Employers Rights Under Labour Laws

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Employers Rights UnderEmployers Rights UnderLabour LawsLabour Laws

Vinod Bidwaik

mailto:[email protected]

mailto:[email protected]

http://vinodtbidwaik.blogspot.com/

Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com

Employment ContractEmployment Contract

•• Contract: EmployeeContract: Employee--Employer relationship.Employer relationship.•• Appointment letter/settlement are contracts.Appointment letter/settlement are contracts.•• Employment conditions under Model/CertifiedEmployment conditions under Model/Certified

Standing Orders are accepted rules & regulationsStanding Orders are accepted rules & regulationsas per the contract.as per the contract.

•• A workman/employee is bound to comply withA workman/employee is bound to comply withthe terms and conditions of service.the terms and conditions of service.


Basic Rules of EmploymentBasic Rules of Employment

•• An employee can not work in more than oneAn employee can not work in more than oneestablishment.establishment.

•• An employee can not run his own businessAn employee can not run his own businessduring working hours.during working hours.

•• Employee have to take prior permission fromEmployee have to take prior permission fromthe employer for running his own business,the employer for running his own business,profession.profession.


Recognized forms of relationshipRecognized forms of relationship•• EmployerEmployer’’s right to select an employees right to select an employee•• EmployerEmployer’’s right to pay wages or others right to pay wages or other

remunerationremuneration•• EmployerEmployer’’s right to control the method of doings right to control the method of doing

work, andwork, and•• EmployerEmployer’’s right of suspension, transfer ors right of suspension, transfer or

dismissal of the employee.dismissal of the employee.


Employees ObligationsEmployees Obligations

•• To work faithfullyTo work faithfully•• An employee must observe honesty & commitAn employee must observe honesty & commit

no fraud.no fraud.•• An employee must have to be regularAn employee must have to be regular•• To perform designated workTo perform designated work•• Not to leave work earlierNot to leave work earlier•• Is to bound to give REQUIRED outputIs to bound to give REQUIRED output•• Not to negligent & should be efficient.Not to negligent & should be efficient.


Conditions justifying summery dismissalConditions justifying summery dismissal

The Bombay High Court has enumeratedThe Bombay High Court has enumeratedbroadly the following specific illustrative cases ofbroadly the following specific illustrative cases ofthe acts of misconduct, the commission of whichthe acts of misconduct, the commission of whichwould justify the dismissal of the delinquentwould justify the dismissal of the delinquentemployeeemployee..

a)a) If act or conduct is prejudicial or likely to beIf act or conduct is prejudicial or likely to beprejudicial to the interest of the master or to theprejudicial to the interest of the master or to thereputation of the master.reputation of the master.

b)b) If the act or conduct is inconsistent or incompatibleIf the act or conduct is inconsistent or incompatiblewith the due or peaceful discharge of his duty to hiswith the due or peaceful discharge of his duty to hismaster.master.


Conditions justifying summery dismissalConditions justifying summery dismissal……..Continued..Continued

c)c) If the act or conduct of the servant makes it unsafeIf the act or conduct of the servant makes it unsafefor the employer to retain in service.for the employer to retain in service.

d) If act or conduct of the servant is so grossly immorald) If act or conduct of the servant is so grossly immoralthat all reasonable men will say that the employee canthat all reasonable men will say that the employee cannot be trusted.not be trusted.

e)e) If the act or conduct of the employee is such that theIf the act or conduct of the employee is such that theemployer can not rely on the faithfulness of hisemployer can not rely on the faithfulness of hisemployee.employee.

f)f) If the act or conduct of the employee is such as toIf the act or conduct of the employee is such as toopen before him temptations for not discharging hisopen before him temptations for not discharging hisduties properly.duties properly.


Conditions justifying summery dismissalConditions justifying summery dismissal……..Continued..Continued

g)g) If the employee is abusive or if he disturbs theIf the employee is abusive or if he disturbs thepeace at the place of employment.peace at the place of employment.

h)h) If he is insulting and insubordinate to such aIf he is insulting and insubordinate to such adegree as to be incompatible with thedegree as to be incompatible with thecontinuance of the relation of employee &continuance of the relation of employee &employer.employer.

i)i) If the employee is habitually negligent inIf the employee is habitually negligent inrespect of the duties for which he is engaged.respect of the duties for which he is engaged.

j)j) If the neglect of the employee, though isolatedIf the neglect of the employee, though isolatedtends to cause serious consequences.tends to cause serious consequences.


