Workers’ Rights In India

What are the important rights of a private

employee under by the Indian labour law?
Although there are terms of employment defining the specific terms, the employees
in the organized private sector are governed by various laws such as Payments of
Bonus Act, Equal Remuneration Act, Payment of Gratuity Act, Employees Provident
Fund and Miscellaneous Provisions Act, Employees’ State Insurance Act, Maternity
Benefit Act, etc.

The right to safe working place with basic amenities, right to appropriate working
hours, right to any assured incentive etc. are protected under the law. Here’s a list of
essential rights of an employee under the various laws and regulations:

Right against discrimination at workplace

It is a right of every citizen of India to be in-discriminated. According to article 16 (2)
of the Indian Constitution, no citizen can be discriminated against, or be ineligible
for any employment or office under the state, on the grounds only of religion, race,
caste, sex, descent, place of birth or residence or any of them. Adherence to the rule
of equality in public employment is a being feature of Indian Constitution and the rule
of law is its core, the court cannot disable itself from making an order inconsistent
with article 14 and 16 of the Indian Constitution.

Scheduled castes and Tribes ( prevention of atrocities) act, 1989 is constituted

as a social justice oriented law, which is enacted to prevent atrocities and other form
of derogatory behaviour towards member of the scheduled caste and scheduled
Tribes. According to this law no person should be used towards either written or
spoken or by signs or by visible representation or otherwise which promotes or
attempts to promote feeling of enmity hatred or ill will against scheduled caste and
scheduled tribe members.

According to the recent supreme court judgment in 377 of Indian Penal Code

1860, LGBTQ ( lesbian, gay, bisexual and transgender queer) shall not be shown
discrimination or derogate them in any manner.
Employment Agreement
These days the norm is to enter into an employment agreement which details out the
terms of employment like, compensation, place of work, designation, work hours,
etc. The rights and obligations of both the employer and employee are listed out
clearly like non-disclosure of confidential information and trade secrets, timely
payment, provident fund etc. In case of a dispute, the agreement also contains a
mechanism for effective dispute resolution.

Maternity Benefit
The Maternity Benefit Act, 1961, provides for prenatal and postnatal benefits for a
female employee in an establishment. Post-2016 amendments, the duration of paid
leave for a pregnant female employee has been increased to 26 weeks, including
eight weeks of postnatal paid leaves.

In case of a complicated pregnancy, delivery, premature birth, medical termination,

female employees are entitled to one month paid leave. In case of tubectomy
procedure, only two weeks of additional paid leave is provided for.

Pregnant female employees cannot be discharged or dismissed on account of such

absence. Such employees are not to be employed by the employer within six weeks
of delivery or miscarriage. If dismissed, they can still claim maternity benefits.

In India, men do not get any paid paternity leave. The Central Government provides
for child care leave and paid paternal leave. But in case of private sector, it is a
discretionary right of the employer.

Provident Fund
Employee Provident Fund Organisation (EPFO) is the national organisation which
manages this retirement benefits scheme for all salaried employees. Any
organisation with more than 20 employees is legally required to register with EPFO.

Any employee can opt out of the scheme provided they do it at the beginning of their
career. The amount cannot be withdrawn at will. The rules limit the withdrawal
amount and term of years in service. Once registered, both employer and employee
have to contribute 12 % of the basic salary to the fund. If the employer does not pay
his share or deduct the entire 12 % from the employee’s salary, he can be taken to
PF Appellate Tribunal for redressal.

The amount can be withdrawn subject to a waiting period of maximum two months
for emergent needs and necessary expenses. The rules specify limits of withdrawal
and the necessary years of service for each purpose. An employee can withdraw a
maximum of 3 times, and if withdrawn before five years the amount becomes
taxable. A list of withdrawal rules of EPF .

Gratuity
The Payment of Gratuity Act, 1972 provides a statutory right to an employee in
service for more than five years to gratuity. Gratuity is paid as 15 days of salary for
every year of service of an employee done in that organization.  It is one of the
retirement benefits given to the employee. It is a lump sum payment made in a
gesture of gratitude towards the employee for their service. The amount of gratuity
increases with increment and number of years of service.

