The steep increase in the number of hours spent online by children, especially in the wake of the lockdown, makes them increasingly vulnerable to the crimes of the e-world. It is therefore evident that there exists an inextricable link between child pornography and child abuse.

The Supreme Court in a suo motu petition dealing with similar issues directed the government to devise guidelines to tackle the challenges in banning child pornography. However, to date, the petition remains pending. In spite of Indian law prohibiting the consumption of child pornography in private, the disturbing trend of the migration of paedophiles online raises the question of whether there is a need to revisit the existing legal framework.

Also Read: Legal Rights for Woman

Implications

Currently, there exist two legislations dealing with child pornography. They are (i) Protection of Children from Sexual Offences Act, 2012 and its allied rules (POCSO) and (ii) The Information Technology Act, 2000 (IT Act). POCSO defines ‘child pornography’ and penalises the possession, circulation and storage of pornographic content involving a child. Section 67B of the IT Act imposes a fine and provides for imprisonment extending to 7 years for publishing, browsing, downloading and distributing content involving child pornography.

Inadequacy of legislations

The pervasiveness of the horrific social evil of child pornography heralds the prevalence of massive loopholes in these penal legislations. Notwithstanding the ban on pornographic websites in India, the country still stands at the helm of pornography consumption worldwide. Easy access to Virtual Private Networks (VPN) and proxy servers makes it effortless to conceal one’s identity when visiting such websites from unknown locations. This thwarts the process of tracking the purveyors of child crime by the investigative agencies.

Further, Section 79 of the IT Act is a safe harbour provision which grants conditional immunity to intermediaries from liabilities for third party acts. This leniency towards intermediaries provides little motivation to them to exercise timely supervision over the activities relating to child porn of third parties.

The Denouement

In defiance of the legislative provisions on child pornography, child sexual abuse material continues to be accessed. This persistent exploitative use of children is testament to the inadequacies of the existing policing of child pornography.

Earlier this year, a Rajya Sabha panel advocated a slew of legislative, technological, institutional and social measures to combat the menace of child pornography. Observing that the perpetrators always appear to be one step ahead of the regulators, the committee emphasized that its recommendations would have impact only if enforced as an integrated package of measures. This multi-pronged strategy proposed should be commended for the stringent punitive approach assumed by the panel. Imposing accountability and liability on intermediaries is a welcome move.

The need of the hour is for the government to implement a total ban on Virtual Private Networks and simultaneously, to enact stricter measures for the regulation of intermediaries.

It also becomes crucial that the carte blanche exercised by children on the internet be limited by parental control. Identifying the original source and distributors of child sexual abuse material is near impossible and warrants immediate consideration for a successful crackdown on child pornography. It is incumbent on the government to ensure positive actions for curtailing the consumption, distribution and browsing of content related to child pornography.

The time is ripe to acknowledge this elephant in the room and to adopt stricter measures in order to enhance living conditions of the building blocks of the nation. To quote the Apex Court “Innocent children cannot be made prey to these kind of painful situations, and a nation, by no means, can afford to carry any kind of experiment with its children in the name of liberty and freedom of expression,”

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COVID-19 is still prevalent in many countries around the globe, and it seems to have a long-lasting impact on economies of many nations. In the wake of COVID-19 lockdown there are number of employment-related issues faced by both employees and employers. Everyone is interested to safeguard their economic interests. There are many questions about what are the rights and obligations of employers and employees during the time of this lockdown and social distancing. Read on to know more. 

Salaries during Coronavirus Pandemic

An often asked question during this time is, whether employers have a continued obligation to pay salaries or not. As per government, if an employer can afford to pay salaries at the same rate they’ve been doing before lockdown, then they should do so. However, it is also true that for most employers it will be not viable to continue paying salaries because of the nature of the industry. In this case, it is advisable for both parties to decide mutually and come up with a solution. However, any reduction in salaries has to be as per minimum guarantees provided under the law. But as per latest development, some states are looking to suspend minimum pay legislation to help companies recover coronavirus losses. More clarity on this is expected to come in a couple of days.

