Rights Of Employer And Employee & Legal Notice In Employment Matters

Employment laws in India lays down the provisions for employees as well as lawyers. Our experts formulates the rights and duties of employers and employees and describes the fundamental rights of both. Lawyers try to design the balance between the employers and employees and help make the workplace employee- friendly and comfortable.

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Overview

Employment matters in India involve the rights of employees as well as the employers with respect to the employment agreement. The employment agreement is a crucial tool in any kind of employment. It outlines the rights, responsibilities, duties, and obligations of both the employees and the employers. Along with the fundamental rights, the employees and employers are entitled to other employment rights according to the statutory provisions. These rights are provided for safeguarding the interest of the parties to the employment and protecting the rights from being violated or infringed. Any failure to uphold any obligation or violation of these rights can result in a legal dispute between them. Employment rights in India have been provided under various employment laws such as the Industrial Disputes Act, Shops and Establishments Act, etc.

Meaning

Just like there are certain rights given to all employees in India, irrespective of them working in the private or public sector, all employers are also entitled to certain rights. These basic rights are proportional to an employer’s duty to make the workplace as comfortable and employee-friendly as possible.

Rights of employer

The employers are entitled to certain rights irrespective of the sector working such as the private or public sector. Following are the rights of employers

Right of hiring or firing:

In India, the right to employment provides the employer, the right of hiring the most suitable employee for their organisation. The employer has all the rights and is entitled to fire any employee in case of any breach by the employee or failing to uphold the vision of the organization or in case of any misconduct. However, the employer must follow the process of hiring and firing in accordance with the legal provisions and avoid getting the organization into unnecessary legal disputes. The employer must not discriminate against any employee based on caste, religion, age, or gender. The right of firing an employee by the employer includes dismissing or suspending or transferring the employee.

Confidential or Non-Disclosure:

The rights of the employer include the protection of information of its clients as well as trade secrets. Thus, the employer must get a Non-Disclosure Agreement signed by the employee. It is the duty of the employer to keep the information of the clients along with the trade secrets of the organization safe. This duty continues even after the employee has left the job and goes beyond the course of employment. Additionally, it is the right of the employer for protecting the Intellectual Property Rights of the organizations against any form of infringement by the employee. 

Right of implementing Work Policy

According to the need or requirements of the organization, the employer is entitled to the right of drafting as well as implementing a work policy for the employee. Here the employer has to define a code of conduct for the employees working in the organization. The code of conduct includes leave policies, working hours, timings, the policy with regards to salary, terms and termination of the employment, grievance redressal policy. The employer has the right of terminating the employment of the employee on the failure of complying with the above-mentioned provisions.

Right of receiving notice of resignation

The rights of the employer in India also assign the employer the right to receive notice of resignation from the employer prior to leaving the organization. If no provision is mentioned in the employment agreement as to the notice period, then the employee is not required to serve a notice to the employer. Generally, the notice period in any employment varies from 1 week to 1 month, based on the HR policy of the organization.

In case no notice is served by the employee while resigning the organization, then a legal notice can be sent by the employer to the employee

Right of being notified of leave by the employee:

The employer has the right to be notified of the leave taken by the employee as per the employer’s rights in India. This entitles the employer to either approve or reject the leave application of the employee. In case of an urgent leave application, the employer can approve the application. However, in case of constant absence from work, the employer is entitled to reject the leave application of the employee. The employer also has the right to deduct the salary of the employee based on the number of leave taken by the employee.

Legal Action- A legal action can be initiated by the employer against the employee for violating the rights or terms of the employment agreement. A civil case can be filed in the Labour Court against the employee in case of failure to perform their responsibilities or acts in a way that is not in the interest of the employer.

Rights of Employee

There are various provisions under the employment laws for safeguarding the interest of the employee. However, the applicability of these provisions varies depending on the working sectors or organisations. Some of the important rights of the employees are-

Employment Agreement

The employee must obtain a written employment agreement from the employer duly signed prior to working in the organisation.

Leaves

The employee has the right to take leave along with the holidays. Leaves can be categorised into paid leave, sick leave, casual leave, and such other leaves.

On-time salary- The employee has the right to receive salary on time which is generally given at the end of every month.

