Employers rights under labour laws

Employers Rights Under
Labour Laws
Vinod Bidwaik

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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

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.


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.


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.


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.

…..Continued
c) 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.

…..Continued

g) 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.

Employer’s Right

An 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.


Employer’s Right

An 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)


Employer’s Right

An employee must observe honesty & commit
no 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 employee


Employer’s Right

An 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.


Employer’s Right

An employee must observe punctuality in
attendance
• 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.


Employer’s Right

Must 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.


Employer’s Right

• 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)

Employer’s Right


• 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)

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.


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.

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.

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.

Employer’s Right
An 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.


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.

Employer’s Right
An 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.


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.

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.


Employer’s Right

An 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.


Employer’s Right

An 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.


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.

Employer’s Right

An 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 statutory

Employer’s Right

An employee can not derilict in his duties
provisions touching the relationship.
• The moments such contract comes into
existence, the employer becomes entitled to
issue directors, regarding the manner of doing
work.


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.
•


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.

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}


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; or
2] a demand or request for sexual favours; or
3] sexually coloured remarks; or
4] showing pornography; or
5] any other unwelcome physical, verbal or non verbal
conduct of sexual nature

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.


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.


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.


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.


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.


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.

Thank you!


Employers rights under labour laws

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