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

Like we said, it depends on the kind of industry. If an organization can continue rendering services and its employers can work from home, then this way both parties will have to bear losses.

Termination during Coronavirus Pandemic

As mentioned above, termination or layoffs should be avoided as much as possible. And it is advisable to mutually decide the course of action. However, in extreme circumstances employers are permitted to terminate employees. But in order to do so, they would need to follow the mandates provided by law for these actions. 

Insurance Obligations during Covid-19

In the wake of COVID-19 situation, the government has extended the contribution period towards Employees State Insurance or ESI. From March, 2020, a relaxation has been given by government that instead of the usual 15 days’ time period for depositing the ESI Contributions, a more relaxed time period of 45 days is provided. Also, employees have been assured that they will be able to use their Insurance entitlements, even if the illness or death has happened due to COVID-19. The Life Insurance Council of India (LIC), by a press release, has confirmed that all COVID-19 related death claims shall be honored. Similarly, the government has also stated clearly that employees shall be entitled to use their ESI Contribution entitlements for illness or death caused due to COVID-19.

Work from Home option during Coronavirus Pandemic

Following the spread of epidemic, to ensure social distancing norms – all commercial and industrial establishments which are not engaged in giving essential services were instructed to be closed. However, wherever possible employers have a right to ask employees to Work from Home. But remote working environments has their own risks. Employers may end up giving personal access to the Confidential Data and Trade-related secrets of the company. Hence it goes without saying that all clauses of maintaining confidentiality of company data would be strictly applied to all employees who are working from home.

It goes without saying that during this difficult time, as a moral obligation, we all should do whatever is in the favor of humanity and working ethics. We will keep you posted with latest developments of government in this regards.

Hope we Answered Rights of Employees & Employers during Coronavirus Pandemic

Read About : IndiGo announces salary cuts for top management from May amid coronavirus lockdown

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To provide social security to more citizens the Government of India has started the National Pension System.

Government of India established Pension Fund Regulatory and Development Authority (PFRDA)– External website that opens in a new window on 10^th October, 2003 to develop and regulate pension sector in the country. The National Pension System (NPS) was launched on 1st January, 2004 with the objective of providing retirement income to all the citizens. NPS aims to institute pension reforms and to inculcate the habit of saving for retirement amongst the citizens.

Initially, NPS was introduced for the new government recruits (except armed forces). With effect from 1^st May, 2009, NPS has been provided for all citizens of the country including the unorganised sector workers on voluntary basis.

Additionally, to encourage people from the unorganised sector to voluntarily save for their retirement the Central Government launched a co-contributory pension scheme, ‘Swavalamban Scheme– External website that opens in a new window‘ in the Union Budget of 2010-11. Under Swavalamban Scheme– External website that opens in a new window, the government will contribute a sum of Rs.1,000 to each eligible NPS subscriber who contributes a minimum of Rs.1,000 and maximum Rs.12,000 per annum. This scheme is presently applicable upto F.Y.2016-17.

NPS offers following important features to help subscriber save for retirement:

• The subscriber will be allotted a unique Permanent Retirement Account Number (PRAN). This unique account number will remain the same for the rest of subscriber’s life. This unique PRAN can be used from any location in India.

PRAN will provide access to two personal accounts:

• • Tier I Account: This is a non-withdrawable account meant for savings for retirement.
  • Tier II Account: This is simply a voluntary savings facility. The subscriber is free to withdraw savings from this account whenever subscriber wishes. No tax benefit is available on this account.

Who can join NPS?

Any individual between the age of 18 and 60 years can open a pension account under NPS through eNPS using one of the following options.

