FM Sitharaman proposed to hike tax exemption on leave encashment on the retirement of non-government salaried employees to ₹25 lakh from ₹3 lakh.

Days later, revenue secretary Sanjay Malhotra told Times of India, “The ₹22 lakh benefit at 30% plus works out to almost ₹7 lakh”. Malhotra said if one spread the exemptions for over 30-35 years, it works out to more than ₹20,000 a year.

According to Malhotra, 50% of personal income taxpayers are salaried class. Hence the new leave encashment exemptions will benefit them at the time of retirement whether they choose the new tax regime now or the old today.

He said the new “leave encashment” exemption will also benefit government staff, including those working for AIIMS.

What is leave encashment?

As per India’s labour law, every salaried person is entitled to a minimum number of paid leaves every year. However, not all those leaves are utilised by an employee in a year.

Now, these unutilised paid leaves usually get carried forward to another year. As a result, an employee will be accumulated with unutilised leaves balance at the time of retirement or resignation. Henceforth, the employer is compelled to compensate the unutilised paid leaves of employees. This is known as leave encashment.

Is leave encashment taxable?

Yes, the leave encashment is taxable as per the law. If an employee receives sleave encashment during his/her job, the amount forms part of ‘income from salary’. However, one can claim some tax benefits under Section 89 of the I-T Act. One needs to fill out form 10E to claim tax relief for leave encashment.

Since the Centre has hiked tax exemption on leave encashment on the retirement of non-government salaried employees to ₹25 lakh, it would help lakhs of employees in saving their capital.

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A male Government servant (including an apprentice) with less than two surviving children, may be granted Paternity Leave by an authority competent to grant leave for a period of 15 days, during the up to 15 days before, or up to six months from the date of delivery of the child.

During such period of 15 days, he shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. The paternity Leave may be combined with leave of any other kind.

The paternity leave shall not be debited against the leave account. If Paternity Leave is not availed of within the period such leave shall be treated as lapsed.

NOTE:- The Paternity Leave shall not normally be refused under any circumstances.

Paternity Leave for Child Adoption:-

A male Government servant (including an apprentice) with less than two surviving children, on valid adoption of a child below the age of one year may be granted Paternity Leave for a period of 15 days within a period of six months from the date of valid adoption.

During such period of 15 days, he shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. The paternity leave may be combined with leave of any other kind.

The Paternity Leave shall not be debited against the leave account. If Paternity leave is not availed of within the period specified in sub-rule (1) such leave shall be treated as lapsed.

Note:- “Child” for the purpose of this rule will include a child taken as ward by the Government servant, under the Guardians and Wards Act, 1890 or the personal law applicable to that Government servant, provided such a ward lives with the Government servant and is treated as a member of the family and provided such Government servant has, through a special will, conferred upon that ward the same status as that of a natural born child.

Source:- CENTRAL CIVIL SERVICES (LEAVE) RULES, 1972 4[43-A,5[43-AA.

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What to do if employer does not pay salary on time:

Employer must pay interest if salary is delayed: HC

The employer must pay a reasonable interest if a payment, due to the employee, is made late, the Bombay High Court has held.

Whether the service contract of the employee provides for payment of interest is immaterial, said the division bench of Justices Anoop Mohta and C L Pangarkar.

Petitioner Yuvraj N Rodye was working with the Maharashtra State Electricity Board since 1975.

In 1989, Royde became entitled for arrears of salary from August 1975 onwards.

However, for no justifiable reason, the payment was delayed. It was only in September 1994 that he was told to collect his dues.

He received the amount, but applied for getting interest for the period of delay.

It is quite common in India for employers to deny salary to employees, especially at the time of firing them. They think that employee’s have no options or the resources to pursue a case against an employer. In reality, there are several things an employee can do that can land an employer in real trouble. However, the knowledge regarding the same is not available in public domain and lawyer’s advice come costly.

There are several legal process that can be followed by an employee to recover salary or wages. The first step that we recommend is sending a good notice from a credible lawyer  who has a track record of doing such matters. However, before we tell you more about that, let us get you introduced to some basic concepts in Indian labour laws that deal with the issues of non-payment of wages or salary.

India has an entire law on payment of salary called Payment of Wages Act, though it does not apply to all levels of employees. It usually applies to low-wage blue caller workers.

Let’s see what the Payment of Wages Act has to say in this matter.

Section 4 of the payment of wages Act states – 

Fixation of wage period every person responsible for the payment of wages under Section 3 shall fix periods in respect of which such wages shall be payable. No wage period shall exceed one month.

Monthly Salary Distribution Requirements:

• A person is working in an establishment with a wage not more than one thousand, the wage to the particular person shall be paid before the expiry of the seventh day.
• A person with the wage of more than one thousand shall be paid before the expiry of the tenth day.
• If the employee is terminated by the employer the wages earned by him shall be paid before the expiry of the second working day from the day his employment is terminated.