Maternity Benefit

Maternity benefit is available to the women employee in case of maternity or pregnancy period. The Maternity Benefit Act 2017 provides 26 weeks of maternity leave for safeguarding the interest of pregnant women employees.

Gratuity

An employee is entitled to receive gratuity during retirement, termination or resignation or in case of death under the Payment of Gratuity Act 1972. Gratuity is the payment made by the employer on behalf of the organisation for recognising the period of service of the employee in the organisation

Provident Fund

The employees have the opportunity for opting for Employees’ Provident Funds & Miscellaneous Provisions Act, 1952, where a certain percent of the salary is deducted and invested in EPF and later is directly transferred to the PF account of the employee.

Notice Period

Employees, before resigning or terminating their employment in the organisation, are required to serve a notice concerning the same to the employer. Thus this allows the employee the right to serve the notice period according to the employment agreement.

  • Protection against sexual harassment in the workplace
  • Right to work in a safe environment along with basic amenities
  • Right of working hours
  • Additional benefits or incentives

Requirement Of Documents For Sending Legal Notice

  • Copy of employment contract
  • Copy of bank statement as evidence for non-payment of salary.
  • Appointment letter
  • Details of all additional benefits and perks.

Legislations Governing The Payment Of Salary By Organisations

CONTRACT LABOUR (REGULATION AND ABOLITION) ACT

Section 21 of the Act makes the contractor responsible for the payment of wages to the worker employees. In case the contractor fails to make payment of wages to the workers within the prescribed period the employer will be held liable for making the payment of wages in full.

WAGES ACT

Under this Act the minimum wage to be paid to the workers with respect to assigned work must be fixed and guaranteed to all the workers. The Minimum Wages Act, 1948 and the Payment of Wages Act, 1936 are the two key legislations that govern and regulate wages paid by the employer to the employee.

INDUSTRIAL DISPUTES ACT

Section 33C of the Act deals with the recovery of money that is due to be paid to the employee. According to this provision, any employee or someone authorized by the employee, or legal heir in case of the deceased employee can file an application for payment of salary to the appropriate government.

SHOPS AND ESTABLISHMENT ACT, 1953

If the employer violates any provisions of the Act or any rules made under this Act by the State Government including non-payment of wages he or she is liable to pay a fine that may extend to Rs. 2 Lakhs.

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FAQs On Real Estate

  • Approaching the Labour Commissioner
  • Approaching the Labour Court
  • Approaching Civil Court
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According to Section 9 of the Payment of Gratuity Act, 1972, the punishment is 6 months to 2 years of imprisonment or fine of Rs 10,000/- to 20,000/- or both. The punishment can be reduced from 6 months if reasons for lesser punishment are recorded in writing.

According to the Payment of Wages Act, 1936, if there are 1000 employees in an establishment, the employer must pay the employees before the expiry of the 7th day after the last day of the wage period.

It is a statutory right to receive payment of bonus and EPF. Therefore, a legal notice can be sent for non-payment of bonus or EPF amount or for non-payment of any other perks and benefits, which are statutory obligations or are agreed between the employee and the employer under the employment agreement.

The provisions of the Act are duly applicable to the contract labour employed by any factory or establishment if the employment in which they are engaged is otherwise covered by the Payment of Wages Act.

In 2011, the Supreme Court of India in an important verdict that seeks to protect the rights of employees held that all wages, salary, and sums due to the payment of pension fund, provident fund, gratuity, or any other payment for the welfare of the employee must be priorities if the company goes into liquidation.

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  2. Expert Advice – With the help of the best labour lawyer you can draft a civil suit or send legal notice to the employer or employee.
  3. Zero Stress - You do not have to worry about the paperwork & complex process at the court. Our Associate will perform all these actions at the court. 
  4. Top Quality Lawyers - Lead India will help you to choose among the best civil lawyers you can file a case in the Labour Court against the employee, if you are an employer or against the employer, you are an employee. Lawyers will help in initiating legal action for violation of rights or breach of the employment agreement. There are different associates who work with us, you can choose a lawyer depending upon their practice area, experience & user rating.
  5. Track Your Case - We provide you the opportunity to track your cases from the online dashboard. You can easily track your case status, payment status, etc.

Trishna Kumari

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