Option 1 – Registration using Aadhaar

✔  You must have an ‘Aadhaar number’ (with a mobile number registered with Aadhaar)

✔  Your KYC in NPS will be done using Aadhaar through One Time Password (OTP) authentication

✔  OTP for the purpose of authentication will be sent to the mobile number registered with the Aadhaar

✔  Your demographic details and photo will be fetched from Aadhaar database and populated in online form

✔  You need to fill up all the mandatory details online

✔  You would be required to upload your scanned signature (in *.jpeg/*.jpg format having file size between 4kb – 12kb) as part of the registration process

✔  In case, you wish to replace the photo obtained from Aadhaar, you may upload a scanned photograph

✔  You will be routed to a payment gateway for making the payment towards your NPS account from Debit/ Credit card or Internet Banking

Option 2 – Registration using PAN (KYC verification by Bank)

✔  You must have a ‘Permanent Account Number’ (PAN)

✔  Bank account with the empanelled Bank for KYC verification for subscriber registration through eNPS

✔  Your KYC verification will be done by the Bank selected by you during the registration process.Name and address provided during registration should match with bank records for KYC verification. If the detail don’t match , the request is liable for rejection.In case of rejection of KYC by the selected Bank, applicant is requested to contact the Bank

✔  You need to fill up all the mandatory details online

✔  You need to upload your scanned photograph and signature in *.jpeg/*.jpg format having file size between 4kb – 12kb

✔  You will be routed to a payment gateway for making the payment towards your NPS account from Internet Banking

  In addition, NRI subscribers should,

✔  Select the Bank Account Status i.e., Non-Repatriable account or Repatriable account

✔  Provide the NRE/NRO bank account details and upload scanned copy of passport

✔  Select the preferred address for communication i.e., Overseas Address or Permanent Address (communication at overseas address would entail extra charges)

After Permanent Retirement Account Number (PRAN) is allotted, subscriber can use one of the following options:

Option 1 – eSign

For Tier I PRANs generated through Aadhaar, you have option to eSign the document by following the below mentioned steps:

✔  Select ‘eSign’ option in the eSign / Print & Courier page

✔  OTP for the purpose of authentication will be sent to your mobile number registered with the Aadhaar

✔  After Authentication of Aadhaar, Registration form will be successfully eSigned

✔  Once a document is eSigned, you need not send the physical copy of form to CRA

✔  eSign charge ₹ 5 plus GST

Option 2 – Print and Courier

✔  Select ‘Print & Courier’ option in the eSign / Print & Courier page

✔  You need to take a printout of the form, paste your photograph (please do not sign across the photograph) & affix signature

✔  You should sign on the block provided for signature

✔  The photograph should not be stapled or clipped to the form

✔  The form should be sent within 90 days from the date of allotment of PRAN to CRA at the following address or else the PRAN will be ‘frozen’ temporarily

• Central Recordkeeping Agency (eNPS)
• NSDL e-Governance Infrastructure Limited,
• 1st Floor, Times Tower,
• Kamala Mills Compound, Senapati Bapat Marg,
• Lower Parel, Mumbai – 400 013

Processing of subsequent contribution:

All existing subscribers (registered through both online and offline mode) can contribute in Tier I & Tier II account using ‘eNPS’. To contribute online, you need to

✔  Have an active Tier I / Tier II account

✔  Authenticate your PRAN using the OTP sent to your registered mobile number

✔  Pay through your Debit / Credit card or use Internet Banking option.

✔  POP Service Charges will be applicable on the contribution amount @ 0.10% (subject to minimum of ₹ 10 and maximum of ₹ 10,000 per transaction). This service charges will not be applicable for subscribers registered in eNPS through Aadhaar

Processing of APY Application:

Any individual between 18 -40 years (39 years 364 days) can initiate opening an Atal Pension Yojana account through eNPS platform using following process:

Registration using Aadhaar

✔  You must have an ‘Aadhaar number’ (with a mobile number registered with Aadhaar)

✔  Select the bank where you have an existing saving bank account

✔  Enter savings bank account number for selected bank

✔  OTP for the purpose of authentication will be sent to the mobile number registered with the Aadhaar

✔  You need to fill up all the mandatory details online

✔  APY PRAN allotment will be subject to verification of details and upload of subscriber registration file by bank.

✔  APY registration through eNPS, first contribution is mandatory. Kindly keep a sufficient balance in your savings bank account to avoid rejection.

eSign the document

Request for APY through Aadhaar, you have to eSign the document by following the below mentioned steps:

✔  Select ‘eSign’ option in the eSign.

✔  OTP for the purpose of authentication will be sent to your mobile number registered with the Aadhaar

✔  After Authentication of Aadhaar, Registration form will be successfully eSigned.

