Important Rights of Private Employees under the Indian Laws

The article 'Important Rights of Private Employees under the Indian Laws' highlights the legislative enactments that protect the rights of private employees and also regulate the interests of employees. Workers' rights are necessary to defend the personnel of the private sector, as well as the state and federal governments. The private sector or the government has a duty to act when these rights are violated as a citizen of this nation to maintain a healthy working environment that values respect, integrity, and loyalty to one right.These rights should safeguard workers at all levels of employment. According to the Constitution, the Centre and the State Government are empowered to enact legislations to protect and regulate the interests of employees. Furthermore, these legislations expand the scope of available opportunities.

Introduction

Traditionally, the Indian government at the federal and state levels has strived to ensure a high degree of protection for employees. The Minimum Wages Act of 1948 mandates that businesses pay the government-set minimum wage and cap workweeks. Since the reward for overtime is 100% of the overall wage, it is strongly discouraged. The Payment of Wages Act of 1936 requires that wages be paid promptly by bank transfer or postal service on the last working day of each month. Each employee is required to take 15 working days of fully paid vacation time each year, in addition to an extra 7 completely paid sick days, under the Factories Act of 1948 and the Shops and Establishments Act of 1960.

Every company's female employees are now entitled to 6 months of fully compensated maternity leave, and the credit goes to the Maternity Benefit (Amendment) Act of 2017. Additionally, it offers 6 weeks of paid time off in the event of a miscarriage or medical termination of pregnancy. Workers can access the essential social security for retirement benefits, medical care, and unemployment benefits through the Employees' Provident Fund Organization and the Employees' State Insurance, all of which are governed by statutes. Employees who qualify for Employees' State Insurance coverage (those making less than Rs. 21000/month) are also eligible for 90 days of paid medical leave.

It is always possible to include more rights in an employment contract than the bare minimum required by law. Four labour codes were adopted by the Indian parliament in the 2019 and 2020 sessions. 44 current labour laws will be consolidated into these four codes. These are the 2020 Industrial Relations Code, 2020 Social Security Code, 2020 Occupational Safety, Health, and Working Conditions Code, and 2019 Wage Code.

Articles 14–16, 19(1)(c), 23–24, 38, and 41– 43A of the 1950 Indian Constitution specifically address labour rights. Everyone shall be treated equally under the law, according to Article 14, and discrimination against citizens is prohibited under Article 15. Article 16 also grants the right to "equality of opportunity" for employment or other state-related appointments. Everyone has the special right "to form groups or unions," according to Article 19(1)(c). Articles 23 and 24 forbid child labour under the age of 14 in factories, mines, or "any other dangerous occupation," respectively. Article 23 also outlaws all forms of trafficking and forced labour.

However, unlike all of the rights enumerated in Part IV of the Constitution, which are not subject to judicial review, Articles 38-39 and 41-43A do not impose a mandatory obligation of the State to implement these principles in formulating legislation. Given the demands democratically accountable institutions might make on the state for funding from general taxes, the original reason for leaving such principles unenforceable by the courts was that such views should be left with discretion. However, such views have subsequently come under fire. According to Article 38(1), the state must generally

"strive to promote the welfare of the people" by establishing a "social order in which justice, social, economic, and political, must influence all the institutions of national life."

The important rights of a private employee protected by the Indian Laws

An employee should be aware that they have rights to a safe workplace and that they are protected from certain things by law and the constitution. When recruiting employees, an employer should be aware that they have legal and constitutional obligations to consider certain factors. Here is a detailed list of every aspect of private employment that is regulated by the law:

Employment Agreement

When they start working for a company, every employee is entitled to get an employment agreement. This agreement outlines the employee's title, working hours, employer expectations of the employee, what constitutes a dispute or conflict, what might happen in the event of a dispute, and the various leaves to which the employee is entitled. The agreement's main goal is to clarify the employment terms for both the employer and the employee before work even starts. Before accepting a position, an employee has a right to understand exactly what he or she agrees to. When starting a job, getting an employment contract in place and ensuring sure it is fair are of utmost importance.

Basic Rights

According to The Factories Act, everyone, regardless of where they work, is entitled to a set of fundamental rights related to health and safety at work as a component of a positive working environment. The employer is in charge of making sure that these fundamental amenities are available. The appropriate safety equipment must be given if the workplaces are dangerous, such as construction or mining sites. Employers are required to provide compensation as specified by The Employees Compensation Act if they fail to maintain a safe and healthy workplace, and an employee suffers as a result. Cleanliness, access to water for drinking, garbage disposal, lighting, ventilation and restrooms are among the fundamental rights of employees.