EmployerEmployer’’s Rights Right

•• Employee has the right to transfer the employeeEmployee has the right to transfer the employee•• No right to be posted at a place of oneNo right to be posted at a place of one’’s choice.s choice.

An employee has to work any place as directed



•• If an employee shows constant indifferenceIf an employee shows constant indifferencetowards work then the employer can warn himtowards work then the employer can warn himto improve.to improve.

•• If an employee is not improved, after severalIf an employee is not improved, after severalwarnings, he can be removed.warnings, he can be removed.

(Bharat Kala Kendra Pvt Ltd. V. R K(Bharat Kala Kendra Pvt Ltd. V. R K BawejaBaweja & others Delhi HC.1980)& others Delhi HC.1980)

An employee should not show indifference to work



•• Dishonesty are 2 different thingsDishonesty are 2 different things•• If due to unlawful activities of any employee theIf due to unlawful activities of any employee the

organization is not getting what is legally due to it, thenorganization is not getting what is legally due to it, then•• The organization is very much within its right to takeThe organization is very much within its right to take

action against such employeeaction against such employee

An employee must observe honesty & commitno fraud



•• Regularity: An essence of employment.Regularity: An essence of employment.

•• Absence from duty tantamount to misconduct.Absence from duty tantamount to misconduct.•• Dismissal of employee justified in premise ofDismissal of employee justified in premise of

habitual and frequent absence.habitual and frequent absence.(M(M ArunagiriArunagiri V. Bata India Ltd, 1991, LLR 71, Madras High Court)V. Bata India Ltd, 1991, LLR 71, Madras High Court)

•• Punctuality: an implied condition of service.Punctuality: an implied condition of service.

An employee must have to be regular



•• Late attendance is absence with leave for the periodLate attendance is absence with leave for the periodbetween the time the employee is required to arrive andbetween the time the employee is required to arrive andthe time he actually does arrive and as a species ofthe time he actually does arrive and as a species ofunauthorized absence, it too is a misconduct.unauthorized absence, it too is a misconduct.

•• Habitual late attendance constitutes misconduct.Habitual late attendance constitutes misconduct.•• Grace period given should not be considered as a right.Grace period given should not be considered as a right.•• If an employee continues to come late in spite ofIf an employee continues to come late in spite of

warnings and other actions such as suspension etc, hiswarnings and other actions such as suspension etc, hisdismissal is justified.dismissal is justified.

An employee must observe punctuality inattendance



•• An employee should not absent when his leaveAn employee should not absent when his leaveis not sanctionedis not sanctioned

•• An employee must send medical certificate forAn employee must send medical certificate foravailing sick leave.availing sick leave.

•• Employee, while availing leave has to apply forEmployee, while availing leave has to apply forthe same and give reasons for availing leave.the same and give reasons for availing leave.

•• The reasons for availing leave should be clearThe reasons for availing leave should be clearand notand not veguevegue..

Must rules for leave



•• Unless leave is not applied for the question of its sanctionUnless leave is not applied for the question of its sanctionwould not arise.would not arise.

•• Employer can insist on production of medical certificate.Employer can insist on production of medical certificate.•• Medical certificate should be submitted at the earliest stage.Medical certificate should be submitted at the earliest stage.•• Medical certificate byMedical certificate by VaidVaid/Hakim in village may be/Hakim in village may be

recognisedrecognised,,•• However management can ask him to produce theHowever management can ask him to produce the

certificate of a govt. doctor and he does not produce thecertificate of a govt. doctor and he does not produce thecertificate then in that case he is in fault.certificate then in that case he is in fault.

(Upper India Sugar Mills Ltd. Vs.(Upper India Sugar Mills Ltd. Vs. KhatauliKhatauli V & otherV & otheremployees, 1951, II, LLJ 38 HC,employees, 1951, II, LLJ 38 HC, LucknowLucknow))




•• It is not a rule that registered medical practitionerIt is not a rule that registered medical practitionershould be an Allopathic Doctor. Even if there was suchshould be an Allopathic Doctor. Even if there was suchrule that would amount to discrimination.rule that would amount to discrimination.

•• Employee can be produced before a doctor forEmployee can be produced before a doctor formedical check up.medical check up.

•• Employer within his rights can reject the medicalEmployer within his rights can reject the medicalcertificate as sent by the employee and can get himcertificate as sent by the employee and can get himexamined by another doctor. However doctorexamined by another doctor. However doctor’’s fee wills fee willbe paid by the employer.be paid by the employer.