✔  Once a document is eSigned, you need not send the physical copy of form to CRA

✔  eSign charge ₹ 5 plus GST

The post National Pension System first appeared on Rightsofemployees.com.

Knowing the times that we are in, we give you, yet again, an overview of some important legal rights for women that every one must be aware of.

Free legal aid

Exercise your right to free legal aid. Often, women go to the police station unaccompanied by a lawyer to get their statement recorded, and they stand the risk of being misquoted or their statement being tampered with. The police may also treat the entire episode lightly and not lodge an FIR. So, it is necessary to have a lawyer with you while you lodge the FIR. “According to a Delhi High Court ruling, whenever a rape is reported, the SHO has to bring this to the notice of the Delhi Legal Services Authority. The legal body then arranges for a lawyer for the victim,” says Saumya Bhaumik, women rights lawyer.

Right to privacy while recording statement

Under section 164 of the Criminal Procedure Code, a woman who has been raped can record her statement before the district magistrate when the case is under trial, and no one else needs to be present. Alternatively, she can record the statement with only one police officer and woman constable in a convenient place that is not crowded and does not provide any possibility of the statement being overheard by a fourth person. The cops have to, by law, upkeep the woman’s right to privacy. It’s important for the person to feel comfortable and not be under any kind of stress while narrating the incident.

Time doesn’t matter

The police cannot refuse to register an FIR even if a considerable period of time has elapsed since the incident of rape or molestation took place. If the police tells you that they can’t lodge your FIR since you didn’t report it earlier, do not concede. “Rape is a horrifying incident for any woman, so it’s natural for her to go into shock and not want to report it immediately. She may also fear for her safety and the reputation and dignity of her family. For this reason, the Supreme Court has ruled that the police must register an FIR even if there has been a gap between the report and the occurrence of the incident,” says Tariq Abeed, advocate, Supreme Court.

Email to the rescue

According to the guidelines issued by the Delhi Police, a woman has the privilege of lodging a complaint via email or registered post. If, for some reason, a woman can’t go to the police station, she can send a written complaint through an email or registered post addressed to a senior police officer of the level of Deputy Commissioner or Commissioner of Police. The officer then directs the SHO of the police station, of the area where the incident occurred, to conduct proper verification of the complainant and lodge an FIR. The police can then come over to the residence of the victim to take her statement.

Cops can’t say no

Arape victim can register her police complaint from any police station under the Zero FIR ruling by Supreme Court. “Sometimes, the police station under which the incident occurs refuses to register the victim’s complaint in order to keep clear of responsibility, and tries sending the victim to another police station. In such cases, she has the right to lodge an FIR at any police station in the city under the Zero FIR ruling. The senior officer will then direct the SHO of the concerned police station to lodge the FIR,” says Abeed. This is a Supreme Court ruling that not many women are aware of, so don’t let the SHO of a police station send you away saying it “doesn’t come under his area”.

No arrests after sunset

According to a Supreme Court ruling, a woman cannot be arrested after sunset and before sunrise. There are many cases of women being harassed by the police at wee hours, but all this can be avoided if you exercise the right of being present in the police station only during daytime. “Even if there is a woman constable accompanying the officers, the police can’t arrest a woman at night. In case the woman has committed a serious crime, the police has to get it in writing from the magistrate explaining why the arrest is necessary during the night,” says Bhaumik.

You can’t be called to the police station

Women cannot be called to the police station for interrogation under Section 160 of the Criminal Procedure Code. This law provides Indian women the right of not being physically present at the police station for interrogation. “The police can interrogate a woman at her residence in the presence of a woman constable and family members or friends,” says Abeed. So, the next time you’re called to the police station for queries or interrogation when you have faced any kind of harassment, quote this guideline of the Supreme Court to exercise your right and remind the cops about it.

Protect your identity

Under no circumstances can the identity of a rape victim be revealed. Neither the police nor media can make known the name of the victim in public. Section 228-A of the Indian Penal Code makes the disclosure of a victim’s identity a punishable offense. Printing or publishing the name or any matter which may make known the identity of a woman against whom an offense has been committed is punishable. This is done to prevent social victimisation or ostracism of the victim of a sexual offense. Even while a judgment is in progress at the high court or a lower court, the name of the victim is not indicated, she is only described as ‘victim’ in the judgment.