What steps can be taken by employee:

If your employer is not paying your salary, you can get these remedies.

A) Approach Labour Commissioner:

If an employer doesn’t pay up your salary, you can approach the labour commissioner. They will help you to reconcile this matter and if no solution is reached labour commissioner will hand over this matter to the court whereby a case against your employer may be pursued.

B) Industrial Dispute Act:

• An employee can file a suit under Section 33(c) of Industrial Dispute Act, 1947 recovery of money due from an employer.
• When the salary is due from the employer, the employee himself or any other person authorized by him in writing on his behalf can claim recover money.
• In case of the employee death, the authorized person or heirs make an application to the labour court for recovery of money due.
• The court will further issue a certificate on being satisfied that the salary is due and the collector shall proceed to recover the same.
• If any question arises as to the amount of money due or as to the amount at which such benefit should be computed, it would be computed according to rules under this Act.

You may also Like : How to Sue an Employer for Wrongful Termination ?

Labour Court Time Line:

Cases have to be decided by such labour court within period not exceeding Three Months provided that where the presiding officer of a labour court considers it necessary or expedient so to do, he may for reasons to be recorded in writing, extend such period by such further period as may he think fit. These are few things on What to do if employer does not pay salary on time

What about executives, managers and those who earn above INR 18,000 a month?

If you are manager or executive level employee, you can file a case against the company in the civil court under order 37 of Court of civil procedure. This is faster than the usual slow procedure in civil courts, called a summary suit. It is quite effective, but should not be pursued as a first resort. There are easier things at your disposal as well. Out of 100 cases, maybe 5-7 requires such effort. However, many lawyers are quick to jump to this. Before opting for this, ask your lawyer to exhaust other means.

What if company is not paying with a fraudulent or dishonest intent?

If an employee is affected by the company’s fraudulent activities, then he may seek some strong actions.

The following remedies would be available in such cases:

Employer Fraud Punishment:

• Section 447 of Companies Act, 2013 lays down punishment for fraud.
• Person shall be liable for imprisonment not less than 6 months which may extend to 10 years.
• Fine not less than amount involved in fraud which may extend upto three times of the fraud amount.
• Subsequent measures can be taken under Section 447 of the Act.
• An employee can also file a criminal case against the company under Indian Penal Code.

First Step To recover unpaid salary

Step 1: We strongly recommend sending a legal notice enumerating all the actions that you may take from a credible lawyer. Before going to a lawyer, ensure that they have some track record in doing such work.

Step 2: If this does not work, approaching police for a cheating case, where there is enough evidence for such fraud, is critical. At this stage, it is important to prepare a detailed case file to give to police, and your lawyer should assist you in this. A majority of such complaints are not accepted due to weak drafting and lack of prima facie evidence. This is where a good lawyer can make a lot of difference.

Step 3: Where criminal case is not an option, or does not produce results, we recommend going for a summary suit or labour court, as the case may be. In our experience of handling such matters in large numbers, we can say that not more than 10% of such disputes need to go to this stage if the matter was handled well in earlier stages. Challenge is that lawyers are more comfortable and earns more money at this stage, so if they don’t have your interest in mind they might hurry to this stage.

Important things to keep in mind when you are trying to recover your unpaid salary

The notice is a very important psychological tool, and getting the salary in less time is a psychological game. If the employer understands the consequences quickly, he will settle before you need to go to court, which keeps costs low as well. However, only a few lawyers do this kind of work because it may not be very profitable for them.

There are many cases in India where employer does not pay salary for a month or couple of months and easily get away with the same. A good example is of Kingfisher Airlines. When it shut down its operations, many workers were not paid their dues.

Hope we were able to answer the question What to do if employer does not pay salary on time

Complete story : Employer must pay interest if salary is delayed: Bombay HC

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As an employer or an employee, you have specific obligations to uphold your employment contract. Even if the contract is verbally implied, both employer and employee are bound by that contract. It can be difficult to get out of an employment contract, but there are ways it can be legally done, which saves you from facing a potential lawsuit for breaching the contract.

No, employment bond is not enforceable.

Many people think it is contract and parties are abide by it. But section 27 of indian contract act 1872 says something different.

Employment bonds are employment agreements with negative covenant. Under the Indian Law, the employment agreements with negative covenants is valid and legally enforceable if the parties agree with their free consent i.e. without fraud, coercion, undue influence, mistake and misrepresentation. The Indian courts have held that in the event of a breach of contract by the employee, the employer shall be entitled to recover damages only if a considerable amount of expenditure was borne by the employer. Indian law mandates the employment bonds to be “reasonable” in order to be valid. The term reasonable remains undefined anywhere in the Indian law and therefore the courts have given meaning to “reasonable” depending upon the facts and circumstances of the cases. The proposition which has emerged till now is that conditions stipulated in the contract should be necessary to protect the interest of the employer and compensate the loss caused by breach of contract. Additionally, the penalty or compulsory employment period stipulated should not exorbitant.

