitude. Hence, there is no justification for the forfeiture of gratuity on the ground stated in the order dated 20.04.2004 that the “misconduct proved against you amounts to acts involving moral turpitude”.

To sum-up, forfeiture of gratuity is not automatic on dismissal from service; it is subject to sub-Sections (5) and (6) of Section 4 of The Payment of Gratuity Act, 1972.

Fair Salary & Bonus for employees

The whole point of providing service for an employee is fair and appropriate remuneration. Article 39(d) of the Constitution provides for equal pay for equal work. The laws under The Equal Remuneration Act, The Payment of Wages Act, mandates timely and fair remuneration of an employee. If an employee is not receiving his/her remuneration as per the employment agreement, can approach the Labour Commissioner or file a civil suit for arrears in salary. An employee cannot be given wages less than the legal minimum wages, as per law.

Payment of bonus

Irrespective of loss or profits to an organization must pay Bonus to its employees who's salary is up to Rs. 21000/- according to the procedure envisaged in the Payment of Bonus Act, 1965.

Eligibility: Any employee who draws salary or wage up to Rs. 21,000 is having right for claiming bonus

Bonus calculation purpose: according to the 2015 Amendment, Rs. 7000/- is considered as Ceiling amount ( maximum limit ) as wage or salary for calculation of bonus.

Percentage of bonus: 8.33% minimum or 20% maximum of salary or wage.

Appropriate Working Hours and Overtime

All employees have a right to work in a safe workplace with basic amenities and hygiene.

The Factories Act provides and the Shop and Establishment Acts (state wise) protects the rights of the workers and non-workmen.

Under the most recent laws, an adult worker shall work over 9 hours per day or 48 hours per week and overtime shall be double the regular wages. A female worker can work from 6 am to 7 pm. This can be relaxed to 9.30 pm upon explicit permission, and payment for overtime and safe transportation facility. Apart from this weekly holiday, half an hour break and no more than 12 hours of work on any given day is mandated. The working hours for child workers are limited to 4.5 hours a day.

Right to Leaves

An employee has the right to paid public holidays and leaves such as casual leave, sick leave, privilege leave and other leaves. For every 240 days of work, an employee is entitled to 12 days of annual leave. An adult worker may avail one earned leave every 20 days whereas its 15 days for a young worker. During notice period an employee can take leaves for emergencies, provided the employment agreement does not bar it.

Prevention of Sexual Harassment at workplace

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 protects women at the workplace from sexual harassment. The Indian Penal Code also provides a penalty of up to three years imprisonment with or without fine, for sexual harassment.

According to [Section 2 n] of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 "sexual harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—

i. physical contact and advances; or

ii. a demand or request for sexual favours; or

iii. making sexually coloured remarks; or

iv. showing pornography; or

v. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

For organisations with ten or more employees, there has to be an internal complaint committee constituted for the aid of the victims of sexual harassment. The law mandates that a grievance redressal policy and mechanisms be in place in such organisations which outlines what constitutes sexual harassment, penalties, redressal mechanism, etc. The committee should also include a senior woman as a member, two other employees as members and a non-governmental member. The detailed duties of an employer are available in this article.

My attempt here is, simply to demystify the jargons used with an employee who does not fully understand and agree to it anyway. The HR or the company is not always going to educate you about all this. It is not their job, but yours to learn about your rights.

This is by no means an exhaustive list of rights and obligation of an employee under the laws and regulations. There are so many laws governing different aspects of labour and employment-related laws.

An incident of sexual harassment of a female at a place of work, amounts to violation of her fundamental right to gender equality under the article 16(2) of the Indian Constitution.

Nisha Priya Bhatia v. Union of India & Anr. CA No. 2365/2020 (Supreme Court of India)

" The approach of law as regards the cases of sexual harassment at workplace is not confined to cases of actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace."

Landmark case and judgement by the Supreme Court of India on sexual harassment

Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997

In the Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997, Supreme Court of India took serious note on sexual harassment on woman and issued directions to ensure laws and guidelines for safety of women at workplace.

Further the Supreme Court of India (SCI) stated that sexual harassment and woman is clear violation of fundamental rights of the woman and also defined what is meant by sexual harassment on woman at workplace and what sort of acts are treated as sexual harassment and shall be punishable seriously. The acts which are treated as sexual harassment and woman at workplace are "Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advance, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided. "

The SCI in its judgement clearly stated that the fundamental rights in the Constitution of India mentioned below should not be deprived by any woman

• • Article 14: Equality before the law

  • Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

  • Article 19 (1)(g): Right to practice one’s profession, or to carry on any occupation, trade or business

  • Article 21: Right to life and personal liberty