Rights during probation

While an employee is on probation, the employer has the power to fire them for doing substandard job or being unfit for the position with advance warning. If the basis for termination is something other than subpar work, the employee may also request an investigation. A six-month probationary period is typical. It may be prolonged for a further three months. The maximum time frame is limited to two years.

Protection against sexual harassment

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 provides for this protection. According to the Indian Penal Code, sexual harassment is a crime that can result in up to three years in prison and/or a fine. According to the Act, if a company has ten or more employees, it must establish an internal complaints committee to handle sexual harassment claims. The creation of this committee is required at all organizational branches and divisions. This committee ought to consist of:

• A senior-level female employee who will serve as the presiding officer
• A maximum of two additional workers must be dedicated to the cause of women's safety and/or possess the necessary legal and/or social understanding.
• A member of a non-governmental organisation (NGO) who supports women's rights or is knowledgeable about sexual harassment issues

The following would be a broad list of the offences included in the "Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013" official document:

• Physical advances and contact
• Request or demand for sexual favours
• Making remarks with a sexual context
• Showing pornography
• Any inappropriate sexual behaviour, whether it be physical, verbal, or nonverbal.

Even though it is required by law for any workplace with more than 10 employees to execute the law, many MNCs and Indian businesses continue to be careless in doing so.

Minimum pay

Every employee in India is entitled to a minimum pay under the Minimum Wages Act, which enables them to support their way of life and access the services they need.

Article 23 of the Constitution is broken by any wage that is less than the minimum wage. Forced labour, which is prohibited by the same Article, is defined as when someone is made to work for less than the minimum wage.

According to The Minimum Wages Act of 1948's official text, various minimum rates may be set for:

● different forms of employment

● several work categories under the same category of employment

● adults, adolescents, children, and apprentices

● various locations

The following criteria are used by both the federal government and state governments to determine the minimum wage:

● region

● expense of living

● kind of work

● hours of work

● what the employer is permitted to pay

Timely payment

First and foremost, there needs to be equal pay for equal effort for men and women. This is protected under The Act of Equal Remuneration, 1976, which ensures that all employees receive equal pay regardless of their physical prowess.

Second, the Payment of Wages Act mandates that an employee must get his or her compensation promptly. The employee may initiate a civil lawsuit or contact the Labour Commissioner if this does not occur. Employees who earn more than Rs. 18,000 per month might file a civil lawsuit against their employer.

Bonus

The Payment of Bonus Act, 1965 mandates that any factory or organisation that is at least five years old and that employs 20 or more people during any accounting year must provide bonuses to its staff. Even if there are finally fewer than 20 employees, the incentive will still be paid. Any employee who has worked more than 30 days in any accounting year and receives a monthly pay of Rs. 21,000 or less is entitled for a bonus.

There are now 2 ways for an employee to receive a bonus:

● That year, the business was profitable.

● The employee and employer have agreed that the employee will get a bonus based on productivity.

8 months after the end of the accounting year, the bonus must be paid but anyone who has been dismissed from their job due to fraud, violent conduct on the business's grounds or any firm property that has been stolen or sabotaged is not eligible for the bonus under this Act.

Working hours and overtime

According to The Minimum Wages Act of 1948, if an employee works longer than the regular working hours, the employer must compensate him for each hour or portion of an hour worked in excess of the regular working hours. The Act or another statute of the relevant Government, whichever is greater, will set the overtime rate. Every employee has a weekly right to one day of relaxation. The company will compensate you for the same.

If a person works on this day of rest as well, they will be paid at least as much as they would be for overtime. On the other hand, if an employee works less hours than the standard workday, they will still be compensated as if they had put in a full day's worth of work. The reimbursement is not applicable if:

● He or she chooses not to work because they don't want to, not because their employer hasn't given them any job.

● Other possible predetermined reasons may also apply.

Leaves

Each company's leave policy must be written in accordance with the laws and regulations of the State. For national and state-specific holidays, each state offers at least seven days off. The three national holidays of the country—Republic Day (Jan. 26), Independence Day (Aug. 15), and Gandhi Jayanti—must be observed by employees (Oct 2). The corporation will decide how to handle the other national and festival holidays.

An employee is also entitled to a number of different leaves, including the following:

● Casual leaves

These leaves are reserved for unforeseen situations where an employee may need to take care of an immediate concern. A corporation typically allows up to three days of unpaid time off per month. The casual leaves can be taken for medical reasons if there are no sick leaves available.