How to Challenge the enforceability of Employment Bond?

The validity of Employment bonds can be challenged on the basis of Section27 of the Indian Contract Act. Section 27 of the Indian Contract Act, 1872 prohibits any agreement in restraint of trade and profession. Any agreement in trade and profession according to Section 27 is void.

As per the Section 27, any terms and conditions of an agreement which directly or indirectly compels the employee to serve the employer or puts a restriction on them joining the competitor or other employer is not valid under the Indian law, The employee has right to resign from the employment even if he has agreed in the employment bond to serve the employer for a specific period of time.

For an employment bond to be valid under Indian law, it has to be proved that it is necessary for the freedom of trade. In the case where the employer is able to prove that the employee is joining the competitor to disclose the trade secret then the court may issue an injunction order restricting the employee from joining the competitor. If an agreement is challenged on the grounds of violating the provision relating to restraint of trade, the onus is on the party supporting the contract to show that restraint is reasonably necessary to protect his interests.

Following are the requirements of a valid employment bond agreement.

1. The agreement must be signed by the parties with free consent.
2. The conditions stipulated must be reasonable and:

• The conditions imposed on the employee must be proved to be necessary to safeguard the interest of the employer.

1. The employment bond is to be executed on a stamp paper of appropriate value in order to be valid and enforceable.

Remedies Available to Employer and Employee

If an employment bond is breached, the employer might be entitled to compensation. The compensation awarded should be reasonable to compensate the loss and should not exceed the penalty, if any stipulated in the contract. The court computes the reasonable compensation amount by computing the actual loss incurred by the employer having regard to all facts and circumstances of the case. Even if the bond stipulates payment of any penalty amount in the event of breach, it does not mean that the employer shall be entitled to receive the stipulated amount in full; the courts shall determine the reasonable amount of compensation to be paid. One interesting question arises, whether the employers are entitled to seek for reinstatement of their employee or obtain restraining order against the employee from joining any competitor or another employer? The Supreme Court while dealing with a similar situation has held that specific performance action cannot be sought for breach of contract of personal service or bond and therefore employer shall not be entitled for reinstatement of their employees as relief in the event of breach of bond. We have witnessed the trend that courts are not willing to grant an injunction against the employees restricting their employment with another employer unless it is necessary for the protection of proprietary interests or trade secrets of the employer.

The court considers the actual expenses incurred by the employer, the period of service by the employee, the conditions stipulated in the contract to determine the loss incurred by the employer to arrive at reasonable compensation amount.

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It is not the constitution of the establishment as to whether it is a public limited company, private limited company, cooperative society, partnership or proprietory form that decides the working hours, leaves and other service conditions of the employees but it is the labour laws applicable to the kind of business being transacted that decides these matters.

Different Acts have set out different rules pertaining to hours of work and the spread over of work with slight changes as applicable to the respective state. Shops and Establishments Act being a state Act is confined only to that state whereas the other Acts are central Acts and will be similar in many respect subject to state rules attached thereto.

Laws Lined Up for 2018                   

Enhancement of the gratuity ceiling: The Payment of Gratuity Act, 1972 (“Gratuity Act”) entitles employees who have been in continuous employment for a period of 5 years to gratuity at the rate of 15 days wages for every year of continuous service, capped at INR 10,00,000. The Payment of Gratuity (Amendment) Bill, 2017 (“Gratuity Bill”) was introduced in the Lower house of Parliament (Lok Sabha) on December 18, 2017 with a view to allow the Government the discretion to (i) prescribe the gratuity ceiling, and (ii) the period of maternity leave that would deemed to constitute continuous service.  It is anticipated that the Gratuity Bill will be passed by the Lower house in the next session of Parliament and that the ceiling is likely to be enhanced from INR 10,00,000 to INR 20,00,000.

Consolidation of Labour Laws: As part of its election manifesto, the current Government had promised to review the Indian employment laws to reduce the multiplicity of employment legislations and keep the legislations in sync with the requirements of the evolving labour market. In furtherance of the same, the Government has sought to consolidate 44 central employment laws into 4 labour codes:

1. Labour Code on Industrial Relations — Consolidating the Industrial Disputes Act, 1947, the Industrial Employment (Standing Orders) Act, 1946 and the Trade Unions Act, 1926;
2. Labour Code on Social Security and Welfare — Consolidating social security laws such as the Employees Provident Funds and Miscellaneous Provisions Act, 1952, the Employees State Insurance Act, 1948, Maternity Benefit Act, 1961, the Employees Compensation Act, 1923, etc.;
3. Code on Wages — Consolidating the Minimum Wages Act, 1949, the Payment of Wages Act, 1936, Payment of Bonus Act, 1965 and Equal Remuneration Act, 1976; and
4. Labour Code on Occupational Safety, Health & Working Conditions.