Gratuity payment =  Last month salary X  15 (days) X Number of years of service

                                 26 (working days)

 Monthly salary= last month drawn salary by the employee.

 26 = total number of working days in a month.
 15 = number of days in half of the month.

[Sec 4(3)] The maximum amount of gratuity payable to an employee should not

exceed Rs.3,50,000/- rupees.
                (According to the latest 2010 amendment the maximum gratuity payable
amount was increased to
                Rs. 10,00,000/-)

According to the  (THE PAYMENT OF GRATUITY (AMENDMENT) ACT,

2018) The maximum amount of gratuity payable to an employee should not exceed
Rs. 20,00,000/- rupees.

However, the employee if dismissed for proven lawless or disorderly conduct, forfeits
this right upon dismissal.

Gratuity Payable On Resignation of

employee After 5 Years Of Continuous
Service: Supreme Court of India

Fair Salary & Bonus for employees

The whole point of providing service for an employee is fair and appropriate
remuneration. Article 39(d) of the Constitution provides for equal pay for equal work.
The laws under The Equal Remuneration Act, The Payment of Wages Act,
mandates timely and fair remuneration of an employee. If an employee is not
receiving his/her remuneration as per the employment agreement, can approach the
Labour Commissioner or file a civil suit for arrears in salary. An employee cannot be
given wages less than the legal minimum wages, as per law.
Payment of bonus
Irrespective of loss or profits to an organization must pay Bonus to its employees
who's salary is up to Rs. 21000/-  according to the procedure envisaged in
the Payment of Bonus Act, 1965.

Eligibility: Any employee who draws salary or wage up to  Rs. 21,000 is having right
for claiming bonus
Bonus calculation purpose: according to the 2015 Amendment, Rs. 7000/- is
considered as Ceiling amount ( maximum limit ) as wage or salary for  calculation of
bonus.
Percentage of bonus: 8.33% minimum or 20% maximum of salary or wage.

Appropriate Working Hours and Overtime

All employees have a right to work in a safe workplace with basic amenities and
hygiene.

The Factories Act provides and the Shop and Establishment Acts (statewise)
protects the rights of the workers and non-workmen.

Under the most recent laws, an adult worker shall work over 9 hours per day or 48
hours per week and overtime shall be double the regular wages. A female worker
can work from 6 am to 7 pm. This can be relaxed to 9.30 pm upon explicit
permission, and payment for overtime and safe transportation facility. Apart from this
weekly holiday, half an hour break and no more than 12 hours of work on any given
day is mandated. The working hours for child workers are limited to 4.5 hours a day.

Right to Leaves
An employee has the right to paid public holidays and leaves such as casual leave,
sick leave, privilege leave and other leaves. For every 240 days of work, an
employee is entitled to 12 days of annual leave. An adult worker may avail one
earned leave every 20 days whereas its 15 days for a young worker. During notice
period an employee can take leaves for emergencies, provided the employment
agreement does not bar it.

Prevention of Sexual Harassment at

workplace
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 protects women at the workplace from sexual harassment. The Indian
Penal Code also provides a penalty of upto three years imprisonment with or without
fine, for sexual harassment.

For organisations with ten or more employees, there has to be an internal complaint
committee constituted for the aid of the victims of sexual harassment. The law
mandates that a grievance redressal policy and mechanisms be in place in such
organisations which outlines what constitutes sexual harassment, penalties,
redressal mechanism, etc. The committee should also include a senior woman as a
member, two other employees as members and a non-governmental member
My attempt here is, simply to demystify the jargons used with an employee who does
not fully understand and agree to it anyway. The HR or the company is not always
going to educate you about all this. It is not their job, but yours to learn about your
rights.

This is by no means an exhaustive list of rights and obligation of an employee under

the laws and regulations. There are so many laws governing different aspects of
labour and employment-related laws.

An incident of sexual harassment of a female at a place of work, amounts to violation

of her fundamental right to gender equality under the article 16(2) of the Indian
Constitution.