((CanaraCanara Bank Staff Union & Another V. Union of India,Bank Staff Union & Another V. Union of India,1998, LLR 545,1998, LLR 545, KerlaKerla HC)HC)



An employee can not over stay leaveAn employee can not over stay leave

•• An employee can not over stay the leave.An employee can not over stay the leave.•• The reasons for over stay should be reasonable.The reasons for over stay should be reasonable.•• If the request/application is not sanctioned afterIf the request/application is not sanctioned after

over stay for several months and employee doesover stay for several months and employee doesnot report to duty, employee has right tonot report to duty, employee has right toterminate the employee as per the provisions ofterminate the employee as per the provisions ofmodel standing orders.model standing orders.



An employee can not claim leave asAn employee can not claim leave asand when requiredand when required

•• Employee can not claim leave as a right.Employee can not claim leave as a right.•• Reciprocal agreementReciprocal agreement•• The management can not sanction leave to anThe management can not sanction leave to an

employee at the peril of the organization or theemployee at the peril of the organization or thelarge scale of dislocation of work.large scale of dislocation of work.

•• The adjustment has to be made from both side.The adjustment has to be made from both side.•• Unless the permission for leave is given orUnless the permission for leave is given or

granted the person seeking leave can absentgranted the person seeking leave can absenthimself from duty in an unauthorized manner.himself from duty in an unauthorized manner.



An employee can be removed onAn employee can be removed onground of continuous ill healthground of continuous ill health

•• Employer is not a charitable house.Employer is not a charitable house.•• Gives job to a person for the benefits of theGives job to a person for the benefits of the

organization.organization.•• If an employee can not do his duties because ofIf an employee can not do his duties because of

continued or incurable illness, the company iscontinued or incurable illness, the company isnot legally or morally bound to have him innot legally or morally bound to have him inemployment.employment.

•• Unfitness should be fully proved.Unfitness should be fully proved.



An employee can be removed onAn employee can be removed onground of continuous ill healthground of continuous ill health

•• Continuous ill health is a question of fact.Continuous ill health is a question of fact.•• Mere physical weakness does not constituteMere physical weakness does not constitute

continued ill health.continued ill health.•• The ill health must be of such a nature that theThe ill health must be of such a nature that the

person is not in a position to do the job forperson is not in a position to do the job forwhich he was employed.which he was employed.



An employee ought not neglect his dutiesAn employee ought not neglect his duties

•• Negligence towards duties is a specific tort.Negligence towards duties is a specific tort.•• Negligence includes inadvertence which isNegligence includes inadvertence which is

failure to bring the probable consequences of afailure to bring the probable consequences of acareless act to the mind.careless act to the mind.

•• Omission which isOmission which is violativeviolative of the express orof the express orimplied obligation of an employee then it is aimplied obligation of an employee then it is amisconduct.misconduct.



An employee can not carry on union activitiesAn employee can not carry on union activitiesduring working hoursduring working hours

•• An employee can not carry on union activitiesAn employee can not carry on union activitiesduring working hours and at the premises of theduring working hours and at the premises of theestablishmentestablishment

•• An office bearer or any trade union can not claimAn office bearer or any trade union can not claimas of right to carry on trade union activities.as of right to carry on trade union activities.

•• Union meetings can not be held at the premises ofUnion meetings can not be held at the premises ofemployer.employer.

•• Employer can give notices for not holdingEmployer can give notices for not holdingmeetings.meetings.



An employee can not drink while on dutyAn employee can not drink while on duty

•• State of intoxication during working hours byState of intoxication during working hours byany worker shows the height of indiscipline onany worker shows the height of indiscipline onhis part.his part.

•• It entails punishment of dismissal from service.It entails punishment of dismissal from service.



An employee can not loiter during duty hours.An employee can not loiter during duty hours.•• Loitering: Wasting time and doing nothing.Loitering: Wasting time and doing nothing.

Chitchatting with others or moving around aboutChitchatting with others or moving around aboutaimlessly.aimlessly.

•• An employer would be justified in dismissing suchAn employer would be justified in dismissing sucha workman who is guilty of habitual loitering.a workman who is guilty of habitual loitering.

(Burn & Co. Ltd Vs Their workmen 1956 I LLJ 450(Burn & Co. Ltd Vs Their workmen 1956 I LLJ 450(SC): AIR 1959 SC 529; (1958(SC): AIR 1959 SC 529; (1958--59)FJR 33859)FJR 338

•• Even if the workmen is an office bearer of union,Even if the workmen is an office bearer of union,he can not break the discipline with impunity byhe can not break the discipline with impunity byloitering outside his place of work & that tooloitering outside his place of work & that toowithout permission.without permission.