The doctor can’t decide

Acase of rape can’t be dismissed even if the doctor says rape had not taken place. A victim of rape needs to be medically examined as per Section 164 A of the Criminal Procedure Code, and only the report can act as proof. “A woman has the right to have a copy of the medical report from the doctor. Rape is crime and not a medical condition. It is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion and the doctor can’t decide on this,” explains Bhaumik.

Employers must protect

It is the duty of every employer to create a Sexual Harassment Complaints Committee within the organisation for redressal of such complaints. According to a guideline issued by the Supreme Court, it is mandatory for all firms, public and private, to set up these committees to resolve matters of sexual harassment. It is also necessary that the committee be headed by a woman and comprise 50% women as members. Also, one of the members should be from a women’s welfare group.

first woman lawyer in supreme court

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The post Payment of Wages Act 1936 first appeared on Rightsofemployees.com.

Details of Amendments and Analysis

The Amendment Act has amended the Principal Act in the following manner:

Amendment of Eligibility Limit

By amending Section 2(13) of the Principal Act, the Amendment Act has now widened the scope of employees eligible for payment of bonus from those drawing salary of INR 10,000 per month, to INR 21,000 per month.

The amendment in the eligibility limit appears to be an initiative which forms a part of the Central Government’s pro-labour policy. Interestingly, the last amendment to the eligibility limit was carried out in the year 2007 and over the past decade, the economy has seen significant reforms. These economic reforms have contributed towards an exponential increase in pay-scales making this amendment to the Principal Act very important to the larger populace of the workforce which earns between INR 10,000 and INR 21,000 per month.

Calculation of Bonus

Taking the demands of the trade unions head on, Section 12 of the Principal Act has been amended to state that where the salary or wage of an employee exceeds INR 7,000 per month or the minimum wage for the scheduled employment, the bonus payable to such employee shall be calculated as if his salary or wage were INR 7,000 per month or the minimum wage for the scheduled employment, whichever is higher.

The Principal Act provided that the bonus payable to an employee shall be in proportion to his/her salary. However, where an employee’s salary was over INR 3,500 per month, for the purposes of calculating bonus, the salary was to be assumed to be INR 3,500 per month. With a view to maximise bonus earnings, the Amendment Act has increased the wage ceiling for calculation to INR 7,000 and has also factored in possibilities where the minimum wage payable to such employees may be over INR 7,000, thereby giving employees the flexibility to draw a higher amount as bonus.

How to calculate bonus liability as an employer?

Your liability depends on a number of factors like:

1. The minimum wages applicable in your state
2. The number of employees with salaries less than Rs. 10,000
3. The number of employees with salaries between Rs. 10,000 – Rs. 21,000
4. The amount of Bonus already paid

We understand that calculating the liability can be a little tricky and we wanted to simplify this process for you.  Hence we’ve created an easy to use calculator that be downloaded by clicking on the link below.

The post Payment Of Bonus (Amendment) Act, 2015 first appeared on Rightsofemployees.com.

What does law say about the pension policy for employees?

In India there is an Act called as The Employees’ Pension Scheme, 1955 which is applicable to all factories and other establishments to which the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 applies. This Scheme is meant for members of the Provident Funds subscribing to Employees’ Provident Fund Scheme, 1952 or any scheme exempted thereunder. The pension policy is introduced as a social policy to the employees to survive their livelihood after the age of retirement. This is a social benefit by which the employees do not need to worry about their sustenance in their later stage of live.

What are the eligibility criteria for availing this facility of pension?

There are two forms of membership availability under the scheme:

• • Membership of the scheme under The Employees’ Pension Scheme, 1955 is compulsory for – All Provident Fund subscribers including those employed in Exempted Establishments contributing to the Employees’ Family Pension Scheme 1971, and – To all new entrants to the Provident Funds Scheme, 1952 from November 16, 1995 onwards, automatically become members of the Employees’ Pension Scheme.