The code that is likely to come into effect soon is the Code of Wages, 2017 (“Wage Code”). It is anticipated that the Government was working towards having the Wage Code passed in the lower house (Lok Sabha) of Parliament in the budget session and this might be taken up in the next session of Parliament.

National Employment Policy: The Government of India has proposed the introduction of a National Employment Policy to address the growing rate of unemployment in India. The proposed aim of the National Employment Policy is to create a comprehensive action plan to ensure that quality jobs are created across various sectors. It appears that this would be done by incentivizing employers to hire, by allowing relaxations in employment law compliances or bearing a part of the cost for social security payments.

LGBTIQ Rights: The Supreme Court of India, in its landmark judgment in August 2017, observed that the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Indian Constitution. Further, the Supreme Court on January 8, 2018, stated that it would review its position on Section 377 of the Indian Penal Code, 1860, i.e., the criminalization of sexual intercourse between consenting adults of the same sex. With respect to transgender persons, the Transgender Persons (Protection of Rights) Bill, 2016, inter alia, seeks to prohibit the discrimination of transgender persons in terms of employment, healthcare services and access to facilities.

Law Governing Factories: Amendments to the Factories Act, 1948, has been in the pipeline for the past two years. The amendments are primarily aimed at allowing the state government to increase the number of overtime hours that employees can work and prescribe rules in relation to exemptions that could be given to various categories of employees. These measures would allow flexibility to State Governments to undertake initiatives to encourage the development of industries.

Changes to the Law on Contract Labour: The Government has released a draft bill for the amendment of the law governing the engagement of contract labour in India – the Contract Labour (Regulation and Abolition) Act, 1970 (“CLRA”). The bill primarily intends to exclude workers who are regularly employed in the establishment of the contractor from the definition of the term ‘contract labour’ for the purposes of the CLRA.

2018 Budget Proposals to Provident Fund Contributions: The Finance Minister in his 2018 Budget speech has proposed that the Government will make provident fund contributions of 12 percent of wages for new employees for a period of three years and reduce the mandatory contribution limit from 12 percent to 8 percent for women employees for the first three years of employment. We would, however, have to wait for amendments to be made to the Employees Provident Funds and Miscellaneous Provisions Act, 1952, and allied schemes, to understand the manner in which these proposals will be implemented.

Most Indian employment laws were drafted primarily for traditional models of workforce engagement in sectors such as manufacturing and infrastructure. These laws are failing to keep pace with the needs of new and emerging sectors that are driven by cutting edge technology, increased automation and creative forms of workforce engagement, including gig/on-call working. While the above reforms are much needed, standing at the threshold of the artificial intelligence revolution, India needs to relook at its employment laws to ensure that businesses are not constrained, innovation and entrepreneurship are encouraged and employee rights are not compromised.

The post Indian Labour Law Reforms Aligned for 2018 first appeared on Rightsofemployees.com.

Wrongful termination is one the most common types of employment dispute. Every year thousands of employees are subjected to wrongful termination, but are completely unaware of the correct legal course against it. Before considering about taking an action against the employer, you need to establish whether the termination was wrongful or not.

Wrongful termination is difficult to prove, because most states have an “at will” policy when it comes to employment. Under this policy, either the employee or the employer may terminate employment at any time without consequence. However, there are illegal reasons to terminate an employee. Winning a wrongful termination suit requires that you produce sufficient facts that you were terminated illegally.

If you are considering suing your employer for wrongful termination, you should first consult an employment attorney. Below are a few steps towards filing a successful claim:

Determine whether you are an at-will employee;

Review your employment contract, which should give your insight on what type of employee you are, for what reasons you may fired, and the steps you need to take to file a complaint;

File a complaint with your human resources department; and

If your filed complaint does not turn out in your favour, speak with your attorney who, if need be, will be able to push forward with your claim.

What can you do?

Start by approaching the human resource department of your company. It will be in a position to explain where you stand legally and will help resolve the issue. You can also lodge a formal complaint directly with the department and should give it adequate time to evaluate your situation and suggest a solution. If you are not satisfied with the response, you can file a court case.
In case of a violation of your contract, you can file a case in a civil court. Cases of mental harassment can be filed in the civil court as well as a criminal court, if you add the charge of criminal intimidation. Consult a lawyer to see if your case can be settled through arbitration or by a labour tribunal as this is easier and more cost-efficient.

If you decide to take the matter to court, ensure that you prepare yourself well for it. Maintain a record of all the incidents that you think were wrong or in violation of your rights. If possible, note down the date and time as well. This will be immensely useful to your lawyer, who will be able to ascertain if you have a case at all. You can use this information even while discussing the matter with the HR team.

Looking toward the future, practice answering interview questions about the termination, and gather references from contacts to bolster your candidacy for jobs. Don’t let this reversal stand in the way of your success.

The post How to Sue an Employer for Wrongful Termination ? first appeared on Rightsofemployees.com.