An employee is liable to be punished forAn employee is liable to be punished forabusive language.abusive language.

•• Abuse: filthy language have innocence meaning inAbuse: filthy language have innocence meaning indictionary but in reality it is a bullying or brow beatingdictionary but in reality it is a bullying or brow beatingtactics.tactics.

•• It means to misuse a word in a sense it is not intendedIt means to misuse a word in a sense it is not intendedto use the word in perverted manner.to use the word in perverted manner.

•• Series misconduct.Series misconduct.•• Misuse of freedom of speechMisuse of freedom of speech..



An employee can not sleep during duty hours.An employee can not sleep during duty hours.

•• Recognized misconductRecognized misconduct•• Seriousness will depend upon:Seriousness will depend upon:

•• its own peculiar facts & circumstancesits own peculiar facts & circumstances•• Nature of work performed by an employeeNature of work performed by an employee•• Status or position he occupiesStatus or position he occupies•• In recent Judgment (In recent Judgment (BhartBhart Forge LtdForge Ltd vsvs NakateNakate),),

Supreme Court has broadly said that if employeeSupreme Court has broadly said that if employeeis habitual he can be dismissed.is habitual he can be dismissed.



An employee must not commit any offenceAn employee must not commit any offence

•• Employee can be dismissed, if convicted byEmployee can be dismissed, if convicted bycriminal court.criminal court.

•• Without holding any enquiryWithout holding any enquiry•• Findings & judgment of the court is a sufficientFindings & judgment of the court is a sufficient

basis for employer to dismiss the employee.basis for employer to dismiss the employee.•• He can not be compelled to take his back intoHe can not be compelled to take his back into

employment in case the conviction is set aside.employment in case the conviction is set aside.



No money lending business at theNo money lending business at theestablishmentestablishment

•• Money lending: Includes both giving the moneyMoney lending: Includes both giving the moneyon loan to a person and receiving repayment ofon loan to a person and receiving repayment ofthe money so lent from such person,the money so lent from such person, i.ei.e thethedebtor.debtor.

•• Using office for money lending business isUsing office for money lending business ismisconduct.misconduct.

•• Money lender & borrower both must be treatedMoney lender & borrower both must be treatedalike.alike.



An employee can notAn employee can not derilictderilict in his dutiesin his duties•• Duties of every employee are clearly defined byDuties of every employee are clearly defined by

law or standing orders or agreements.law or standing orders or agreements.•• If an employee does not do the workIf an employee does not do the work

accordingly then he can be punished.accordingly then he can be punished.•• Contract of service is not a simple contract.Contract of service is not a simple contract.•• The relationship is governed by implied termsThe relationship is governed by implied terms

of contract, customs & usage of trade, standingof contract, customs & usage of trade, standingorders, settlements and awards under the IDorders, settlements and awards under the IDAct 1947, & other statutoryAct 1947, & other statutory



An employee can notAn employee can not derilictderilict in his dutiesin his duties

provisions touching the relationship.provisions touching the relationship.•• The moments such contract comes intoThe moments such contract comes into

existence, the employer becomes entitled toexistence, the employer becomes entitled toissue directors, regarding the manner of doingissue directors, regarding the manner of doingwork.work.



An employee must not gamble duringAn employee must not gamble duringduty hoursduty hours

•• Gambling is always and every where consideredGambling is always and every where consideredas an act of moral turpitude.as an act of moral turpitude.

•• It assumes a very serious proposition ofIt assumes a very serious proposition ofmisconduct when it is committed in themisconduct when it is committed in thepremises of any industrial establishment.premises of any industrial establishment.

••



An employee can not adopt GoAn employee can not adopt Go--SlowSlowtacticstactics

•• GoGo--slow means anything less than normal workslow means anything less than normal workor output by a body of persons employed in anyor output by a body of persons employed in anyindustry acting combination, or a concertedindustry acting combination, or a concertedrefusal or a refusal under a commonrefusal or a refusal under a commonunderstanding of any number of persons whounderstanding of any number of persons whoare have been so employed to continue to carryare have been so employed to continue to carryout their work in a normal manner with normalout their work in a normal manner with normalenergy.energy.

•• It constitutes serious misconduct.It constitutes serious misconduct.



