Employers rights under labour laws


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Employers rights under labour laws

  1. 1. Employers Rights Under Labour Laws Vinod BidwaikReproduction and dissemination are encouraged, but please cite the source. vinodbidwaik@yahoo.com or Vinodbidwaik@gmail.com, please visit http://vinodtbidwaik.blogspot.com
  2. 2. Employment Contract• Contract: Employee-Employer relationship.• Appointment letter/settlement are contracts.• Employment conditions under Model/Certified Standing Orders are accepted rules & regulations as per the contract.• A workman/employee is bound to comply with the terms and conditions of service.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  3. 3. Basic Rules of Employment• An employee can not work in more than one establishment.• An employee can not run his own business during working hours.• Employee have to take prior permission from the employer for running his own business, profession.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  4. 4. Recognized forms of relationship• Employer’s right to select an employee• Employer’s right to pay wages or other remuneration• Employer’s right to control the method of doing work, and• Employer’s right of suspension, transfer or dismissal of the employee.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  5. 5. Employees Obligations• To work faithfully• An employee must observe honesty & commit no fraud.• An employee must have to be regular• To perform designated work• Not to leave work earlier• Is to bound to give REQUIRED output• Not to negligent & should be efficient.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  6. 6. Conditions justifying summery dismissal The Bombay High Court has enumerated broadly the following specific illustrative cases of the acts of misconduct, the commission of which would justify the dismissal of the delinquent employee.a) If act or conduct is prejudicial or likely to be prejudicial to the interest of the master or to the reputation of the master.b) If the act or conduct is inconsistent or incompatible with the due or peaceful discharge of his duty to his master.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  7. 7. Conditions justifying summery dismissal…..Continuedc) If the act or conduct of the servant makes it unsafe for the employer to retain in service.d) If act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee can not be trusted.e) If the act or conduct of the employee is such that the employer can not rely on the faithfulness of his employee.f) If the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  8. 8. Conditions justifying summery dismissal…..Continuedg) If the employee is abusive or if he disturbs the peace at the place of employment.h) If he is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of employee & employer.i) If the employee is habitually negligent in respect of the duties for which he is engaged.j) If the neglect of the employee, though isolated tends to cause serious consequences.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  9. 9. Employer’s RightAn employee has to work any place as directed• Employee has the right to transfer the employee• No right to be posted at a place of one’s choice.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  10. 10. Employer’s RightAn employee should not show indifference to work • If an employee shows constant indifference towards work then the employer can warn him to improve. • If an employee is not improved, after several warnings, he can be removed. (Bharat Kala Kendra Pvt Ltd. V. R K Baweja & others Delhi HC.1980) Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  11. 11. Employer’s RightAn employee must observe honesty & commitno fraud• Dishonesty are 2 different things• If due to unlawful activities of any employee the organization is not getting what is legally due to it, then• The organization is very much within its right to take action against such employeeVinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  12. 12. Employer’s RightAn employee must have to be regular• Regularity: An essence of employment.• Absence from duty tantamount to misconduct.• Dismissal of employee justified in premise of habitual and frequent absence.(M Arunagiri V. Bata India Ltd, 1991, LLR 71, Madras High Court)• Punctuality: an implied condition of service.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  13. 13. Employer’s RightAn employee must observe punctuality inattendance• Late attendance is absence with leave for the period between the time the employee is required to arrive and the time he actually does arrive and as a species of unauthorized absence, it too is a misconduct.• Habitual late attendance constitutes misconduct.• Grace period given should not be considered as a right.• If an employee continues to come late in spite of warnings and other actions such as suspension etc, his dismissal is justified.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  14. 14. Employer’s RightMust rules for leave• An employee should not absent when his leave is not sanctioned• An employee must send medical certificate for availing sick leave.• Employee, while availing leave has to apply for the same and give reasons for availing leave.• The reasons for availing leave should be clear and not vegue.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  15. 