Even though companies across the world are coming up with people friendly policies, there is always a small section of employees who like to take   advantage of the same. Often employees leave organizations without serving notice in the lure of better chances elsewhere. But this is only a short term advantage. Barring some countries, most good organizations require a ”service or relieving certificate” as proof of employment.

The signed and   stamped ” Letter of Appointment” between and employer and employee is a legally valid document in the court of law. If an appointment letter clearly spells out the conditions of termination and notice, and the employee signs the document, then he/she must abide by the terms. However, most organization have a condition of ”lieu of”. Typically the notice period can be waived ”in lieu of” pay deduction. And most employees exercise that option by negotiating the difference with the other organization. There are always exceptions but no ethical   organization can force an employee to serve the notice unless there is a pressing business need or ”notice pay” refusal from employee or monetary advances provided to the employee.

The Specific Relief Act says that a Contract of Personal Service cannot be enforced in a Court of Law which means that if an employee quits before the Notice period the Employer can only recover the Notice pay. No Employer can force an Employee to complete the Notice period, it is for the employee to complete the Notice period in order to take his full salary and the relieving letter.

You can leave the job by either giving notice or payment in lieu of notice.The Company’s policies and procedures are the supplementary aspects. The constitution of India provides the fundamental right to every person to choose the profession of his choice and any agreement contrary to this is invalid. By putting the clause in service regulation that it is company’s discretion to accept the notice or not is against the provisions of constitution of India. Hence company cannot threaten you by showing this clause. The Company cannot force you to serve the entire notice period.

Also Read:

• How to file Income Tax Returns ( ITR )?

• EPF v/s PPF v/s VPF: Which One is Better?

• HRA Exemption Rules

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Mediation, one form of alternative dispute resolution (ADR), can be an effective way of resolving a dispute out of court. It is typically limited to civil cases, although some non-violent criminal acts (such as harassment) may be resolved through mediation. Mediation differs from arbitration but they are both alternatives to litigation. This section contains articles providing an overview of mediation, the types of cases that may be mediated, how it works with small claims, and some of its key advantages. Additionally, you can find some answers to common questions about mediation.

TYPES OF MEDIATION

2. Court – Referred Mediation– It applies to cases pending in Court and which the Court would refer for mediation under Section. 89 of the Code of Civil Procedure, 1908.
3. Private Mediation – In private mediation, qualified mediators offer their services on a private, fee-for-service basis to the Court, to members of the public, to members of the commercial sector and also to the governmental sector to resolve disputes through mediation. Private mediation can be used in connection with disputes pending in Court and pre-litigation disputes.

ADVANTAGES OF MEDIATION

• • The parties have control over the mediation in terms of 1) its scope (i.e., the terms of reference or issues can be limited or expanded during the course of the proceedings) and 2) its outcome (i.e., the right to decide whether to settle or not and the terms of the settlement.)

• • Mediation is participative. parties get an opportunity to present their case in their own words and to directly participate in the negotiation.

• • The process is voluntary and any party can opt out of it at any stage if he feels that it is not helping him. the self-determining nature of mediation ensures compliance with the settlement reached.

• • The procedure is speedy, efficient and economical.

• • The procedure is simple and flexible. It can be modified to suit the demands of each case. Flexible scheduling allows parties to carry on with their day-to-day activities.

• • The process is conducted in an informal, cordial and conducive environment.

• • Mediation is a fair process.  the mediator is impartial, neutral and independent. the mediator ensures that pre-existing unequal relationships, if any, between the parties, do not affect the negotiation.

• • • The process is confidential.

  
  
  

  The process facilitates better and effective communication between the parties which is crucial for a creative and meaningful negotiation.

• • Mediation helps to maintain/ improve/ restore relationships between the parties.

• • Mediation always takes into account the long-term and underlying interests of the parties at each stage of the dispute resolution process – in examining alternatives, in generating and evaluating options and finally, in settling the dispute with focus on the present and the future and not on the past. this provides an opportunity to the parties to comprehensively resolve all their differences.

• • In mediation, the focus is on resolving the dispute in a mutually beneficial settlement.

• • A mediation settlement often leads to the settling of related/connected cases between the parties.

• • • Mediation allows creativity in dispute resolution. parties can accept creative and non-conventional remedies which satisfy their underlying and long-term interests, even ignoring their legal entitlements or liabilities.

  
  
  

  When the parties themselves sign the terms of the settlement, satisfying their underlying needs and interests, there will be compliance.

• • Mediation promotes finality.  the disputes are put to rest fully and finally, as there is no scope for any appeal or revision and further litigation.

• • Refund of court fees is permitted as per rules in the case of settlement in a court-referred mediation.

TYPES OF DISPUTES FOR MEDIATION

Judges who refer the cases for settlement through any of the ADR methods are known as referral judges. The role of a Referral Judge is of great significance in court-referred mediation. All cases are not suitable for mediation. Only appropriate cases which are suitable for mediation should be referred for mediation. Success of mediation will depend on the proper selection and reference of only suitable cases by referral judges.