● Privilege leaves

The employee may use privilege or earned leaves that were carried over from the previous year in the current or succeeding years. Up to three years may pass after taking a privileged leave. If an employee doesn't have any accrued sick time, they may be used in their place. When an employee leaves a company, any unused paid time off that they have accrued can be encashed.

● Compensatory leave

The employee may take a compensatory leave if he or she shows up for work on a designated holiday.

● Leave without pay

If an employee does not have any accrued vacation time left, he or she may take a leave without pay; however, the wages for that day will be subtracted from the person's monthly compensation. The decision to provide the employee a paid leave is up to the management of the organisation, nevertheless.

Gratuity

The Payment of Gratuity Act, 1972 governs gratuities. It is the employer's method of saying "thank you" to the employee for the work they have done. The amount of the tip is in no manner increased by the employee. It is a one-time payment made by the company to the employee in any of the following situations:

● Retirement

● Resignation

● Disability that prevents them from working

● Death (gratuity is given to the nominees for the employee)

● Superannuation

The amount of the gratuity is determined by how long the person has worked for the company. The bare minimum for the same is five. It is computed as follows and paid as 15 days of compensation for each year of employment: Gratuity equals last month's wage x 15 working days x the number of years of service.

The most recent change from 2018 states that the gratuity cannot be more than Rs. 20,000,000.

If an employee's wrongdoing leads to their termination, their gratuity is forfeited. The employee's misbehavior ought to have been deliberate, and it ought to have cost the firm money. Even then, the gratuity will be lost in proportion to the harm done.

Provident Funds

A retirement and long-term savings plan is the provident fund. All Indian employees who receive a salary have their provident funds managed by the Employees Provident Fund Organization (EPFO). A company must register with the EPFO if it has more than 20 employees.

Employees and employers both contribute the same amount to the EPF, which is 12% of each person's salary. In the following situations, withdrawals may be made in full or in part:

● construction of a home

● medicare

● repayment of mortgage

● home remodeling

● marriage

● educational costs

● retirement

● foreign immigration

Money from the PF may not be withdrawn while an employee is working. It can only be taken out after retirement. The withdrawn sum will be taxed if withdrawals are made before five years of service have passed.

Parental leaves

In India, maternity compensation for women is governed by the Maternity Benefit Act, 1961.

Maternity leave now lasts for 26 weeks. A maximum of 8 weeks of these may be used for prenatal leave. Although the length of the leave will vary, mothers who are commissioning, surrogate, or adoptive parents are also eligible.

Firstly, a woman's pregnancy cannot be used as justification for letting her go from her job. They may still file for maternity benefits even if fired. In the six weeks following a woman's pregnancy or miscarriage, no company may hire her. For the first six weeks after a pregnancy or loss, no woman by herself may work anyplace. Although government employees are entitled to the same benefits, child care leave and paid paternity leave are at the employer's choice in the private sector. It might be compensated or it might not.

Equal treatment to Transgender community

The Transgender Persons (Protection of Rights) Act, 2019 ('Transgender Persons Act') aims to recognize transgender people's identities and prohibit discrimination in areas such as education, employment, healthcare, property ownership and disposal, public and private office holding, and access to and use of government services and benefits. Rule 11 of the Transgender Persons (Protection of Rights) Rules, 2020 requires all organizations to provide a safe environment and equal chances for transgender people by including infrastructure improvements, recruitment, employment perks, and promotion. It is a legal requirement for all businesses to disclose their Equal Opportunity Policy.

Case Laws

Rasitha C.H. v. State of Kerala[1]

Justice A Muhamed Mustaq ruled to grant a petition brought by 35-year-old Rasitha, who had been denied maternity leave by the Calicut University on the grounds that the conditions of her contract did not provide for the granting of such leave.

The maternity benefit is more than just a legal requirement or an agreement-based benefit. This court has repeatedly maintained that it is associated with female dignity. A woman employee cannot be refused maternity benefits just because of her status as a contractual employee. Therefore, despite anything stated in the contract, the University is required to provide such benefits.

Rakhi P.V. v. State of Kerala[2]

The court especially addressed the claim of women employees who work under contract who are entitled to maternity leave, and this court concluded that such women cannot be refused the maternity benefits regardless of their employment is contractual or otherwise.

Rajasthan State Road Transport Corporation Ltd. & Ors. v. Smt. Mohani Devi & Anr[3]

In allowing the appeal, the bench made the observation that if a request for voluntary retirement is made while disciplinary action is being taken, there would be no absolute right seeking acceptance because the employer would be free to ignore the request if they wanted to move forward with the investigation.