An employee can not adopt GoAn employee can not adopt Go--SlowSlowtacticstactics

•• Alternative to strikeAlternative to strike•• SC held that it is not legitimate weapon in theSC held that it is not legitimate weapon in the

armory ofarmory of labourlabour..•• Very serious set of misconduct meritingVery serious set of misconduct meriting

dismissal ofdismissal of wokerswokers resorting to it from service.resorting to it from service.{{GaneshGanesh Flour Mills v.Flour Mills v. ChandrikaChandrika Prasad, 1957 IPrasad, 1957 I

LLJ 656 (LAT}LLJ 656 (LAT}



Sexual harassmentSexual harassment•• A male employee can not misbehave with female coA male employee can not misbehave with female co--

employee.employee.• sexual harassment which includes unwelcome sexual

determined behaviour [whether directly or byimplication], such as:

1] physical contact or advances; or2] a demand or request for sexual favours; or3] sexually coloured remarks; or4] showing pornography; or5] any other unwelcome physical, verbal or non verbal

conduct of sexual nature


Inefficiency can be the cause of dismissalInefficiency can be the cause of dismissal

•• Negligence of duty may not be a misconduct but thatNegligence of duty may not be a misconduct but thatmay be the cause of great loss to the employer.may be the cause of great loss to the employer.

•• Deliberate wickedness or malevolence is misconduct.Deliberate wickedness or malevolence is misconduct.•• The ground that gross or habitual negligence inThe ground that gross or habitual negligence in

performance of duty may not involveperformance of duty may not involve mensmens rearea butbutmay still constitutes misconduct for disciplinarymay still constitutes misconduct for disciplinaryproceedings.proceedings.


Instigating for illegal strike is punishableInstigating for illegal strike is punishablewith imprisonment.with imprisonment.

•• Recognized misconduct. Workman can beRecognized misconduct. Workman can bedismissed.dismissed.

•• Under section of 27 of ID Act 1947, theUnder section of 27 of ID Act 1947, theinstigation of an illegal strike is punishable byinstigation of an illegal strike is punishable byimprisonment for a term which may extend toimprisonment for a term which may extend tosix months or with fine which may extend Rs.six months or with fine which may extend Rs.1000/1000/-- or with both.or with both.


StrikeStrike

•• For illegal strike management is justified toFor illegal strike management is justified todeductdeduct uptoupto 8 days wages as a penal deduction.8 days wages as a penal deduction.

•• No wages are payable to the workers for theNo wages are payable to the workers for thestrike period irrespective of the fact whether thestrike period irrespective of the fact whether thestrike was legal or illegal.strike was legal or illegal.


AgitationsAgitations

•• Workmen can not stage demonstration orWorkmen can not stage demonstration ordharnadharna at the premises of the establishment.at the premises of the establishment.

•• To stageTo stage dharnadharna oror demonstartiondemonstartion is notis notfundamental rightfundamental right--says S.C.says S.C.

•• Agitation in a nonAgitation in a non--violent manner is wellviolent manner is wellrecognisedrecognised..

•• Exercise of the fundamental rights comes toExercise of the fundamental rights comes toend as soon as it intervene otherend as soon as it intervene other’’s right.s right.


Damage to property & employerDamage to property & employer’’ssreputationreputation

•• An implied term of service is that employee willAn implied term of service is that employee willperform his duties with proper care andperform his duties with proper care andfaithfully.faithfully.

•• If any employee is deliberately sabotaging theIf any employee is deliberately sabotaging theinterests or respect of the employer, then he isinterests or respect of the employer, then he iscommitting a serious misconduct for which hecommitting a serious misconduct for which hecan justifiably be removed from service.can justifiably be removed from service.


BibliographyBibliography•• H L Kumar; Universal Publishing Co. Pvt. Ltd;H L Kumar; Universal Publishing Co. Pvt. Ltd;

Employers Rights Under Labour Laws;Employers Rights Under Labour Laws;•• H L Kumar; Universal Publishing Co. Pvt. Ltd;H L Kumar; Universal Publishing Co. Pvt. Ltd;

Transfer of employees under Labour Laws;Transfer of employees under Labour Laws;•• S R Samant; Labour Law Agency; Labour Laws,S R Samant; Labour Law Agency; Labour Laws,•• Gazette, Maharashtra StateGazette, Maharashtra State•• Current Labour Reports,Current Labour Reports, apsaps labour digestslabour digests•• Various Bare Acts published by Labour LawVarious Bare Acts published by Labour Law

Agency.Agency.


Thank you!Thank you!

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Employers Rights Under Labour Laws