When do you need mediation?

Mediation can be used as an alternative to a court trial in almost all civil cases, regardless of the topic of the dispute or the details of the case. There are, however, a number of factors that make mediation more appropriate for a particular dispute. These factors include:

• A willingness of both parties to participate in mediation
• The need for the parties to find a way to to preserve their relationship
• The potential for a negotiated outcome that satisfies the needs and interests of both parties better than a judge’s decision.

What are the outcomes of mediation?

If the parties can come to an agreement on how to resolve their dispute, the mediator will record the details of the agreement and it will be signed by all parties. At this point, the case is closed and will not proceed to a court trial.

If an agreement cannot be reached, the case will then be prepared for a trial. Mediation may not have completely failed even if the case is not settled, the issues at the heart of the dispute are often clarified which may enable faster proceeding of the court trial.

There are many ways that litigation lawyer can help you resolve your dispute through mediation. A litigation lawyer will represent you during the mediation session as well as help you with a number of things that you need to consider. To get the most out of mediation, you should consider:

• Identifying the core issues and facts that are the source of the conflict
• What is important to you in the resolution of the dispute
• How best to communicate this information to the other party and the mediator
• The possible costs and benefits of a trial if mediation is unsuccessful

At Rose Lawyers, we often encourage our clients to seek mediation rather than a court trial. This is because we have your interests in mind and we know that mediation can save you the time and expense of going to court while still receiving a favourable outcome.

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1. Leave is the right of all employees 

Generally, an employee is given the following leaves during the course of his or her employment:

1. 1. Casual Leave: This is provided to an employee to take care of urgent or unseen matters like a family emergency; for example, employees can apply for casual leave to attend a parent-teacher meeting called for by their child’s school.
2. Sick Leave: Sick leave is provided when an employee gets sick.
3. Privilege or Earned Leave: Privilege or earned leaves are long leaves that are planned for in advance.
4. Other Leaves – Apart from the above mentioned leaves, there are some other paid, unpaid or half-paid leaves which are provided at the discretion of the company. Study leave and bereavement leave are two such examples.

Medical Certificate for one-day sick leave

Usually, when a sick leave exceeds beyond two or three days, depending upon the company policy, employees are requested to submit a medical certificate to sanction the leave. However, in the case of one-day sick leave, an employer should not ask for a medical certificate.

In one of its judgements, the Supreme Court mentioned that an employee will not necessarily seek medical attention if he or she is ill for just a day.

Encashment Leave

An employee can take encashment leave while quitting service, superannuation, discharge, dismissal or death. Leave encashment should be as per average daily wages of an employee.

Leave during notice period

An employee can take leave during notice period, provided it is for a genuine reason like maternity, health issues, etc.

The Delhi High Court, in one of its judgement, said that an employee can take leave during the notice period if nothing is mentioned in the appointment letter which bars the employee from taking leave during the notice period, if he has leave to his credit and is entitled to the same.

2. Protection from sexual harassment at the work place

It is the responsibility of the employer to ensure that his/her employees, especially female employees, are protected while at work. All incidents of sexual harassment – regardless of how big or small they are or who is involved – require employers or managers to respond quickly and appropriately. Just because someone does not object to inappropriate behaviour in the workplace, it does not mean that they are consenting to the behaviour.

The employees are provided with the right to go on a strike without giving a notice, however if the said employee is a public utility employee, then he would be bound by the prohibitions laid down in the Industrial Disputes Act 1947, Section 22(1) lays down certain conditions on Strikes by public utility employees, the conditions includes giving out prior notice to the employer six weeks before going on such strike.

9. Right to Equal Pay for Equal Work

Understanding your rights as an employee is the first step.

The post Rights of Employees first appeared on Rightsofemployees.com.

 
 
 
1. Tampering with computer source Documents Sec.65
2. Hacking with computer systems , Data Alteration Sec.66
3. Sending offensive messages through communication service, etc Sec.66A
4. Dishonestly receiving stolen computer resource or communication device Sec.66B
5. Identity theft Sec.66C
6. Cheating by personation by using computer resource Sec.66D
7. Violation of privacy Sec.66E
8. Cyber terrorism Sec.66F
9. Publishing or transmitting obscene material in electronic form Sec .67
10. Publishing or transmitting of material containing sexually explicit act, etc. in electronic form Sec.67A
11. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc.
in electronic form Sec.67B
11. Preservation and Retention of information by intermediaries Sec.67C
12. Powers to issue directions for interception or monitoring or decryption of any information through
any computer resource Sec.69
13. Power to issue directions for blocking for public access of any information through any computer
resource Sec.69A
14. Power to authorize to monitor and collect traffic data or information through any computer resource
for Cyber Security Sec.69B
15. Un-authorized access to protected system Sec.70
16. Penalty for misrepresentation Sec.71
17. Breach of confidentiality and privacy Sec.72
18. Publishing False digital signature certificates Sec.73
19. Publication for fraudulent purpose Sec.74
29. Act to apply for offence or contraventions committed outside India Sec.75
21. Compensation, penalties or confiscation not to interfere with other punishment Sec.77
22. Compounding of Offences Sec.77A
23. Offences with three years imprisonment to be cognizable Sec.77B
24. Exemption from liability of intermediary in certain cases Sec.79
25. Punishment for abetment of offences Sec.84B
26. Punishment for attempt to commit offences Sec.84C