The bench, however, noted that according to Section 4(1)(b) of the Payment of Gratuity Act, 1972, which was correctly cited by the knowledgeable counsel for the respondents, a gratuity is due if an employee's employment is terminated after five years of continuous service, which includes resignation. In that case, the respondent No. 1 would be entitled to receive the gratuity amount in accordance with the Act's requirements if the respondent's husband had not received the gratuity payment. In this regard, it is instructed that the appellants calculate the gratuity appropriately and pay it to respondent No. 1 if it has not already been done. This reimbursement must be made within four weeks.

Chairman ­cum ­Managing Director, Mahanadi Coalfields Limited v. Sri Rabindranath Choubey[4]

The court held that the outcome of the inquiry would determine a number of service advantages, including the length of time the investigation was open. Allowing an employee to escape punishment after receiving different service benefits to which he was not entitled would be against public policy, and the event of superannuation cannot come to his rescue and would amount to condoning guilt. It can be finished in the same way as if the employee had continued in service after superannuation thanks to the legal fiction given by the rules, and the proper punishment can be imposed. A departmental investigation is not prevented by the various provisions of the Gratuity Act mentioned above, as stated in Section 4 (6).

Nisha Priya Bhatia v. Union of India & Anr.[5]

Hon'ble Supreme Court held that the legal approach to cases of sexual harassment at work is not limited to situations in which actual harassment has occurred, but also includes scenarios in which a female employee has been subjected to prejudice, hostility, a discriminatory attitude, and humiliation while going about her daily duties there.

Vishaka & Ors v. State of Rajasthan & Ors[6]

The Supreme Court of India took serious note of sexual harassment of women and gave directives to ensure rules and guidelines for the protection of women at work in the case of Vishaka & Ors v. State Of Rajasthan & Ors on August 13, 1997.

Further, the Supreme Court of India (SCI) declared that sexual harassment of women at work clearly violates their fundamental rights. It also clarified what constitutes sexual harassment of women at work, as well as the types of behaviours that fall under this category and are subject to harsh penalties. Sexual harassment encompasses such unwelcome sexually determined behaviour as physical encounters and advances, sexually coloured remarks, exhibiting pornography, and sexual demands, whether by words or deeds," said the Equal Employment Opportunity Commission. Such behaviour can be degrading and pose a risk to one's health and safety; it is discriminatory when a woman has good reason to believe that objecting would harm her chances of getting hired or promoted, or when it fosters a hostile work environment. There should be efficient complaint procedures and remedies, including compensation.

Nangai v. The Superintendent of Police[7]

The petitioner in the present case applied for the post of a woman police constable.

During the course of her training, she underwent a medical examination. The examination declared her as "transgender" on the basis of chromosomal pattern and genitalia, which contradicted her birth certificate, medical records, and educational certificates. Later on, The Superintendent ordered her termination from the post of a woman constable. The Hon'ble High Court upheld that the petitioner has the liberty to choose a different gender identity as a third gender in future based on the medical declaration and the impugned order of termination from service issued by the Superintendent of Police, which was set aside by the Hon'ble Court to protect her right as a transgender person.

Conclusion

The organised private sector's employees are subject to a number of laws, including the Payments of Bonus Act, Equal Remuneration Act, Payment of Gratuity Act, Employees Provident Fund and Miscellaneous Provisions Act, Employees' State Insurance Act, and Maternity Benefit Act, among others. These legislations protect rights such as the right to a secure workplace with minimal amenities, the right to reasonable working hours, the right to any reward, against discrimination, etc. Furthermore, all employees are entitled to a particular set of fundamental duties and rights during the course of their job. These fundamental rights are proportionate to an employer's obligation to provide a comfortable and welcoming workplace.

Suggestions

● Awareness about the rights

The employees as well as the employers should be aware about the existing rights to avoid any argument or injustice.

● Introduction of appropriate committees

The employers should appoint certain committees to keep an eye upon the working of the organization and if there is any discrepancy then the committee should act accordingly.

● Clear legislations

There are certain provisions in the legislation dealing with the rights of the employee which create confusion and are misinterpreted. Therefore, the lawmakers should try to clearly state their intention.

● Protection of the transgender community

Although there are legislations dealing with the protection of the transgender community in the workplace, they are not sufficient as they lack on various grounds, so its scope should be widened to avoid any ambiguity.

References

[1] 2018 (2) KHC 251

[2] 2018 (2) KLT 251

[3] SLP (Civil) No.5650 of 2019

[4] Civil Appeal No. 9693 OF 2013

[5] CA No. 2365/2020.

[6] (1997) 6 SCC 241

[7] (2014) 4 MLJ 12

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