15. Employer’s Right Must rules for leave• Unless leave is not applied for the question of its sanction would not arise.• Employer can insist on production of medical certificate.• Medical certificate should be submitted at the earliest stage.• Medical certificate by Vaid/Hakim in village may be recognised,• However management can ask him to produce the certificate of a govt. doctor and he does not produce the certificate then in that case he is in fault.(Upper India Sugar Mills Ltd. Vs. Khatauli V & other employees, 1951, II, LLJ 38 HC, Lucknow) Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  16. 16. Employer’s RightMust rules for leave• It is not a rule that registered medical practitioner should be an Allopathic Doctor. Even if there was such rule that would amount to discrimination.• Employee can be produced before a doctor for medical check up.• Employer within his rights can reject the medical certificate as sent by the employee and can get him examined by another doctor. However doctor’s fee will be paid by the employer. (Canara Bank Staff Union & Another V. Union of India, 1998, LLR 545, Kerla HC)Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  17. 17. Employer’s Right An employee can not over stay leave• An employee can not over stay the leave.• The reasons for over stay should be reasonable.• If the request/application is not sanctioned after over stay for several months and employee does not report to duty, employee has right to terminate the employee as per the provisions of model standing orders.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  18. 18. Employer’s Right An employee can not claim leave as and when required• Employee can not claim leave as a right.• Reciprocal agreement• The management can not sanction leave to an employee at the peril of the organization or the large scale of dislocation of work.• The adjustment has to be made from both side.• Unless the permission for leave is given or granted the person seeking leave can absent himself from duty in an unauthorized manner.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  19. 19. Employer’s Right An employee can be removed on ground of continuous ill health• Employer is not a charitable house.• Gives job to a person for the benefits of the organization.• If an employee can not do his duties because of continued or incurable illness, the company is not legally or morally bound to have him in employment.• Unfitness should be fully proved.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  20. 20. Employer’s Right An employee can be removed on ground of continuous ill health• Continuous ill health is a question of fact.• Mere physical weakness does not constitute continued ill health.• The ill health must be of such a nature that the person is not in a position to do the job for which he was employed.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  21. 21. Employer’s RightAn employee ought not neglect his duties• Negligence towards duties is a specific tort.• Negligence includes inadvertence which is failure to bring the probable consequences of a careless act to the mind.• Omission which is violative of the express or implied obligation of an employee then it is a misconduct.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  22. 22. Employer’s Right An employee can not carry on union activities during working hours• An employee can not carry on union activities during working hours and at the premises of the establishment• An office bearer or any trade union can not claim as of right to carry on trade union activities.• Union meetings can not be held at the premises of employer.• Employer can give notices for not holding meetings.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  23. 23. Employer’s RightAn employee can not drink while on duty• State of intoxication during working hours by any worker shows the height of indiscipline on his part.• It entails punishment of dismissal from service.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  24. 24. Employer’s Right An employee can not loiter during duty hours.• Loitering: Wasting time and doing nothing. Chitchatting with others or moving around about aimlessly.• An employer would be justified in dismissing such a workman who is guilty of habitual loitering.(Burn & Co. Ltd Vs Their workmen 1956 I LLJ 450 (SC): AIR 1959 SC 529; (1958-59)FJR 338• Even if the workmen is an office bearer of union, he can not break the discipline with impunity by loitering outside his place of work & that too without permission. Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  25. 25. Employer’s Right An employee is liable to be punished for abusive language.• Abuse: filthy language have innocence meaning in dictionary but in reality it is a bullying or brow beating tactics.• It means to misuse a word in a sense it is not intended to use the word in perverted manner.• Series misconduct.• Misuse of freedom of speech.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  26. 26. Employer’s RightAn employee can not sleep during duty hours.• Recognized misconduct• Seriousness will depend upon: • its own peculiar facts & circumstances • Nature of work performed by an employee • Status or position he occupies • In recent Judgment (Bhart Forge Ltd vs Nakate), Supreme Court has broadly said that if employee is habitual he can be dismissed.