Note : Sec.78 of I.T. Act empowers Police Inspector to investigate cases falling under this Act

27. Offences by Companies Sec.85
28. Sending threatening messages by e-mail Sec .503 IPC
29. Word, gesture or act intended to insult the modesty of a woman Sec.509 IPC
30. Sending defamatory messages by e-mail Sec .499 IPC
31. Bogus websites , Cyber Frauds Sec .420 IPC
32. E-mail Spoofing Sec .463 IPC
33. Making a false document Sec.464 IPC
34. Forgery for purpose of cheating Sec.468 IPC
35. Forgery for purpose of harming reputation Sec.469 IPC
36. Web-Jacking Sec .383 IPC
37. E-mail Abuse Sec .500 IPC
38. Punishment for criminal intimidation Sec.506 IPC
39. Criminal intimidation by an anonymous communication Sec.507 IPC
40. When copyright infringed:- Copyright in a work shall be deemed to be infringed Sec.51
41. Offence of infringement of copyright or other rights conferred by this Act. Any person who knowingly
infringes or abets the infringement of Sec.63
42. Enhanced penalty on second and subsequent covictions Sec.63A
43. Knowing use of infringing copy of computer programme to be an offence Sec.63B
44. Obscenity Sec. 292 IPC
45. Printing etc. of grossly indecent or scurrilous matter or matter intended for blackmail Sec.292A IPC
46. Sale, etc., of obscene objects to young person Sec .293 IPC
47. Obscene acts and songs Sec.294 IPC
48. Theft of Computer Hardware Sec. 378
49. Punishment for theft Sec.379
50. Online Sale of Drugs NDPS Act
51. Online Sale of Arms Arms Act.

Source:ncib.in

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In this article, we will try and set down the manner and procedure for termination of service, and the monetary entitlements thereto.

‘Workman’ and ‘Non-workman’

Employees in India are generally categorized as a ‘workman’ or a non-workman. The term ‘workman’ has been defined under the Industrial Disputes Act, 1947 (“ID Act”), and would inter-alia mean all persons employed in any industry but does not include an employee who is in a managerial, administrative or supervisory role. Apart from the definition under the ID Act, there is no set formula to distinguish between a workman and a non-workman, and the position has been tested and established through various judgments, depending upon the nature of work being carried out by an employee.

An employee who is considered to be a workman will be governed by the ID Act, and their termination of service will have to be in accordance with the provisions of the ID Act.

Types of Termination of employment

Termination of employment may take place due to misconduct, discharge or retrenchment.

Misconduct

Termination of employment can be for misconduct, for which the employer is required to conduct disciplinary proceedings. The procedure to terminate an employee in India, for conducting a disciplinary proceeding has been set out under the law. It includes constituting and having a disciplinary panel, serving a show cause notice to the errant employee, and giving the employee a reasonable chance to put forth his defense. Proceedings have to be conducted in a fair manner, keeping in mind principles of natural justice.

In some cases, the outcome of the disciplinary proceeding may justify dismissal without notice, and any compensation. Under law, the term misconduct provides a list of circumstances and events which would amount to misconduct. It is an inclusive list, and hence, employers have the right to include in their company policies/ service rules, such other events, as it may deem fit, which would in their line of business, amount to misconduct. Misconduct includes wilful insubordination or disobedience; theft, fraud or dishonesty; wilful damage or loss of employer’s property; bribery; habitual lateness or absence; striking unlawfully and sexual harassment.

The aforesaid procedure for termination will apply to all employees whether workman or non-workman.

Discharge

The termination of employment of employees who are not workman are governed by the notice period in their employment contract, and the shops and establishment act (“S&E’”) of the State in which they work. Generally, the State S&E’s provide for at least one month’s notice of termination, or pay in lieu of termination, and in some instances, termination needs to be with cause, and in some other cases, the employer needs to pay compensation for terminating the employment. The notice of dismissal under an employment contract should not be less favourable than what is prescribed under law.

Retrenchment

The Industrial Dispute Act sets out the steps to be undertaken for retrenchment. The term retrenchment has been defined to mean termination by the employer of employment of a worker for any reason, other than disciplinary grounds, with certain exceptions.

An employer who proposes to retrench a workman, who have been continuously employed for more than one year, must give one month’s notice (together with the reason for the retrenchment) or pay in lieu of such notice to the workman. The employer must also inform the local labour authorities of the retrenchment within a stipulated time frame.