• Membership under the scheme is also available on Optional basis – Existing members of exempted and un-exempted Provident Fund Scheme as on November 15, 1995 who are not members of the Family Pension Scheme, 1971. – Members of the Family Pension Scheme, 1971 who left employment between April 1, 1993 to November 15, 1995 whether they have withdraw their benefits of not. – Beneficiaries of Family Pension Scheme, 1971 who have died on or after April 1, 1993.

What are the benefits available to members under this Scheme?

The benefits that are provided to the members under the Employees’ Pension Scheme, 1995 are:

• Pension Payment for life on Retirement/Superannuation.
• Pension Payment for life on invalidation during employment.
• Lump sum amount payment to the member by way of commutation of Pension upto one third pension amount on optional basis.
• Capital return in option formula basis upon cessation of members pension payment.

What are the benefits available to family members upon death of the member?

The benefits that are provided to the family members upon the death of the member are as follows:

• • Payment of pension to spouse for life or until remarriage.
  • Payment of pension to children (two at a time) till they attain the age of 25 years additionally along with pension payment to spouse. For total and permanently.
  • Orphan Pension to children at higher rate upon cessation of Pension Payment to spouse.
  • To Nominee / Dependant parents for life in case member is unmarried or having no eligible family member.

What are the causes of death that are covered under the scheme for members for eligibility for payment of pension after death?

The scheme covers members death risk unconditionally – irrespective of whether such death occurs:

• While in service.
• Away from employment and not contributing to the fund, or
• After retirement as a pensioner.

Is there a provision facilitating benefits for seasonal or casual employees under the scheme?

 There are following provisions that are specified to facilitate the seasonal or casual employees:

• Employees engaged seasonally in any establishment, the period of “actual service” in any year, notwithstanding that such service is less than a year, shall be treated as full year.
• Pensionable salary will be worked out “Notionally” for full month in the event if drawal of salary for a part of the month.
• Pensionary benefits shall be extended to the members without co-relating compliance by the employer of the establishment

The post Pension Policy first appeared on Rightsofemployees.com.

The Ministry of Labour and Employment, Government of India has, with effect from 1 September 2014, brought into force several important amendments to the schemes framed under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“EPF Act”) i.e. (i) The Employees’ Provident Funds Scheme, 1952 (“PF Scheme”); (ii) The Employees’ Pension Scheme, 1995 (“Pension Scheme”); and (iii) The Employees’ Deposit-linked Insurance Scheme, 1976 (“Insurance Scheme”).

Key Amendments

PF Scheme

• • The definition of ‘excluded employee’ has been amended whereby the members drawing wages exceeding INR 15,000 per month are excluded from the provisions of the PF Scheme. Accordingly, the wage ceiling for an employee to be eligible for the PF Scheme has been increased from INR 6,500 per month to INR 15,000 per month.

Pension Scheme

• New members (joining on or after 1 September 2014) drawing wages exceeding INR 15,000 per month shall not be eligible to voluntarily contribute to the Pension Scheme.
• The maximum pensionable salary for the purpose of determining the monthly pension has been revised from INR 6,500 to INR 15,000 per month.
• The pensionable salary shall be calculated on the average monthly pay for the contribution period of the last 60 months (earlier 12 months) preceding the date of exit from the membership.
• The monthly pension for any existing or future member shall not be less than INR 1,000 for the financial year 2014-15.

Insurance Scheme

• The contribution payable under the Insurance Scheme shall now be calculated on a monthly pay of INR 15,000, instead of INR 6,500.
• In the event of death of a member (on or after 1 September 2014), the assurance benefits available under the Insurance Scheme has been increased by twenty percent (20%) in addition to the already admissible benefits.

Implications of the Amendments

The amendments to the three schemes by the Government of India, post the proposal made by the Union Minister of Finance in his Union Budget speech (for the financial year 2014-2015), have enhanced the applicability, scope and benefits provided to employees under the EPF Act. However, at the same time, it has also increased the liability of the employers who would now be responsible to enroll additional eligible employees and to contribute on the increased statutory wage ceiling.

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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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