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  27. 27. Employer’s RightAn employee must not commit any offence• Employee can be dismissed, if convicted by criminal court.• Without holding any enquiry• Findings & judgment of the court is a sufficient basis for employer to dismiss the employee.• He can not be compelled to take his back into employment in case the conviction is set aside.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  28. 28. Employer’s Right No money lending business at the establishment• Money lending: Includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e the debtor.• Using office for money lending business is misconduct.• Money lender & borrower both must be treated alike.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  29. 29. Employer’s RightAn employee can not derilict in his duties• Duties of every employee are clearly defined by law or standing orders or agreements.• If an employee does not do the work accordingly then he can be punished.• Contract of service is not a simple contract.• The relationship is governed by implied terms of contract, customs & usage of trade, standing orders, settlements and awards under the ID Act 1947, & other statutoryVinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  30. 30. Employer’s RightAn employee can not derilict in his dutiesprovisions touching the relationship.• The moments such contract comes into existence, the employer becomes entitled to issue directors, regarding the manner of doing work.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  31. 31. Employer’s Right An employee must not gamble during duty hours• Gambling is always and every where considered as an act of moral turpitude.• It assumes a very serious proposition of misconduct when it is committed in the premises of any industrial establishment.•Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  32. 32. Employer’s Right An employee can not adopt Go-Slow tactics• Go-slow means anything less than normal work or output by a body of persons employed in any industry acting combination, or a concerted refusal or a refusal under a common understanding of any number of persons who are have been so employed to continue to carry out their work in a normal manner with normal energy.• It constitutes serious misconduct.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  33. 33. Employer’s Right An employee can not adopt Go-Slow tactics• Alternative to strike• SC held that it is not legitimate weapon in the armory of labour.• Very serious set of misconduct meriting dismissal of wokers resorting to it from service.{Ganesh Flour Mills v. Chandrika Prasad, 1957 I LLJ 656 (LAT}Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  34. 34. Sexual harassment• A male employee can not misbehave with female co- employee.• sexual harassment which includes unwelcome sexual determined behaviour [whether directly or by implication], 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 natureVinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  35. 35. Inefficiency can be the cause of dismissal• Negligence of duty may not be a misconduct but that may be the cause of great loss to the employer.• Deliberate wickedness or malevolence is misconduct.• The ground that gross or habitual negligence in performance of duty may not involve mens rea but may still constitutes misconduct for disciplinary proceedings.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  36. 36. Instigating for illegal strike is punishable with imprisonment.• Recognized misconduct. Workman can be dismissed.• Under section of 27 of ID Act 1947, the instigation of an illegal strike is punishable by imprisonment for a term which may extend to six months or with fine which may extend Rs. 1000/- or with both.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  37. 37. Strike• For illegal strike management is justified to deduct upto 8 days wages as a penal deduction.• No wages are payable to the workers for the strike period irrespective of the fact whether the strike was legal or illegal.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  38. 38. Agitations• Workmen can not stage demonstration or dharna at the premises of the establishment.• To stage dharna or demonstartion is not fundamental right-says S.C.• Agitation in a non-violent manner is well recognised.• Exercise of the fundamental rights comes to end as soon as it intervene other’s right.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  39. 39. Damage to property & employer’s reputation• An implied term of service is that employee will perform his duties with proper care and faithfully.• If any employee is deliberately sabotaging the interests or respect of the employer, then he is committing a serious misconduct for which he can justifiably be removed from service.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  40. 40. Bibliography• H L Kumar; Universal Publishing Co. Pvt. Ltd; Employers Rights Under Labour Laws;• H L Kumar; Universal Publishing Co. Pvt. Ltd; Transfer of employees under Labour Laws;• S R Samant; Labour Law Agency; Labour Laws,• Gazette, Maharashtra State• Current Labour Reports, aps labour digests• Various Bare Acts published by Labour Law Agency.Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
  41. 41. Thank you!Vinod Bidwaik.- http://vinodtbidwaik.blogspot.com
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