Rules for Retrenchment Compensation

Additionally, employers are also obliged to apply the “last in-first out” rule in selecting the workman for retrenchment except for reasonable cause. A retrenched workman is entitled to retrenchment compensation as per the provisions of the ID Act, which is calculated at the rate of 15 days wages for every year of continuous service. Certain establishments (factories, mines, plantations) employing over 100 workers may not be retrenched unless three months’ written notice, stating reasons for the retrenchment, or pay in lieu of notice, is given to the worker. Furthermore, prior approval from the relevant governmental authority must be taken before the retrenchment is made.

Severance Pay

Upon termination of employment of any employee, the employer is required to clear all dues, which are payable to the employee at the time of the termination. Some of these payments are as follows:

1. Notice pay, where notice of termination has not been given;
2. Salary for the days worked, but not paid for, during the month where the employee has been terminated;
3. Payment of gratuity for employees who have completed at least 5 years of service, in terms of the Payment of Gratuity Act 1972. This act is applicable to establishments which have 10 or more employees. The gratuity is calculated at 15 days salary for every completed year of service;
4. Leave encashment, for the leaves accrued, but not used by the exiting employee;
5. Statutory bonus, if the employee is eligible for the same. Employees who are earning up to Rs. 10,000 per month and who has worked in an establishment for not less than 30 working days in a financial year will be entitled to statutory bonus under the Payment of Bonus Act, 1965;
6. Retrenchment compensation, if the employee is a workman, and his services have been retrenched;
7. Such other dues that may have been contractually agreed between the employer and the employee, or is payable under the employer’s company policies;
8. Assist the employee in making applications to the appropriate authority, for withdrawal of the provident fund dues, accumulated to the credit of the existing employee.

There may be other dues payable, and such will vary from employment to employment.

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What is ‘sexual harassment’?

Is this Act only for women?

Yes, this Act is only for women who are sexually harassed in workplaces.

Is this Act only for working women?

No, this Act is for any woman who is harassed in any workplace. It is not necessary for the woman to be working at the workplace in which she is harassed. A workplace can be any office, whether government or private.

As an employer, what do you have to do under this law?

• You need to set up an ‘Internal Complaints Committee’ if you employ more than 10 people to handle cases of sexual harassment at your workplace.
• In case your workplace has more than one office or unit, then there should be an Internal Complaints Committee in each branch.

There is no sexual harassment at my office. Do I still have to follow the instructions regarding setting up an Internal Complaints Committee?

Yes, even if there are no cases of sexual harassment at the moment, it is still necessary for the committee to be set up (if you employ more than 10 workers) and for all rules to be followed.

Am I not allowed to approach the police and courts because of this Act?

No, the Act gives you a choice between dealing with the offender within the office or approaching a court. If you wish, you can file a criminal complaint instead of approaching your Internal/Local Complaints Committee.

What if the victim makes a wrong complaint because she does not like the offender?

If the Committee finds that the woman (or her representative) made a wrong complaint because she does not like or hates the offender or that she gave them fake documents, it can ask the employer or District Officer to take action against the woman or person according to the service rules of the workplace. If there are no service rules, action can be taken in any manner recommended by the Committee (Rule 10 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013). This can be by way of:

How will the Committee decide whether the complaint is false?

• If the victim is unable to provide enough proof to the Committee, it does not automatically make her complaint false.
• The Committee will have to conduct an inquiry to find out if she made a wrong complaint on purpose.
• Example: If there is a complaint initiated by Isha against Rohit but there are no witnesses or documents or any indication whatsoever that there was sexual harassment, then this will not be regarded as a false complaint. However, if Isha wrote an email where she told a friend she was lying, this may be a malicious or false complaint.

What happens if witnesses give false accounts?

If the Committee finds that a witness has told them things that did not happen or given fake documents, it can recommend to the employer or District Officer that action be taken according to the service rules. If there are no service rules, the government can make additional rules for this purpose.

Can any information about the complaint or the inquiry be made public?

No. It is unlawful to publish any information relating to a sexual harassment complaint under this law to the media. This information includes any details of the victim, offender and witnesses, the settlement or inquiry proceedings and the Committee recommendations.Committee recommendations and settlements can be published so long as there is no information in there which can identify the victim or witnesses.Example:If Rohit is found guilty of harassing Isha, none of the information relating to their identities and contact details can be made public. However, the recommendations of the Committee which required Rohit to formally apologise to Isha and leave the organization can be made public. This information can be made public without disclosing Rohit or Isha’s names or other details.

Can a case under this Act be taken to Court?

No, no case can be taken to Court unless the victim herself or the Committee files a case before the Court.

Which Court can hear this case?

Any court, as long as it is a Metropolitan Magistrate or a Judicial Magistrate of the first class or above.

Can someone be arrested without a warrant under this Act?

No, a warrant is required for arrest.

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