Is Dual Employment Permissible Under the Labour Laws in India?

India is known for its huge population, underemployment or unemployment and also the low rate of wages comparing to the developed nations in spite of India having a huge young and potential workforce. Many people are employed here with very low wages which not only violates the Minimum Wages Act, but makes it almost impossible for the person to meet his daily expenses. Hence, many people have or want to opt for multiple jobs or dual employment.

What does the Indian labour law say about it? Though there are plenty of labour enactments in India, everyone is silent about this issue of “dual employment” except the Factories Act, 1948. Section 60 of the said Act, says:

“60. Restriction on double employment.—No adult worker shall be required or allowed to work in any factory on any day on which he has already been working in any other factory, save in such circumstances as may be prescribed. “

The above mentioned section 60 of the Factories Act, 1948 clearly states that a worker cannot work in more than one factory on the same day. But not all organizations are covered under the Factories Act, 1948.

But most of the organizations, which are not covered under the Factories Act, 1948, while issuing the appointment letter make it clear in the appointment letter itself that the employee would not engage himself in any alternate profession, business etc. during his course of employment.

Though there are no specific provisions under the Indian labour laws barring dual employment except for Section 60 of the Factories Act, 1948, several High Courts have held that termination on the ground of dual employment is valid since dual employment reduces the efficiency of an employee and if an employee is engaged in dual employment, then he is unable to give 100% effort towards his employer. It is generally held by the Courts, that the 24 hours in a man’s life is divided into three parts of 8 hours each; 8 hours for work, 8 hours for personal activities and 8 hours for sleep. If a person is working for more than 8 hours, then he is generally upsetting the daily cycle of a human being, which would decrease his efficiency towards his employer. Apart from that he is also snatching the opportunity of another person’s employment.

Recently (2016), the Hon’ble Punjab & Haryana High Court has held that the termination of a driver who was working since 2001 to be valid, when it was found that the said driver was engaged in dual employment and salary slip and other documents to that effect were also produced before the Hon’ble Court. In another case, the Madras High Court in 2012 held that the termination to be valid when a Grade III operator was found to be engaged as a director of another company. In both the cases, the labour law advocates engaged on behalf of the employees argued but failed to establish their points.

However, each and every case while deciding the aspect of dual employment has to be deal individually and on factual aspects.

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Proving Habitual Late Attendance is Not an Easy Task

Habitual late attendance is a serious offence and it often creates issues in the smooth functioning of the business establishment. An employer can dismiss the service of the employee solely on the ground of habitual late attendance provided that such habitual late attendance is proved beyond reasonable doubt, which sometimes becomes difficult to prove.

In a particular situation, an employee was charged with habitual late attendance for six times in a year with three times warning. During the same period, the employee was once suspended too. In spite of such situation, the employee continued with his habitual late attendance and hence was dismissed from his service which was found to be valid by the Hon’ble Court.

However, in order to prove such charge of habitual late attendance, the attendance register should be produced and it should be marked that the employee came late. In absence of such documentary evidence, it is difficult to prove habitual late attendance.

The standing order also plays a vital role in deciding the fate of the employee. If the standing order states that an employee can be dismissed for habitual late attendance but a warning is mandatory before each and every dismissal, then the employee has to be given a warning for habitual late attendance and such employee under the provisions of the standing order cannot be dismissed directly.

In a case of Air India an employee was found guilty of habitual late attendance as he was found late 65 times in eight months. The Hon’ble Bombay High Court has rightly held that the dismissal was justified for such habitual late attendance which was solely due to the fault of the employee.

Clubbing of Establishments Under the Employees’ Insurance Act

The ESI Act is now applicable to all establishments having ten or more employees. However, since it is a beneficial Act, while calculating the total strength of eligible employees, the total number of employees employed in different branches, sales and service outlets has to be considered. Even if the total strength of each branch/ outlet is below ten, the entire establishment would be covered if the total strength of all branches/ outlets touches ten or more.

Two different units can be clubbed together under the ESI Act for the purpose of coverage only when there are common ownership and most importantly one unit is interdependent on the other.

In ESI Corporation vs. Tops Food Products, the ESI Corporation clubbed the establishment with another one on the ground of having common partners. However, the Learned EI Court rejected the claim of the corporation. Being aggrieved, the ESI Corporation preferred an appeal through their labour law advocates before the Uttaranchal HC which, inter alia, held that the ESI Corporation in its findings have stated that both the establishments are different and each establishment had less than ten employees and hence, the appeal was dismissed.

In another interesting case between Employees’ State Insurance Corporation vs. Kolhapur Motor Malak Sangh Ltd. the Bombay High Court has held that two different petrol pumps having same owners and functional integrity, even if they are located in different geographical locations, are liable to be covered under the ESI Act if the total strength of eligible employees reach ten or more.

Withdraw Provident Fund without Attestation of Employers

Employees often felt difficulties in getting the employer’s attestation while withdrawing provident fund. Once an employee leaves his job, the employer sometimes shows reluctance to attest the PF withdrawal form.

Now with the advent of online transaction, PF authority is allowing its members for online settlement of claims. An employee can directly file their applications online for withdrawal now. He does need the attestation of the former employer as he used to need it earlier.

Earlier an employee has to reply on the attestation from the employer. He was not entitled to withdraw the fund as attestation of employer was mandatory. Thus the new and hassle free procedure is introduced for the benefit of the employees.

Employees having universal account number (UAN) with bank details and aadhaar number attached will be able to benefit from this procedure.